[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2014 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 7
Agriculture
________________________
Parts 400 to 699
Revised as of January 1, 2014
Containing a codification of documents of general
applicability and future effect
As of January 1, 2014
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Printing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Printing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P R I N T I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC 20402-
0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
SUBTITLE B--Regulations of the Department of Agriculture
(Continued)
Chapter IV--Federal Crop Insurance Corporation,
Department of Agriculture 5
Chapter V--Agricultural Research Service, Department
of Agriculture 409
Chapter VI--Natural Resources Conservation Service,
Department of Agriculture 453
Finding Aids:
Table of CFR Titles and Chapters........................ 631
Alphabetical List of Agencies Appearing in the CFR...... 651
List of CFR Sections Affected........................... 661
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 7 CFR 400.27 refers
to title 7, part 400,
section 27.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 2014), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2104, 24 hours a day. For payment by check,
write to: US Government Printing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.ofr.gov. For more
information, contact the GPO Customer Contact Center, U.S. Government
Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal-
register.
The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Printing Office. It is
available at www.ecfr.gov.
Charles A. Barth,
Director,
Office of the Federal Register.
January 1, 2014.
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: Parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1759, 1760-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 2014.
The Food and Nutrition Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of the
Managing Editor, assisted by Ann Worley.
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 400 to 699)
--------------------------------------------------------------------
SUBTITLE B--Regulations of the Department of Agriculture (Continued)
Part
chapter iv--Federal Crop Insurance Corporation, Department
of Agriculture............................................ 400
chapter v--Agricultural Research Service, Department of
Agriculture............................................... 500
chapter vi--Natural Resources Conservation Service,
Department of Agriculture................................. 600
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER IV--FEDERAL CROP INSURANCE CORPORATION, DEPARTMENT OF
AGRICULTURE
--------------------------------------------------------------------
Part Page
400 General administrative regulations.......... 7
401
[Reserved]
402 Catastrophic risk protection endorsement.... 75
403-406
[Reserved]
407 Area risk protection insurance regulations.. 78
408-411
[Reserved]
412 Public information--Freedom of information.. 119
413-456
[Reserved]
457 Common crop insurance regulations........... 120
458
[Reserved]
[[Page 7]]
PART 400_GENERAL ADMINISTRATIVE REGULATIONS
Subparts A-B [Reserved]
Subpart C_General Administrative Regulations; Mutual Consent
Cancellation
Sec.
400.27 Applicability.
400.28 Mutual consent criteria.
400.29-400.36 [Reserved]
Subparts D-E [Reserved]
Subpart F_Food Security Act of 1985, Implementation; Denial of Benefits
400.45 Applicability.
400.46 Definitions.
400.47 Denial of crop insurance.
400.48 Protection of interests of tenants, landlords or producers.
400.49-400.50 [Reserved]
Subpart G_Actual Production History
400.51 Availability of actual production history program.
400.52 Definitions.
400.53 Yield certification and acceptability.
400.54 Submission and accuracy of production reports.
400.55 Qualifications for actual production history coverage program.
400.56 Administrative appeal exhaustion.
400.57 [Reserved]
Subpart H_Information Collection Requirements Under the Paperwork
Reduction Act; OMB Control Numbers
400.65-400.66 [Reserved]
Subpart I [Reserved]
Subpart J_Appeal Procedure
400.90 Definitions.
400.91 Applicability.
400.92 Appeals.
400.93 Administrative review.
400.94 Mediation.
400.95 Time limitations for filing and responding to requests for
administrative review.
400.96 Judicial review.
400.97 Reservations of authority.
400.98 Reconsideration process.
Subpart K_Debt Management_Regulations for the 1986 and Succeeding Crop
Years
400.115 Purpose.
400.116 Definitions.
400.117 Determination of delinquency.
400.118 Demand for payment.
400.119 Notice to debtor; credit reporting agency.
400.120 Subsequent disclosure and verification.
400.121 Information disclosure limitations.
400.122 Attempts to locate debtor.
400.123 Request for review of the indebtedness.
400.124 Disclosure to credit reporting agencies.
400.125 Notice to debtor, collection agency.
400.126 Referral of delinquent debts to contract collection agencies.
400.127 [Reserved]
400.128 Definitions.
400.129 Salary offset.
400.130 Notice requirements before offset.
400.131 Request for a hearing and result if an employee fails to meet
deadlines.
400.132 Hearings.
400.133 Written decision following a hearing.
400.134 Review of FCIC record related to the debt.
400.135 Written agreement to repay debt as an alternative to salary
offset.
400.136 Procedures for salary offset; when deductions may begin.
400.137 Procedures for salary offset; types of collection.
400.138 Procedures for salary offset; methods of collection.
400.139 Nonwaiver of rights.
400.140 Refunds.
400.141 Internal Revenue Service (IRS) Tax Refund Offset.
400.142 Past-due legally enforceable debt eligible for refund offset.
Subpart L_Reinsurance Agreement_Standards for Approval; Regulations for
the 1997 and Subsequent Reinsurance Years
400.161 Definitions.
400.162 Qualification ratios.
400.163 Applicability.
400.164 Availability of the Standard Reinsurance Agreement.
400.165 Eligibility for Standard Reinsurance Agreements.
400.166 Obligations of the Corporation.
400.167 Limitations on Corporation's obligations.
400.168 Obligations of participating insurance company.
400.169 Disputes.
400.170 General qualifications.
400.171 Qualifying when a state does not require that an Annual
Statutory Financial Statement be filed.
400.172 Qualifying with less than two of the required ratios or ten of
the analytical ratios meeting the specified requirements.
400.173 [Reserved]
[[Page 8]]
400.174 Notification of deviation from financial standards.
400.175 Revocation and non-acceptance.
400.176 State action preemptions.
400.177 [Reserved]
Subpart M_Agency Sales and Service Contract_Standards for Approval
400.201 Applicability of standards.
400.202 Definitions.
400.203 Financial statement and certification.
400.204 Notification of deviation from standards.
400.205 Denial or termination of contract and administrative
reassignment of business.
400.206 Financial qualifications for acceptability.
400.207 Representative licensing and certification.
400.208 Term of the contract.
400.209 Electronic transmission and receiving system.
400.210 [Reserved]
Subpart N [Reserved]
Subpart O_Non-Standard Underwriting Classification System Regulations
for the 1991 and Succeeding Crop Years
400.301 Basic, purpose, and applicability.
400.302 Definitions.
400.303 Initial selection criteria.
400.304 Nonstandard Classification determinations.
400.305 Assignment of Nonstandard Classifications.
400.306 Spouses and minor children.
400.307 Discontinuance of participation.
400.308 Notice of Nonstandard Classification.
400.309 Requests for reconsideration.
Subpart P_Preemption of State Laws and Regulations
400.351 Basis and applicability.
400.352 State and local laws and regulations preempted.
Subpart Q_General Administrative Regulations; Collection and Storage of
Social Security Account Numbers and Employer Identification Numbers
400.401 Basis and purpose and applicability.
400.402 Definitions.
400.403 Required system of records.
400.404 Policyholder responsibilities.
400.405 Agent and loss adjuster responsibilities.
400.406 Insurance provider responsibilities.
400.407 Restricted access.
400.408 Safeguards and storage.
400.409 Unauthorized disclosure.
400.410 Penalties.
400.411 Obtaining personal records.
400.412 Record retention.
400.413 [Reserved]
Subpart R_Administrative Remedies for Non-Compliance
400.451 General.
400.452 Definitions.
400.453 Exhaustion of administrative remedies.
400.454 Disqualification and civil fines.
400.455 Governmentwide debarment and suspension (procurement).
400.456 Governmentwide debarment and suspension (nonprocurement).
400.457 Program Fraud Civil Remedies Act.
400.458 Scheme or device.
400.459-400.500 [Reserved]
Subpart S [Reserved]
Subpart T_Federal Crop Insurance Reform, Insurance Implementation
400.650 Purpose.
400.651 Definitions.
400.652 Insurance availability.
400.653 Determining crops of economic significance.
400.654 Application and acreage report.
400.655 Eligibility for other program benefits.
400.656-400.657 [Reserved]
Subpart U_Ineligibility for Programs Under the Federal Crop Insurance
Act
400.675 Purpose.
400.676 [Reserved]
400.677 Definitions.
400.678 Applicability.
400.679 Criteria for ineligibility.
400.680 Determination and notification of ineligibility.
400.681 Effect of ineligibility.
400.682 Criteria for reinstatement of eligibility.
400.683 Administration and maintenance.
Subpart V_Submission of Policies, Provisions of Policies and Rates of
Premium
400.700 Basis, purpose, and applicability.
400.701 Definitions.
400.702 Confidentiality of submission and duration of confidentiality.
400.703 Timing of submission.
400.704 Type of submission.
400.705 Contents required for a new submission or changes to a
previously approved submission.
400.706 Review of submission.
400.707 Presentation to the Board for approval or disapproval.
[[Page 9]]
400.708 Approved submission.
400.709 Roles and responsibilities.
400.710 Preemption and premium taxation.
400.711 Right of review, modification, and the withdrawal of
reinsurance.
400.712 Research and development reimbursement, maintenance
reimbursement, and user fees.
400.713 Non-reinsured supplemental (NRS) policy.
Subpart W [Reserved]
Subpart X_Interpretations of Statutory and Regulatory Provisions
400.765 Basis and applicability.
400.766 Definitions.
400.767 Requester obligations.
400.768 FCIC obligations.
Subparts A-B [Reserved]
Subpart C_General Administrative Regulations; Mutual Consent
Cancellation
Authority: 7 U.S.C. 1506(l), 1506(o).
Source: 57 FR 56438, Nov. 30, 1992, unless otherwise noted.
Sec. 400.27 Applicability.
Notwithstanding any provisions of the crop insurance policy to the
contrary, the mutual consent provision contained herein shall be
applicable to all new crop insurance policies issued by the Federal Crop
Insurance Corporation (7 CFR part 401 et seq.), or by a company
reinsured by the Federal Crop Insurance Corporation, effective for the
applicable crop year only if those policies meet the requirements of
Sec. 400.28 of this subpart and if the crop insured is the same as the
crop for which a disaster payment application (CCC 441) was filed for
the previous crop year.
[58 FR 67304, Dec. 21, 1993]
Sec. 400.28 Mutual consent criteria.
(a) An insured may request policy cancellation for the crop year for
which the insured filed a CCC 441 for the applicable crop year if
written documentation is provided, signed by an authorized Agricultural
Stabilization and Conservation Service official, certifying the
cancellation is based on one of the following conditions:
(1) Insurance was not a condition of eligibility for disaster
payment, based on one or more of the statutory criteria; or
(2) the producer withdrew his application for disaster payments with
prejudice or it was rejected by Commodity Credit Corporation;
(b) Cancellation requests must be received in writing no later than
three weeks after the date:
(1) The disaster payment check is issued; or
(2) The producer is notified that an application for disaster
payment has been rejected; or
(3) The producer withdraws from the disaster payment program.
(c) Carryover policies are not available for mutual consent
cancellation. Crop insurance applications dated before the disaster
cancellation date (available in the insureds' service office) are not
eligible for mutual consent cancellations.
[57 FR 56438, Nov. 30, 1992, as amended at 58 FR 67304, Dec. 21, 1993]
Sec. Sec. 400.29-400.36 [Reserved]
Subparts D-E [Reserved]
Subpart F_Food Security Act of 1985, Implementation; Denial of Benefits
Authority: Secs. 1506, 1516, Pub. L. 75-430, 52 Stat. 73, 77, as
amended (7 U.S.C. 1501 et seq.); sec. 1244, Pub. L. 99-198.
Source: 52 FR 19128, May 21, 1987, unless otherwise noted.
Sec. 400.45 Applicability.
(a) The regulations in this subpart implement Chapter XII and
section 1764 of the Food Security Act of 1985 (Pub. L. 99-198) (the Act)
requiring the denial of crop insurance to persons who are determined to
have performed certain practices prohibited by the Act or who have
violated certain federal or State statutes or the regulations
implementing the Act. The provisions of this subpart are applicable to
all crop insurance policies written by the Federal Crop Insurance
Corporation (the Corporation) or reinsured by the Corporation.
[[Page 10]]
(b) The provisions of this subpart will be effective for the crop
and crop year immediately following the first crop cancellation date
occurring after the effective date of the Act for all crop policies
reinsured by FCIC, and for all policies and regulations for crop
insurance issued by FCIC.
Sec. 400.46 Definitions.
For the purpose of this regulation and in addition to the
definitions included at 7 CFR 12.2, the following definitions are
applicable:
(a) Controlled substance means any prohibited drug-producing plants
including, but not limited to, cacti of the genus lophophora, coca
bushes (erythroxylum coca), marijuana (cannabis satiua), opium poppies
(papauer somniferum), and other drug-producing plants, the planting and
harvesting of which is prohibited by Federal or State law.
(b) Person means any producer, tenant, or landlord, insured under a
policy of crop insurance issued by FCIC, or by a multi-peril insurance
company whose crop insurance policy is reinsured by FCIC.
(c) State means each of the fifty States, the District of Columbia,
the Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United
States, American Samoa, the Commonwealth of the Northern Mariana
Islands, or the Trust Territory of the Pacific.
(d) The Act means the Food Security Act of 1985 (Pub. L. 99-198).
Sec. 400.47 Denial of crop insurance.
(a) Any person convicted under Federal or State law of planting,
cultivating, growing, producing, harvesting or storing a controlled
substance in any crop year will be ineligible for crop insurance during
that crop year and the four succeeding crop years.
(1) The insurance of such person insured by FCIC who found to be
ineligible under paragraph (a) of this section will be null and void,
and any indemnity paid on such insurance must be returned in full to
FCIC. Any premium paid for insurance coverage declared null and void
will be returned, less a reasonable amount for expenses and handling not
to exceed 20 percent of the premium paid.
(2) The application and policy of insurance will be voided, or the
person will be removed from the policy and the policyholder share
reduced in accordance with 7 CFR 400.681(b), when any person becomes
ineligible for crop insurance under the provisions of paragraph (a) of
this section. To obtain crop insurance coverage following the period of
ineligibility, the person must submit a new application for crop
insurance.
(b) Any insurance written by a multi-peril crop insurance company to
any person who is ineligible under the provisions of this subpart is not
eligible for reinsurance under the Corporation's standard reinsurance
agreement. Any premium subsidy and expense allowance or loss paid by the
Corporation because of such agreement will be immediately refunded to
the Corporation. Notwithstanding any other provision of law, policies
written by multi-peril crop insurance companies to any person ineligible
under the provisions of this subpart are null and void. Premium paid for
such policies will be refunded to the person applying for insurance,
less a reasonable amount for expenses and handling not to exceed 20
percent of the premium paid, and no indemnity will be paid unless the
multi-peril company expressly agrees to continue such policy in effect
without FCIC reinsurance. However, if the reinsured company follows the
procedure of the Corporation and the requirements of the regulations,
reinsurance will continue to be provided under the reinsurance agreement
on the policy unless it is shown that the agent or company had knowledge
of facts which would indicate ineligibility on the part of the insured
and failed to act on that knowledge.
(c) FCIC employees or contractors are required to report all
suspected cases of violation of the Act or the regulations to the
appropriate agency for a determination of violation. Benefits shall not
be paid in such cases pending a determination from the appropriate
agency.
(d) Notwithstanding any other provision of this subpart, any crop
insurance policy where insurance attached to a crop prior to August 15,
1986, will continue in effect for that crop until the
[[Page 11]]
next termination date following August 15, 1986.
[52 FR 19128, May 21, 1987, as amended at 58 FR 17945, Apr. 7, 1993; 61
FR 38058, July 23, 1996; 65 FR 29942, May 10, 2000]
Sec. 400.48 Protection of interests of tenants, landlords or producers.
Any tenant, landlord or producer on the farm separate from the
person declared ineligible for crop insurance under the provisions of
Sec. 400.47 of this part, will remain eligible for crop insurance on
their insurable share in the crop, unless such tenant, landlord, or
producer on the farm is:
(a) Also convicted of planting, cultivating, growing, producing, or
storing a controlled substance;
(b) Otherwise determined by FCIC to be ineligible for crop
insurance.
[52 FR 19128, May 21, 1987, as amended at 61 FR 38058, July 23, 1996]
Sec. Sec. 400.49-400.50 [Reserved]
Subpart G_Actual Production History
Authority: 7 U.S.C. 1506, 1516.
Source: 59 FR 47787, Sept. 19, 1994, unless otherwise noted.
Sec. 400.51 Availability of actual production history program.
An Actual Production History (APH) Coverage Program is offered under
the provisions contained in the following regulations:
7 CFR part 457--Common Crop Insurance Regulations; and all special
provisions thereto unless specifically excluded by the special
provisions.
The APH program operates within limits prescribed by, and in
accordance with, the provisions of the Federal Crop Insurance Act, as
amended (7 U.S.C. 1501 et seq.), only on those crops identified in this
section in those areas where the Actuarial Table provides coverage.
Except when in conflict with this subpart, all provisions of the
applicable crop insurance contract for these crops apply.
[59 FR 47787, Sept. 19, 1994, as amended at 69 FR 9520, Mar. 1, 2004]
Sec. 400.52 Definitions.
In addition to the definitions contained in the crop insurance
contract, the following definitions apply for the purposes of the APH
Coverage Program:
(a) APH. Actual Production History.
(b) Actual yield. The yield per acre for a crop year calculated from
the production records or claims for indemnities. The actual yield is
determined by dividing total production (which includes harvested and
appraised production) by planted acres for annual crops or by insurable
acres for perennial crops.
(c) Adjusted yield. The transitional or determined yield reduced by
the applicable percentage for lack of records. The adjusted yield will
equal 65 percent of the transitional or determined yield, if no producer
records are submitted; 80 percent, if records for one year are
submitted; and 90 percent, if two years of records are submitted.
(d) Appraised production. Production determined by the Agricultural
Stabilization and Conservation Service (ASCS), the FCIC, or a company
reinsured by the FCIC, that was unharvested but which reflected the
crop's yield potential at the time of the appraisal. For the purpose of
APH ``appraised production'' specifically excludes production lost due
to uninsurable causes.
(e) Approved APH yield. A yield, calculated and approved by the
verifier, used to determine the production guarantee and determined by
the sum of the yearly actual, assigned, and adjusted or unadjusted
transitional or determined yields divided by the number of yields
contained in the database. The database may contain up to 10 consecutive
crop years of actual and or assigned yields. At least four yields will
always exist in the database.
(f) Assigned yield. A yield assigned by FCIC in accordance with the
crop insurance contract, if the insured does not file production reports
as required by the crop insurance contract. Assigned yields are used in
the same manner as actual yields when calculating APH yields except for
purposes of the Nonstandard Classification System (NCS).
(g) Base period. Ten consecutive crop years (except peaches, which
have a
[[Page 12]]
five-year base period) immediately preceding the crop year defined in
the insurance contract for which the approved APH yield is being
established (except for sugarcane, which begins the calendar year
preceding the immediate previous crop year defined in the insurance
contract).
(h) Continuous production reports. Reports submitted by a producer
for each crop year that the unit was planted to the crop and for the
most recent crop year in the base period.
(i) Crop year. Defined in the crop insurance contract, however, for
APH purposes the term does not include any year when the crop was not
planted or when the crop was prevented from being planted by an
insurable cause. For example, if an insured plants acreage in a county
to wheat one year, that year is a crop year in accordance with the
policy definition. If the land is summerfallowed the next calendar year,
that calendar year is not a crop year for the purpose of APH.
(j) Database. A minimum of four years up to a maximum of ten crop
years of production data used to calculate the approved APH yield.
(k) Determined yield (D-yield). An estimated year for certain crops,
which can be determined by multiplying an average yield for the crop
(attained by using data available from The National Agricultural
Statistics Service (NASS) or comparable sources) by a percentage
established by the FCIC for each county.
(l) Master yields. Approved APH yields, for certain crops and
counties as initially designated by the FCIC, based on a minimum of four
crop years of production records for a crop within a county.
(m) New producer. A person who has not been actively engaged in
farming for a share of the production of the insured crop for more than
two crop years.
(n) Production report. A written record showing the insured crop's
annual production and used to determine the insured's yield for
insurance purposes. The report contains yield history by unit, if
applicable, including planted acreage for annual crops, insurable
acreage for perennial crops, and harvested and appraised production for
the previous crop years. This report must be supported by written
verifiable records, measurement of farm stored production, or by other
records of production approved by FCIC on an individual basis.
Information contained in a claim for indemnity is considered a
production report for the crop year for which the claim was filed.
(o) Production Reporting Date (PRD). The PRD is contained in the
crop insurance contract and is the last date production reports will be
accepted for inclusion in the database for the current crop year.
(p) Transitional yield (T-Yield). An estimated yield, for certain
crops, generally determined by multiplying the ASCS program yield by a
percentage determined by the FCIC for each county and provided on the
actuarial table to be used in the APH yield calculation process when
less than four consecutive crop years of actual or assigned yields are
available.
(q) Verifiable records. Contemporaneous records of acreage and
production provided by the insured, which may be verified by FCIC
through an independent source, and which are used to substantiate the
acreage and production that have been reported on the production report.
(r) Verifier. A person authorized by the FCIC to calculate approved
APH yields.
(s) Yield variance tables. Tables for certain crops that indicate
unacceptable yield variations and yield trends which will require
determination of the APH yield by the FCIC.
Sec. 400.53 Yield certification and acceptability.
(a) Production reports must be provided to the crop insurance agent
no later than the production reporting date for the crop insured.
(1) Production reports must provide an accurate account of planted
acreage for annual crops or insurable acres for perennial crops, as well
as harvested and appraised production by unit.
(2) The insured must certify the accuracy of the information.
(3) Production reported for more than one crop year must be
continuous. A year in which no acreage was planted to the crop on a unit
or no acreage was
[[Page 13]]
planted to a practice, type, or variety requiring an APH yield will not
be considered a break in continuity. Assigned yields, at the discretion
of the FCIC, may be used to maintain continuity of yield data of file.
Production on uninsured (for those years a crop insurance policy under
the Federal Crop Insurance Act is in effect) or uninsurable acreage (for
other years of the period) will not be used to determine APH yield
unless production from such acreage is commingled with production from
insured or insurable acreage.
(b) Production reports and supporting records are subject to audit
or review to verify the accuracy of the information certified.
Production and supporting records may be reviewed and verified if a
claim for indemnity is submitted on the insured crop. The reported yield
is subject to revision, if needed, so that the claim conforms to the
records submitted at that time.
(1) Inaccurate production reports or failure to retain acceptable
records shall result in the verifier combining optional farm units and
recomputing the approved APH yield. These actions shall be taken at any
time after reporting or record discrepancies are identified and may
result in reduction of the approved APH yield for any calendar year.
(2) Records must be provided by the insured at the time of an audit,
review, or as otherwise requested, to verify that the acreage and
production certified are accurate. Records of any other person having
shares in the insured crop, which are used by the insured to establish
the approved APH yield, must also be provided upon request.
(3) In the event acreage or production data certified by two or more
persons sharing in the crop on the same acreage is different, the
verifier shall, at the verifier's discretion, determine which acreage
and production data, if any, will be used to determine the approved APH
yield. If the correct acreage and production cannot be determined, the
data submitted will be considered unacceptable by the verifier for APH
purposes.
(4) Failure of the producer to report acreage and production
completely and accurately may result in voidance of the crop insurance
contract, as well as criminal or civil false claims penalties pursuant
to applicable Federal criminal or civil statutes.
Sec. 400.54 Submission and accuracy of production reports.
(a) The insured is solely responsible for the timely submission and
certification of accurate, complete production reports to the agent.
Production reports must be provided for all planted units.
(b) Records may be requested by the FCIC, or an insurance company
reinsured by the FCIC, or by anyone acting on behalf of the FCIC or the
insurance company. The insured must provide such records upon request.
(c) The agent will explain the APH Program to insureds and
prospective insureds. When necessary, the agent will assist the insured
in preparation of production reports. The agent will determine the
adjusted or unadjusted transitional or determined yields in accordance
with Sec. 400.54(b). The agent will review the production reports and
forward them to the verifier, along with any requested and required
supporting records for determination of an approved APH yield.
(d) The verifier will determine if the certified production reports
are acceptable and calculate the approved APH yield.
Sec. 400.55 Qualification for actual production history coverage
program.
(a) The approved APH yield is calculated from a database containing
a minimum of four yields and will be updated each subsequent crop year.
The database may contain a maximum of the 10 most recent crop years and
may include actual, assigned, and adjusted or unadjusted T or D-Yields.
T or D-Yields, adjusted or unadjusted, will only occur in the database
when there are less than four years of actual and/or assigned yields.
(b) The insured may be required to provide production records to
determine the approved APH yield, if production records for the most
recent crop year are available. If acceptable records of actual
production are provided, the records must be continuous
[[Page 14]]
and contain at least the most recent crop year's actual yield.
(1) If no acceptable production records are available, the approved
APH yield is the adjusted T or D-Yield (65 percent of T or D-Yield).
(2) If acceptable production records containing information for only
the most recent crop year are provided, the three T or D-Yields adjusted
by 80 percent will be used to complete the minimum database and
calculate the approved APH yield.
(3) If acceptable production records containing information for only
the two most recent crop years are provided, the two T or D-Yields
adjusted by 90 percent and the two actual yields will be used to
complete the database and calculate the approved APH yield.
(4) If acceptable production records containing information for only
the three most recent crop years are provided, the three actual yields
and one unadjusted T or D-Yield are used to complete the database and
calculate the approved APH yield.
(5) When the database contains four or more (up to ten) continuous
actual yields, the approved APH yield is a simple average of the actual
yields.
(6) New producers may have their approved APH yields based on
unadjusted T or D-Yields or a combination of actual and unadjusted T or
D-Yields.
(7) Producers who add land or new practice, types and varieties to
their farming operations and who do not have available records for the
added land, practice, types or varieties may have approved APH yields
for the added land, practice, types or varieties that are based on
adjusted or unadjusted T or D-Yields as determined by FCIC.
(8) If the producer's crop is destroyed or if it produces a low
actual yield due to insured causes of loss, the resulting average yield
may qualify for catastrophic yield adjustment according to FCIC
guidelines. APH yields qualifying for catastrophic yield adjustment may
be adjusted to mitigate the effect of catastrophic years. Premium rates
for approved APH yields, which are adjusted for catastrophic years, may
be based on the producer's APH average yield prior to the catastrophic
adjustment or such other basis as determined appropriate by FCIC.
(c) If no insurable acreage of the insured crop is planted for a
year, a production report indicating zero planted acreage will maintain
the continuity of production reports for APH record purposes and that
calendar year will not be included in the APH yield calculations.
(d) Actual yields calculated from the claim for indemnity will be
entered in the database. The resulting average yield will be used to
determine the premium rate and approved APH yield, at the discretion of
FCIC.
(e) Optional units are not available to an insured who does not
provide acceptable production reports for at least the most recent crop
year with which to calculate an approved APH yield.
(f) FCIC may determine approved APH yields for designated crops in
the following situations:
(1) If less than four years of yield history is certified and T or
D-Yields are not provided in the actuarial documents,
(2) If actual yield exceed tolerances specified in yield variance
tables, and
(3) For perennial crops:
(i) If significant upward or downward yield trends are indicated;
(ii) If tree or vine damage, or cultural practices will reduce the
production level;
(iii) If more than two percent of the trees or vines have been
removed within the last two years; or
(iv) If yield trends are evident and yields greater than the average
yield are requested by the insured.
(g) APH yields will not be approved the first insurance year on
perennial crops until an inspection acceptable to FCIC has been
performed and the acreage is accepted for insurance purposes in
accordance with the crop insurance contract.
(h) APH Master Yields may be established whenever crop rotation
requirements and land leasing practices limit the yield history
available. FCIC will establish crops and locations for which Master
Yields are available. To qualify, the producer must have at least four
recent continuous crop years' annual production reports and must certify
[[Page 15]]
the authenticity of the production reports of the insured crop. Master
Yields are based on acreage and production history from all acreage of
the insured crop in the county in which the operator has shared in the
crop's production.
(i) FCIC may use any production report available under the
provisions of any crop insurance contract, whether continuous or not,
involving the interests of the person's insured crops in determining the
approved APH yield.
Sec. 400.56 Administrative appeal exhaustion.
The insured may appeal the approved APH yield in accordance with the
procedures contained in 7 CFR part 400, subpart J. Administrative
remedies through the appeal process must be exhausted prior to any
action for judicial review. The approved APH yield determined as a
result of the appeal process will be the yield applicable to the crop
year.
Sec. 400.57 [Reserved]
Subpart H_Information Collection Requirements Under the Paperwork
Reduction Act; OMB Control Numbers
Authority: 5 U.S.C. 1320, Pub. L. 96-511 (44 U.S.C., chapter 35).
Source: 56 FR 49390, Sept. 30, 1991, unless otherwise noted.
Sec. Sec. 400.65-400.66 [Reserved]
Subpart I [Reserved]
Subpart J_Appeal Procedure
Authority: 7 U.S.C. 1506(l), 1506(p)
Source: 67 FR 13251, Mar. 22, 2002, unless otherwise noted.
Sec. 400.90 Definitions.
Act. The Federal Crop Insurance Act (7 U.S.C. 1501-1524).
Administrative review. A review within the Department of Agriculture
of an adverse decision.
Adverse decision. A decision by an employee or Director of the
Agency that is adverse to the participant. The term includes the denial
of program benefits, written agreements, eligibility, etc. that results
in the participant receiving less funds than the participant believes
should have been paid or not receiving a benefit to which the
participant believes he or she was entitled.
Agency. RMA or FCIC, including the RO, FAOB or any other division
within the Agency with decision making authority.
Appellant. Any participant who requests an administrative review or
mediation, or both, of an adverse decision of the Agency in accordance
with this subpart. Unless otherwise specified in this subpart, the term
``appellant'' includes an authorized representative.
Authorized representative. Any person, whether or not an attorney,
who has obtained a Privacy Act waiver and is authorized in writing by a
participant to act for the participant in the administrative review,
mediation, or appeal process.
Certified State. A State with a mediation program, approved by the
Secretary, that meets the requirements of 7 CFR part 1946, subpart A, or
a successor regulation.
FAOB. Financial and Accounting Operations Branch.
FCIC. The Federal Crop Insurance Corporation, a wholly owned
Government corporation within USDA.
FSA. The Farm Service Agency, an agency within USDA, or its
successor agency.
Good farming practices. For agricultural commodities insured under
the terms contained in 7 CFR part 457 and all other crop insurance
policies authorized under the Act, except as provided herein, means the
good farming practices as defined at 7 CFR 457.8. For agricultural
commodities insured under the terms contained in 7 CFR part 407, means
the good farming practices as defined at 7 CFR 407.9.
Insured. An individual or entity that has applied for crop insurance
or who holds a crop insurance policy that was in effect for the previous
crop year and continues to be in effect for the current crop year.
Mediation. A process in which a trained, impartial, neutral third
party (the mediator), meets with the disputing parties, facilitates
discussions,
[[Page 16]]
and works with the parties to mutually resolve their disputes, narrow
areas of disagreement, and improve communication.
NAD. The USDA National Appeals Division. See 7 CFR part 11.
Non-certified State. A State that is not approved by the Secretary
of Agriculture to participate in the USDA Mediation Program under 7 CFR
part 1946, subpart A, or its successor regulation.
Participant. An individual or entity that has applied for crop
insurance or who holds a valid crop insurance policy that was in effect
for the previous crop year and continues to be in effect for the current
crop year. The term does not include individuals or entities whose
claims arise under the programs excluded in the definition of
participant published at 7 CFR 11.1.
Reinsured company. A private insurance company, including its
agents, that has been approved and reinsured by FCIC to provide
insurance to participants.
Reviewing authority. A person assigned the responsibility by the
Agency of making a decision on a request for administrative review by
the participant in accordance with this subpart.
RMA. The Risk Management Agency, an agency within USDA, or its
successor agency.
RO. The Regional Office established by the agency for the purpose of
providing program and underwriting services for private insurance
companies reinsured by FCIC under the Act and for FCIC insurance
contracts delivered through FSA offices.
Secretary. The Secretary of Agriculture.
USDA. United States Department of Agriculture.
[67 FR 13251, Mar. 22, 2002, as amended at 68 FR 37720, June 25, 2003;
74 FR 8704, Feb. 26, 2009]
Sec. 400.91 Applicability.
(a) This subpart applies to:
(1) Adverse decisions made by personnel of the Agency with respect
to:
(i) Contracts of insurance insured by FCIC; and
(ii) Contracts of insurance of private insurance companies and
reinsured by FCIC under the provisions of the Act.
(2) Determinations of good farming practices made by personnel of
the Agency or the reinsured company (see Sec. 400.98).
(b) This subpart is not applicable to any decision:
(1) Made by the Agency with respect to any matter arising under the
terms of the Standard Reinsurance Agreement with the reinsured company;
or
(2) Made by any private insurance company with respect to any
contract of insurance issued to any producer by the private insurance
company and reinsured by FCIC under the provisions of the Act, except
for determinations of good farming practices specified in
Sec. 400.91(a)(2).
(c) With respect to matters identified in Sec. 400.91(a)(1),
participants may request an administrative review, mediation, or both,
or appeal of adverse decisions by the Agency made with respect to:
(1) Denial of participation in the crop insurance program;
(2) Compliance with terms and conditions of insurance;
(3) Issuance of payments or other program benefits to a participant
in the crop insurance program; and
(4) Issuance of payments or other benefits to an individual or
entity who is not a participant in the crop insurance program.
(d) Only a participant may seek an administrative review and
mediation under this subpart, as applicable.
(e) Notwithstanding any other provision, this subpart does not apply
to any decision made by the Agency that is generally applicable to all
similarly situated program participants. Such decisions are also not
appealable to NAD. If the Agency determines that a decision is not
appealable because it is a matter of general applicability, the
participant must obtain a review by the Director of NAD in accordance
with 7 CFR 11.6(a) of the Agency's determination that the decision is
not appealable before the participant may file suit against the Agency.
[67 FR 13251, Mar. 22, 2002, as amended at 68 FR 37720, June 25, 2003;
74 FR 8704, Feb. 26, 2009]
[[Page 17]]
Sec. 400.92 Appeals.
(a) Except for determinations of good farming practices, nothing in
this subpart prohibits a participant from filing an appeal of an adverse
decision directly with NAD in accordance with part 11 of this title
without first requesting administrative review or mediation under this
subpart.
(b) If the participant has timely requested administrative review or
mediation, the participant may not participate in a NAD hearing until
such administrative review or mediation is concluded. The time for
appeal to NAD is suspended from the date of receipt of a request for
administrative review or mediation until the conclusion of the
administrative review or mediation. The participant will have only the
remaining time to appeal to NAD after the conclusion of the
administrative review or mediation.
[67 FR 13251, Mar. 22, 2002, as amended at 68 FR 37720, June 25, 2003]
Sec. 400.93 Administrative review.
(a) With respect to adverse decisions, an appellant may seek one
administrative review or seek mediation under Sec. 400.94.
(b) If the appellant seeks an administrative review, the appellant
must file a written request for administrative review with the reviewing
authority in accordance with Sec. 400.95. The written request must state
the basis upon which the appellant relies to show that:
(1) The decision was not proper and not made in accordance with
applicable program regulations and procedures; or
(2) All material facts were not properly considered in such
decision.
(c) The reviewing authority will issue a written decision that will
not be subject to further administrative review by the Agency.
[67 FR 13251, Mar. 22, 2002, as amended at 68 FR 37720, June 25, 2003;
74 FR 8704, Feb. 26, 2009]
Sec. 400.94 Mediation.
For adverse decisions only:
(a) Appellants have the right to seek mediation or other forms of
alternative dispute resolution in addition to an administrative review
under Sec. 400.93.
(b) All requests for mediation under this subpart must be made after
issuance of the adverse decision by the Agency and before the appellant
has a NAD hearing on the adverse decision.
(c) An appellant who chooses mediation must request mediation not
later than 30 calendar days from receipt of the written notice of the
adverse decision. A request for mediation will be considered to have
been ``filed'' when personally delivered in writing to the appropriate
decision maker or when the properly addressed request, postage paid, is
postmarked.
(d) An appellant will have any balance of the days remaining in the
30-day period to appeal to NAD if mediation is concluded without
resolution. If a new adverse decision that raises new matters or relies
on different grounds is issued as a result of mediation, the participant
will have a new 30-day period for appeals to NAD.
(e) An appellant is responsible for contacting the Certified State
Mediation Program in States where such mediation program exists. The
State mediation program will make all arrangements for the mediation
process. A list of Certified State Mediation Programs is available at
http://www.act.fcic.usda.gov.
(f) An appellant is responsible for making all necessary contacts to
arrange for mediation in non-certified States or in certified States
that are not currently offering mediation on the subject in dispute. An
appellant needing mediation in States without a certified mediation
program may request mediation by contacting the RSO, which will provide
the participant with a list of acceptable mediators.
(g) An appellant may only mediate an adverse decision once.
(h) If the dispute is not completely resolved in mediation, the
adverse decision that was the subject of the mediation remains in effect
and becomes the adverse decision that is appealable to NAD.
(i) If the adverse decision is modified as a result of the mediation
process, the modified decision becomes the new adverse decision for
appeal to NAD.
[67 FR 13251, Mar. 22, 2002, as amended at 74 FR 8704, Feb. 26, 2009]
[[Page 18]]
Sec. 400.95 Time limitations for filing and responding to requests for
administrative review.
(a) A request for administrative review must be filed within 30 days
of receipt of written notice of the adverse decision. A request for an
administrative review will be considered to have been ``filed'' when
personally delivered in writing to the appropriate decision maker or
when the properly addressed request, postage paid, is postmarked.
(b) Notwithstanding paragraph (a) of this section, an untimely
request for administrative review may be accepted and acted upon if the
participant can demonstrate a physical inability to timely file the
request for administrative review.
[67 FR 13251, Mar. 22, 2002, as amended at 68 FR 37720, June 25, 2003]
Sec. 400.96 Judicial review.
Except as provided in Sec. 400.98, with respect to adverse
determinations:
(a) A participant must exhaust administrative remedies before
seeking judicial review of an adverse decision. This requires the
participant to appeal an Agency adverse decision to NAD in accordance
with 7 CFR part 11 prior to seeking judicial review of the adverse
decision.
(b) If the adverse decision involves a matter determined by the
Agency to be not appealable, the appellant must request a determination
of non-appealability from the Director of NAD, and appeal the adverse
decision to NAD if the Director determines that it is appealable, prior
to seeking judicial review.
(c) A participant with a contract of insurance reinsured by the
Agency may bring suit against the Agency if the suit involves an adverse
action in a United States district court after exhaustion of
administrative remedies as provided in this section. Nothing in this
section can be construed to create privity of contract between the
Agency and a participant.
[67 FR 13251, Mar. 22, 2002, as amended at 68 FR 37720, June 25, 2003]
Sec. 400.97 Reservations of authority.
(a) Representatives of the Agency may correct all errors in entering
data on program contracts and other program documents, and the results
of computations or calculations made pursuant to the contract.
(b) Nothing contained in this subpart precludes the Secretary, the
Manager of FCIC, or the Administrator of RMA, or a designee, from
determining at any time any question arising under the programs within
their respective authority or from reversing or modifying any adverse
decision.
Sec. 400.98 Reconsideration process.
(a) This reconsideration process only applies to determinations of
good farming practices under Sec. 400.91(a)(2).
(b) There is no appeal to NAD of determinations or reconsideration
decisions regarding good farming practices.
(c) Only reconsideration is available for determinations of good
farming practices. Mediation is not available for determinations of good
farming practices.
(d) If the insured seeks reconsideration, the insured must file a
written request for reconsideration to the following: USDA/RMA/Deputy
Administrator for Insurance Services/Stop 0805, 1400 Independence Avenue
SW., Washington, DC 20250-0801.
(1) A request for reconsideration must be filed within 30 days of
receipt of written notice of the determination regarding good farming
practices. A request for reconsideration will be considered to have been
``filed'' when personally delivered in writing to FCIC or when the
properly addressed request, postage paid, is postmarked.
(2) Notwithstanding paragraph (d)(1) of this section, an untimely
request for reconsideration may be accepted and acted upon if the
insured can demonstrate a physical inability to timely file the request
for reconsideration.
(3) The written request must state the basis upon which the insured
relies to show that:
(i) The decision was not proper and not made in accordance with
applicable program regulations and procedures; or
(ii) All material facts were not properly considered in such
decision.
(e) With respect to determinations of good farming practices, the
insured is
[[Page 19]]
not required to exhaust the administrative remedies in 7 CFR part 11
before bringing suit against FCIC in a United States district court.
However, regardless of whether the Agency or the reinsured company makes
the determination, the insured must seek reconsideration under
Sec. 400.98 before bringing suit against FCIC in a United States
District Court. The insured cannot file suit against the reinsured
company for determinations of good farming practices.
(f) Any reconsideration decision by the Agency regarding good
farming practices shall not be reversed or modified as a result of
judicial review unless the reconsideration decision is found to be
arbitrary or capricious.
[68 FR 37720, June 25, 2003]
Subpart K_Debt Management_Regulations for the 1986 and Succeeding Crop
Years
Authority: Secs. 506, 516, Pub. L. 75-430, 52 Stat. 73, 77, as
amended (7 U.S.C. 1506, 1516).
Source: 51 FR 17316, May 12, 1986, unless otherwise noted.
Sec. 400.115 Purpose.
This subpart sets forth procedures that will be followed, and the
rights afforded to debtors, in connection with the reporting by the
Federal Crop Insurance Corporation (FCIC) to credit reporting agencies
of information with respect to current and delinquent debts owed to
FCIC, and in connection with referral of delinquent debts to contract
collection agencies.
Sec. 400.116 Definitions.
(a) Credit reporting agency means (1) a reporting agency as defined
at 4 CFR 102.5(a), or (2) any entity which has entered into an agreement
with USDA concerning the referral of credit information.
(b) Collection agency means a private debt collection contractor
under Federal Supply Schedule contract with the General Services
Administration (GSA) for professional debt collection services.
(c) Comptroller means the employee of FCIC filling that position or
the person designated by the Comptroller to perform that function.
(d) Debt and claim are deemed synonymous and are used
interchangeably herein. The debt or claim is an amount of money which
has been determined by an appropriate agency official to be owed to FCIC
by any individual, organization or entity, except another Federal
agency; State, local or foreign government or agencies thereof; Indian
tribal governments; or other public institutions.
The debt or claim may have arisen from overpayment, premium non-payment,
interest, penalties, reclamations resulting from payments under good
faith reliance provisions, or other causes.
(e) Delinquent debt means (1) any debt owed to FCIC that has not
been paid by the termination date specified in the applicable contract
of insurance, or other due date for payment contained in any other
agreement, or notification of indebtedness, and (2) any overdue amount
owed to FCIC by a debtor which is the subject of an installment payment
agreement which the debtor has failed to satisfy under the terms of such
agreement.
(f) System of records means a group of any records under the control
of FCIC from which information is retrieved by the name of the
individual by some identifying number, symbol, or other identification
assigned to the individual.
(g) Request for review means that request submitted to FCIC by a
debtor for a review of the facts resulting in the determination of
indebtedness to FCIC. FCIC allows 45 days for such request and any
request submitted within that period is considered a timely request.
Sec. 400.117 Determination of delinquency.
Prior to disclosing information about a debt to a credit reporting
agency in accordance with this subpart, the FCIC claims official,
designated as the Comptroller, FCIC, or the designee of the Comptroller
who has jurisdiction over the claim, shall review the claim and
determine that the claim is valid and overdue.
[[Page 20]]
Sec. 400.118 Demand for payment.
The Comptroller who is responsible for carrying out the provisions
of this subpart with respect to the debt shall send to the debtor
appropriate written demands for payment in terms which inform the debtor
of the consequences of failure to make payment, in accordance with
guidelines established by the Manager, FCIC, the Federal Claims
Collection Standards at 4 CFR 102.2, or the contract between the General
Services Administration (GSA) and the collection agency.
Sec. 400.119 Notice to debtor; credit reporting agency.
(a) In accordance with guidelines established by the Manager, FCIC,
the Comptroller who is responsible for disclosure of information with
respect to delinquent debts to a credit reporting agency shall send
written notice to the delinquent debtors that FCIC intends to disclose
credit information to a credit reporting agency on a regular basis. In
addition, delinquent debtors are to be informed:
(1) Of the basis for the indebtedness;
(2) That the payment is overdue;
(3) That FCIC intends to disclose to a credit reporting agency that
the debtor is responsible for the debt and with respect to an
individual, that such disclosure shall be made not less than 60 days
after notification to such debtor;
(4) Of the specific information intended to be disclosed to the
credit reporting agency;
(5) Of the rights of such debtor to a full explanation of the claim
and to dispute any information in the system of records of FCIC
concerning the claim;
(6) Of the debtor's right to administrative appeal or review with
respect to the claim and how such review shall be obtained; and
(7) Of the date after which the information will be reported to the
credit reporting agency.
(b) The content and standards for demand letters and notices sent
under this section shall be consistent with the Federal Claims
Collection Standards at 4 CFR 102.2.
Sec. 400.120 Subsequent disclosure and verification.
(a) FCIC shall promptly notify each credit reporting agency to which
the original disclosure of debt information was made of any substantial
change in the condition or amount of the claim. A substantial change in
condition may include, but is not limited to, notice of death, cessation
of business, or relocation of the debtor. A substantial change in the
amount may include, but is not limited to, payments received, additional
amounts due, or offsets made with respect to the debt.
(b) FCIC shall promptly verify or correct, as appropriate,
information about the claim or request of such credit reporting agency
for verification of any or all information so disclosed. The records of
the debtor shall reflect any correction resulting from such request.
(c) FCIC shall obtain satisfactory assurances from each reporting
agency to which information will be provided that the agency is in
compliance with the provisions of all laws and regulations of the United
States relating to providing credit information.
Sec. 400.121 Information disclosure limitations.
FCIC shall limit delinquent debt information disclosed to credit
reporting agencies to:
(a) The name, address, taxpayer identification number, and other
information necessary to establish the identity of the debtor;
(b) The amount, status, and history of the claim; and
(c) The FCIC program under which the claim arose.
Sec. 400.122 Attempts to locate debtor.
Before disclosing delinquent debt information to a credit reporting
agency, FCIC shall take reasonable action to locate a debtor for whom
FCIC does not have a current address in order to send the notification
in accordance with Sec. 400.119 of this subpart.
Sec. 400.123 Request for review of the indebtedness.
(a) Before disclosing delinquent debt information to a credit
reporting agency, FCIC shall, upon request of the debtor, provide for a
review of the
[[Page 21]]
claim, including an opportunity for reconsideration of the initial
decision concerning the existence or amount of the claim, in accordance
with applicable administrative appeal procedures.
(b) Upon receipt of a timely request for review, FCIC shall suspend
its schedule for disclosure of delinquent debt information to a credit
reporting agency until such time as a final decision is made on the
request.
(c) Upon completion of the review, the reviewing office shall
transmit to the debtor a written notification of the decision. If
appropriate, notification shall inform the debtor of the scheduled date
on or after which information concerning the debt will be provided to
the credit reporting agency. The notification shall, if appropriate,
also indicate any changes in the information to be disclosed to the
extent such information differs from that provided in the initial
notification.
Sec. 400.124 Disclosure to credit reporting agencies.
(a) In accordance with guidelines established by the Manager, FCIC,
the Comptroller or designated manager of the systems of records shall
disclose to credit reporting agencies the information specified in
Sec. 400.121.
(b) Disclosure of information to credit reporting agencies shall be
made on or after the date specified in Sec. Sec. 400.119(a)(3) and
400.125 and shall be comprised of the information set forth in the
initial determination or any modification thereof.
(c) This section shall not apply to disclosure of delinquent debts
when:
(1) The debtor has agreed to a repayment agreement for such debt and
such agreement is still valid; or
(2) The debtor has filed for review of the debt and the reviewing
official or designee has not issued a decision on the review.
Sec. 400.125 Notice to debtor, collection agency.
FCIC shall provide 30 days written notice to the debtor, mailed to
the debtor's last known address, of FCIC's intent to forward the debt to
a collection agency for further collection action.
Sec. 400.126 Referral of delinquent debts to contract collection
agencies.
(a) FCIC shall use the services of a contract collection agency
which has entered into a contract with the General Services
Administration to recover debts owed to FCIC.
(b) If FCIC's collection efforts have been unsuccessful on a
delinquent debt, and the delinquent debt remains unpaid, FCIC may refer
the debt to a contract collection agency for collection.
(c) FCIC shall retain the authority to resolve disputes, compromise
claims, suspend or terminate collection action, and refer the matter for
litigation.
Sec. 400.127 [Reserved]
Sec. 400.128 Definitions.
(a) Agency means (1) An Executive Agency as defined by 5 U.S.C. 105,
the United States Postal Service, and the United States Postal Rate
Commission, or (2) A Military Department, as defined by section 102 of
Title 5 U.S.C.
(b) Debt means:
(1) An amount owed to the United States from sources including, but
not limited to, insured or guaranteed loans, fees, leases, insurance
premiums, interest (except where prohibited by law), rents, royalties,
services, sale of real or personal property, overpayments, penalties,
damages, fines and forfeitures (except those arising under the Uniform
Code of Military Justice).
(2) An amount owed to the United States by an employee for pecuniary
losses where the employee has been determined to be liable because of
such employee's negligent, willful, unauthorized or illegal acts,
including but not limited to:
(i) Theft, misuse, or loss of Government funds;
(ii) False claims for services and travel reimbursement;
(iii) Illegal, unauthorized obligations and expenditures of
Government appropriations;
(iv) Using or authorizing the use of Government owned or leased
equipment, facilities, supplies and services for other than official or
approved purposes;
(v) Lost, stolen, damaged, or destroyed Government property;
[[Page 22]]
(vi) Erroneous entries on accounting records or reports; and
(vii) Deliberate failure to provide physical security and control
procedures for accountable officers, if such failure is determined to be
the proximate cause for a loss of Government funds.
(c) Department or USDA means the United States Department of
Agriculture.
(d) Disposable salary (pay) means any pay due an employee which
remains after required deductions for Federal, State and local income
taxes; Social Security taxes, including Medicare taxes; Federal
retirement programs; premiums for life and health insurance benefits;
and such other deductions as may be required by law to be withheld.
(e) Employee means a current employee of an agency, including a
current member of the Armed Forces or a Reserve of the Armed Forces.
(f) FCIC Official means the Manager, or the Manager's designee.
(g) Hearing Officer means an Administrative Law Judge of the
Department of Agriculture or another person not under the control of the
USDA, designated by the FCIC Official to review the determination of the
alleged debt.
(h) Salary Offset means a deduction of a debt due the U.S. by
deduction from the disposable salary of an employee without the
employee's consent.
(i) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt owed by an employee as permitted or required by 5
U.S.C. 5584, 10 U.S.C. 2774, 32 U.S.C. 716, 5 U.S.C. 8346(b), or any
other law.
[53 FR 3, Jan. 4, 1988]
Sec. 400.129 Salary offset.
(a) Debt collection by salary offset is feasible if: the cost to the
Government of collection by salary offset does not exceed the amount of
the debt; there are no legal restrictions to the debt, such as the
debtor being under the jurisdiction of a bankruptcy court or the
expiration of a statute of limitations; or, other such legal
restrictions. The Debt Collection Act permits collections of debts by
offset for claims that have not been outstanding for more than 10 years.
(b) The salary offset provisions contained herein provide procedures
which must be followed before FCIC may request another Federal agency to
offset any amount from the debtor's salary. Decisions made under the
provisions of this section are not appealable under the provisions of
the Appeal Regulations in part 400, subpart J of this title.
(c) These regulations will not apply to any case where collection of
a debt by salary offset is explicitly provided for by another statute as
noted by the Comptroller General in 64 Comp. Gen. 142 (1984), including
5 U.S.C. 5512(a), 5 U.S.C. 5513, 5 U.S.C. 5522(a) (1), 5 U.S.C. 5705 (1)
and (2), and 5 U.S.C. 5724(f).
(d) Salary offset may be used by FCIC to collect debts which arise
from delinquent FCIC premium payments or delinquent repayment plans and
other debts arising from, but not limited to, such sources as program
theft, embezzlement, fraud, salary overpayments, underwithholding of any
amounts due and payable for life and health insurance, advance travel
payments, overpaid indemnities, and any amount owed by present or former
employees from loss of federal funds through negligence and other
matters. The debt does not have to be reduced to judgment and does not
have to be covered by a security instrument.
(e) FCIC may use salary offset against one of its employees who is
indebted to another agency if requested to do so by that agency. Salary
offset will not be initiated until after other servicing options
available to the requesting agency have been utilized, and due process
has been afforded to the FCIC employee. When salary offset is utilized,
payment for the debt will be deducted from the employee's salary and
sent directly to the creditor agency. Not more than fifteen percent
(15%) of the employee's disposable salary can be offset in any one pay
period, unless the employee agrees in writing to the deduction of a
larger amount.
(f) When FCIC is owed a debt by an employee of another agency, the
other agency shall not initiate the requested offset until FCIC provides
the agency with a written certification that the debtor owes FCIC a debt
(including the amount and basis of the debt and the due date of the
payment), and that
[[Page 23]]
FCIC has complied with Department regulations. If a repayment schedule
is elected by the employee, interest will be charged in accordance with
Departmental Regulation 2520-1, Interest Rate on Delinquent Debts; USDA
Debt Collection Regulations in 7 CFR part 3; and 4 CFR 102.13.
(g) For the purposes of this section, the Manager, FCIC, or the
Manager's designee, is delegated authority to:
(1) Certify to the debtor's employing agency that the debt exists
and the amount of the debt or delinquent balance;
(2) Certify that, with respect to debt collection, the procedures
and regulations of FCIC and the Department have been complied with; and
(3) Request that salary offset be initiated by the debtor's
employing agency.
[53 FR 3, Jan. 4, 1988]
Sec. 400.130 Notice requirements before offset.
Salary offset will not be made unless the employee receives 30
calendar days written notice. The notice of intent to offset salary
(notice of intent) will state:
(a) That FCIC has reviewed the records relating to the debt and has
determined that the debt is owed, and has verified the amount of the
debt, and the facts giving rise to the debt;
(b) That FCIC intends to deduct an amount not to exceed 15% of the
employees current disposable salary until the debt and all accumulated
interest are paid in full;
(c) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(d) An explanation of the requirements concerning interest,
penalties, and administrative costs, including a statement that these
assessments will be made unless waived in accordance with 31 U.S.C. 3717
and 7 CFR 3.34;
(e) That FCIC's records concerning the debt are available to the
employee for inspection and that the employee may request a copy of such
records;
(f) That the employee has a right to voluntarily enter into a
written agreement with FCIC for a repayment schedule with FCIC, which
may be different from that proposed by FCIC, if the terms of the
repayment agreement are agreed to by FCIC;
(g) That the employee has the right to a hearing conducted by an
Administrative Law Judge of USDA, or a hearing official not under the
control of USDA, concerning the determination of the debt, the amount of
the debt, or the percentage of disposable salary to be deducted each pay
period, if the petition for a hearing is filed by the employee as
prescribed by FCIC;
(h) The method and time period allowable for a petition for a
hearing;
(i) That the timely filing of a hearing petition will stay the
offset collection proceedings;
(j) That a final decision on the hearing will be issued at the
earliest practical date, but not later than 60 calendar days after the
filing of the petition, unless the employee requests, and the hearing
officer grants, a delay in the proceedings;
(k) That any knowingly false or frivolous statement, representation,
or evidence may subject the employee to:
(1) Disciplinary procedures appropriate under 5 U.S.C. Chapter 75, 5
CFR part 752, or any other applicable Statutes or regulations;
(2) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or
any other applicable statutory authority: or
(3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002, or
any other applicable statutory authority;
(l) Any other rights or remedies available to the employee under any
statute or regulations governing the program for which collection is
being made;
(m) That the employee may request waiver of salary overpayment under
applicable statutory authority (5 U.S.C. 5584, 10 U.S.C. 2774, 32 U.S.C
716, or 5 U.S.C 8346(b)), or may request waiver in the case of general
debts and if waiver is available under any statutory provision
pertaining to the particular debt being collected. The employee may
question the amount or validity of the salary overpayment or general
debt by submitting a claim to the Comptroller General in accordance with
General Accounting Officer procedure.
(n) That amounts paid on or deducted for the debt which are later
waived or
[[Page 24]]
found not to be owed to the United States will be promptly refunded to
the employee, unless there are applicable contractual or statutory
provisions to the contrary; and
(o) The name and address of an official of FCIC to whom the employee
should direct any communication with respect to the debt.
[53 FR 4, Jan. 4, 1988]
Sec. 400.131 Request for a hearing and result if an employee fails to
meet deadlines.
(a) Except as provided in paragraph (c) of this section, an employee
must file a petition for hearing that is received by the FCIC Official
not later than 30 calendar days from the date of the notice of intent to
collect a debt by salary offset, if the employee wants a hearing
concerning:
(1) The existence or amount of the debt; or
(2) The FCIC Official's proposed offset schedule, including the
percentage of deduction.
(b) The petition must be signed by the employee and should clearly
identify and explain with reasonable specificity and brevity the facts,
evidence and witnesses which the employee believes support the his or
her position. If the employee objects to the percentage of disposable
salary to be deducted from each check, the petition should state the
objection and the reasons for it.
(c) If the employee files a petition for hearing later than the 30
days provided in paragraph (a) of this section, the FCIC Official may
accept the petition if the employee is able to show that the delay
caused by conditions beyond his or her control, or because the employee
failed to received the notice of the filing deadline (unless the
employee has actual notice of the deadline).
(d) An employee will not be granted a hearing and will have his or
her disposable salary offset in accordance with the FCIC Official's
announced schedule if the employee:
(1) Fails to file a petition for hearing as set forth in this
subsection; or
(2) Is scheduled to appear and fails to appear at the hearing.
[53 FR 4, Jan. 4, 1988]
Sec. 400.132 Hearings.
(a) If an employee timely files a petition for a hearing, the FCIC
Official will select the date, time, and location for the hearing.
(b) The hearing shall be conducted by an appropriately designated
Hearing Official.
(c) Rules of evidence shall not be observed, but the hearing officer
will consider all evidence that he or she determines to be relevant to
the debt that is the subject of the hearing, and weigh all such evidence
accordingly, given all the facts and circumstances surrounding the debt.
(d) The burden of proof with respect to the existence of the debt
rests with FCIC.
(e) The employee requesting the hearing shall bear the ultimate
burden of proof.
(f) The evidence presented by the employee must prove that no debt
exists, or cast sufficient doubt such that reasonable minds could differ
as to the existence of the debt.
[53 FR 5, Jan. 4, 1988]
Sec. 400.133 Written decision following a hearing.
(a) At the conclusion of the hearing, a written decision will be
provided which will include:
(1) A statement of the facts presented at the hearing supporting the
nature and origin of the alleged debt and those presented to refute the
debt;
(2) The hearing officer's analysis, findings, and conclusions,
considering all the evidence presented and the respective burdens of the
parties, in light of the hearing;
(3) The amount and validity of the alleged debt determined as a
result of the hearing;
(4) The payment schedule (including the percentage of disposable
salary), if applicable; and
(5) The determination of the amount of the debt at this hearing is
the final agency action on this matter.
(b) [Reserved]
[53 FR 5, Jan. 4, 1988]
[[Page 25]]
Sec. 400.134 Review of FCIC record related to the debt.
An employee who intends to inspect or copy FCIC records related to
the debt must send a letter to the FCIC official (designated in the
notice of intent) stating his or her intentions. The letter must be
received by the FCIC official within 30 calendar days of the date of the
notice of intent. In response to the timely notice submitted by the
debtor, the FCIC official will notify the employee of the location and
time when the employee may inspect and copy FCIC records related to the
debt.
[53 FR 5, Jan. 4, 1988]
Sec. 400.135 Written agreement to repay debt as an alternative to
salary offset.
The employee may propose, in response to a notice of intent, a
written agreement to repay the debt as an alternative to salary offset.
The proposed written agreement to repay the debt must be received by the
FCIC official within 30 calendar days of the date of the notice of
intent. The FCIC official will notify the employee whether the
employee's proposed written agreement for repayment is acceptable. The
FCIC official may accept a repayment agreement instead of proceeding by
offset. In making this determination, the FCIC official will balance the
FCIC interest in collecting the debt against hardship to the employee.
If the debt is delinquent and the employee has not disputed its
existence or amount, the FCIC official will accept a repayment
agreement, instead of offset, for good cause such as, if the employee
establishes that offset would result in undue financial hardship, or
would be against equity and good conscience.
[53 FR 5, Jan. 4, 1988]
Sec. 400.136 Procedures for salary offset; when deductions may begin.
(a) Deductions to liquidate an employee's debt will be made by the
method and in the amount outlined in the Notice of Intent to collect
from the employee's salary, as provided for in Sec. 400.130.
(b) If the employee files a petition for a hearing before the
expiration of the period provided for in Sec. 400.130, then deductions
will begin after the hearing officer has provided the employee with a
final written decision in favor of FCIC.
(c) If an employee retires or resigns before collection of the
amount of the indebtedness is completed, the remaining indebtedness will
be collected in accordance with procedures for administrative offset.
[53 FR 5, Jan. 4, 1988]
Sec. 400.137 Procedures for salary offset; types of collection.
A debt will be collected in a lump-sum or in installments.
Collection will be by lump-sum collection unless the employee is
financially unable to pay in one lump-sum, or if the amount of the debt
exceeds 15 percent of the disposable pay for an ordinary pay period. In
these cases, deduction will be by installments as set forth in
Sec. 400.138.
[53 FR 5, Jan. 4, 1988]
Sec. 400.138 Procedures for salary offset; methods of collection.
(a) General. A debt will be collected by deductions at officially-
established pay intervals from an employee's current pay account, unless
the employee and the hearing official agree to alternative arrangements
for repayment under Sec. 400.135.
(b) Installment deductions. Installment deductions will be made over
a period not greater than the anticipated period of employment. The size
and frequency of the installment deductions will bear a reasonable
relation to the size of the debt and the employee's ability to pay. If
possible, the installment payment will be sufficient in size and
frequency to liquidate the debt in no more than three years. Installment
payments of less than $25.00 per pay period, or $50.00 per month, will
be accepted only in the most unusual circumstances.
[53 FR 5, Jan. 4, 1988]
Sec. 400.139 Nonwaiver of rights.
So long as there are no statutory or contractual provisions to the
contrary, no employee payment (or all or portion of a debt) collected
under these regulations will be interpreted as a waiver of
[[Page 26]]
any rights that the employee may have under the provisions of 5 U.S.C.
5514.
[53 FR 5, Jan. 4, 1988]
Sec. 400.140 Refunds.
FCIC will promptly refund to the appropriate individual amounts
offset under these regulations when:
(a) A debt is waived or otherwise found not owing to the United
States (unless expressly prohibited by statute or regulation); or
(b) FCIC is directed by an administrative or judicial order to
refund amounts deducted from an employee's current pay.
[53 FR 5, Jan. 4, 1988]
Sec. 400.141 Internal Revenue Service (IRS) Tax Refund Offset.
Under the provisions of 31 U.S.C. 3720A, the (IRS) may be requested
to collect a legally enforceable debt owing to any Federal agency by
offset against a taxpayer's Federal income tax refund. This section
provides policies and procedures to implement IRS tax refund offsets in
accordance with the provisions set forth in Sec. 301.6402-6T of 26 CFR
chapter I.
(a) Any person who is indebted to the Federal Crop Insurance
Corporation (FCIC) is entitled to the extent of FCIC's administrative
due process including review and appeal of the debt under the Appeal
Regulations in 7 CFR part 400, subpart J.
(b) If, after such administrative due process is exhausted, the debt
is still outstanding with no other means of collection, the debtor will
be notified by letter of FCIC's intention to refer such debt to the IRS
for collection by tax refund offset. The notification letter will inform
the debtor that their account is delinquent and that IRS will be
requested to reduce the amount of any tax refund check due the debtor by
the amount of the deliquency. The debtor will be given 60 days in which
to write to the Manager, FCIC, providing written evidence that the debt
is not legally enforceable. FCIC will refer the debt to IRS for
collection by offset after the 60-day period if no response is received
from the debtor. Decisions made under the provisions of this section are
not appealable under the provisions of the Appeal Regulations in 7 CFR
part 400, subpart J.
(c) If the debtor has requested a review, and has provided written
evidence that the debt is not legally enforceable, the Manager, with the
assistance of the Office of General Counsel, USDA, will review the
debtor's reasons for believing that the debt is not legally enforceable.
The debtor will then be notified of the results of the review.
(d) FCIC will notify IRS of those accounts against which offset
action is to be taken.
(e) If, during the period of review, the debtor pays the debt in
full, the collection of the debt by tax refund offset procedure will be
halted. Changes in debtor status that eliminate the debtor from IRS
offset will be reported to IRS by FCIC and the debtor's refund will not
be offset.
(f) Amounts offset for delinquent debt which are later found to be
not owed to FCIC, will be promptly refunded.
(g) Debtors will not be subject to IRS offset for any of the
following reasons:
(1) Debtors who are discharged in bankruptcy or who are under the
jurisdiction of a bankruptcy court;
(2) Debtors who are employed by the Federal Government;
(3) Debtors whose cases are in suspense because of actions pending
by or taken by FCIC;
(4) Debtors who have not provided a Social Security Number (SSN) and
no SSN can be obtained;
(5) Debtors whose indebtedness is less than $25;
(6) Debtors whose account is more than ten (10) years delinquent;
except in the case of a judgment debt; or
(7) Debtors whose account has not been first reported to a consumer
credit reporting agency.
[53 FR 5, Jan. 4, 1988]
Sec. 400.142 Past-due legally enforceable debt eligible for refund
offset.
For purposes of this section, a past-due, legally enforceable debt
which may be referred by FCIC to IRS for offset is a debt which:
(a) Except in the case of a judgement debt, has been delinquent for
at least
[[Page 27]]
three months but has not been delinquent for more than 10 years at the
time the offset is made;
(b) Cannot be currently collected pursuant to the salary offset
provisions of 5 U.S.C. 5514(a)(1);
(c) Is ineligible for administrative offset under 31 U.S.C. 3716(a)
by reason of 31 U.S.C. 3716(c)(2), or cannot be collected by
administrative offset under 31 U.S.C. 3716(a) by the referring agency
against amounts payable to the debtor by the referring agency;
(d) With respect to which the agency has given the employee at least
60 days to present evidence that all or part of the debt is not past-due
or legally enforceable, has considered evidence presented by such
employee, and has determined that an amount of such debt is past-due and
legally enforceable;
(e) Has been disclosed by FCIC to a consumer reporting agency as
authorized by 31 U.S.C. 3711(f), in the case of a debt to be referred to
IRS after June 30, 1986;
(f) With respect to which that FCIC has notified, or has made a
reasonable attempt to notify, the employee that:
(1) The debt is past due; and
(2) Unless repaid within 60 days thereafter, will be referred to IRS
for offset against any overpayment of tax; and
(3) Which is at least $25.00.
[53 FR 6, Jan. 4, 1988]
Subpart L_Reinsurance Agreement_Standards for Approval; Regulations for
the 1997 and Subsequent Reinsurance Years
Authority: 7 U.S.C. 1506(l), 1506(p).
Source: 52 FR 17543, May 11, 1987, unless otherwise noted.
Redesignated at 53 FR 3, Jan. 4, 1988, and further redesignated at 53 FR
10527, Apr. 1, 1988.
Sec. 400.161 Definitions.
In addition to the terms defined in the Standard Reinsurance
Agreement, the following terms as used in this rule are defined to mean:
(a) Annual Statutory Financial Statement means the annual financial
statement of an insurer prepared in accordance with Statutory Accounting
Principles and submitted to the state insurance department if required
by any state in which the insurer is licensed.
(b) Company means the company reinsured by FCIC or apply to FCIC for
a Standard Reinsurance Agreement.
(c) Corporation means the Federal Crop Insurance Corporation.
(d) FCIC means the Federal crop Insurance Corporation.
(e) Financial statement means any documentation submitted by a
company as required by this subpart.
(f) Guaranty fund assessments means the state administered program
utilized by some state insurance regulatory agencies to obtain funds
with which to discharge unfunded obligations of insurance companies
licensed to do business in that state.
(g) Insurer means an insurance company that is licensed or admitted
as such in any State, Territory, or Possession of the United States.
(h) MPUL means the maximum possible underwriting loss that an
insurer can sustain on policies it intends to reinsure with FCIC, after
adjusting for the effect of any reinsurance agreement with FCIC, and any
outside reinsurance agreements, as evaluated by FCIC.
(i) Obligations mean crop or indemnity for crop loss on policies
reinsured under the Standard Reinsurance Agreement.
(j) Plan of operation means a statment submitted to FCIC each year
in which a reinsured or a prospective reinsured specifies the
reinsurance options it wishes to use, its marketing plan, and similar
information as required by the Corporation.
(k) Quarterly Statutory Financial Statement means the quarterly
financial statement of an insurer prepared in accordance with Statutory
Accounting Principles and submitted to the state insurance department if
required by any state in which the insurer is licensed.
(l) Reinsurance agreement means an agreement between two parties by
which an insurer cedes to a reinsurer certain liabilities arising from
the insurer's sale of insurance policies.
(m) Reinsured means the insurer which is a party to the Standard
Reinsurance Agreement with FCIC.
[[Page 28]]
(n) Standard Reinsurance Agreement (Agreement) means the reinsurance
agreement between the reinsured and FCIC.
[52 FR 17543, May 11, 1987. Redesignated at 53 FR 3, Jan. 4, 1988, as
amended at 57 FR 34666, Aug. 6, 1992; 60 FR 57903, Nov. 24, 1995]
Sec. 400.162 Qualification ratios.
The sixteen qualification ratios include:
(a) Eleven National Association of Insurance Commissioner's (NAIC's)
Insurance Regulatory Information System (IRIS) ratios found in
Sec. Sec. 400.170(d)(1)(ii) and 400.170(d)(2) (i), (ii), (iii), (vi),
(vii), (ix), (xi), (xii), (xiii), and (xiv) and referenced in ``Using
the NAIC Insurance Regulatory Information System'' distributed by NAIC,
120 West 12th St., Kansas City, MO 64105-1925;
(b) Three ratios used by A.M. Best Company found in
Sec. 400.170(d)(2) (v), (viii), and (x) and referenced in Best's Key
Rating Guide, A.M. Best, Ambest Road, Oldwick, N.J. 08858-0700;
(c) One ratio found in Sec. 400.170(d)(1)(i) is calculated the same
as the Gross Premium to Surplus IRIS ratio, with Gross Premium adjusted
to exclude the MPCI premium assumed by FCIC; and
(d) One ratio found in Sec. 400.170(d)(2)(iv) which is formulated by
FCIC and is calculated the same as the One-Year Change to Surplus IRIS
ratio but for a two-year period.
[60 FR 57903, Nov. 24, 1995]
Sec. 400.163 Applicability.
The standards contained herein shall be applicable to insurers who
apply for or enter into a Standard Reinsurance Agreement effective for
the 1997 and subsequent reinsurance years or who continue with a prior
years Standard Reinsurance Agreement into the 1997 and subsequent
reinsurance years.
[60 FR 57903, Nov. 24, 1995]
Sec. 400.164 Availability of the Standard Reinsurance Agreement.
Federal Crop Insurance Corporation will offer Standard Reinsurance
Agreements to eligible Companies under which the Corporation will
reinsure policies which the Companies issue to producers of agricultural
commodities. The Standard Reinsurance Agreement will be consistent with
the requirements of the Federal Crop Insurance Act, as amended, and
provisions of the regulations of the Corporation found at chapter IV of
title 7 of the Code of Federal Regulations.
Sec. 400.165 Eligibility for Standard Reinsurance Agreements.
A Company will be eligible to participate in an Agreement if the
Corporation determines the Company meets the standards and reporting
requirements of this subpart.
Sec. 400.166 Obligations of the Corporation.
The Agreement will include the following among the obligations of
the Corporation.
(a) The Corporation will reinsure policies written on terms,
including premium rates, approved by the Corporation, on crops and in
areas approved by the Corporation, and in accordance with the provisions
of the Federal Crop Insurance Act, as amended, and the provisions of
these regulations.
(b) The Corporation will pay a portion of each producer's premium on
the policies reinsured under the Agreement, as authorized by the Federal
Crop Insurance Act, as amended.
(c) The Corporation will assume all obligations for unpaid losses on
policies reinsured under the Agreement in the event any company
reinsured under the Agreement is unable to fulfill its obligations to
any holder of a Multiple Peril Crop Insurance Policy reinsured by the
Corporation by reason of a directive or order issued by any State
Department of Insurance, State Commissioner of Insurance, any court of
law having competent jurisdiction or any other similar authority of any
jurisdiction to which the Company is subject.
(d) Each policy reinsured by the Corporation must be clearly
identified by including in bold face or large type the following
statement as item number 1 in its General Provisions:
This insurance policy is reinsured by the Federal Crop Insurance
Corporation under the provisions of the Federal Crop Insurance Act, as
amended (the Act) (7 U.S.C. 1501 et seq.), and all terms of the policy
and rights
[[Page 29]]
and responsibilities of the parties are specifically subject to the Act
and the regulations under the Act published in chapter IV of 7 CFR.
Sec. 400.167 Limitations on Corporation's obligations.
The Agreement will include the following among the limitations on
the obligations of the Corporation.
(a) The Corporation may, at any time, suspend its obligation to
accept additional liability from the Company by providing written notice
to that effect.
(b) The obligations of the Corporation under the Agreement are
contingent upon the availability of appropriations.
(c) The Corporation will not reinsure any policy sold by the Company
to a producer after the date Company receives notice that the
Corporation has determined that the producer is ineligible to receive
Federal Crop Insurance.
Sec. 400.168 Obligations of participating insurance company.
The Agreement will include the following among the obligations of
the Company.
(a) The Company shall follow all applicable Corporation procedures
in its administration of the crop insurance policies reinsured.
(b) The Company shall make available to all eligible producers in
the areas designated in its plan of operations as approved by the
Corporation:
(1) The crop insurance plans for the crops designated in its plan of
operation in those counties within a State, or a portion of a State,
where the Secretary of Agriculture has determined that insurance is
available through local offices of the United States Department of
Agriculture; and
(2) Catastrophic risk protection, limited, and additional coverage
plans of insurance for all crops, for which such insurance is made
available by the Corporation, in all counties within a state, or a
portion of State, where the Secretary of Agriculture has determined that
insurance is no longer available through local offices of the United
States Department of Agriculture.
(c) The Company shall provide the Corporation, on forms approved by
the Corporation all information that the Corporation may deem relevant
in the administration of the Agreement, including a list of all
applicants determined to be ineligible for crop insurance coverage and
all insured producers cancelled or terminated from insurance, along with
the reason for such action, the crop program, and the amount of coverage
for each.
(d) The Company shall utilize only loss adjustment procedures and
methods that are approved by the Corporation.
(e) The Company shall sell the policies covered under the Agreement
through licensed agents or brokers who have successfully completed a
training course approved by the Corporation.
(f) The Company shall not discriminate against any employee,
applicant for employment, insured or applicant for insurance because of
race, color, religion, sex age, handicap, or national origin.
[52 FR 17543, May 11, 1987. Redesignated at 53 FR 3, Jan. 4, 1988, as
amended at 61 FR 34368, July 2, 1996; 61 FR 65153, Dec. 11, 1996]
Sec. 400.169 Disputes.
(a) If the company believes that the Corporation has taken an action
that is not in accordance with the provisions of the Standard
Reinsurance Agreement or any reinsurance agreement with FCIC, except
compliance issues, it may request the Deputy Administrator of Insurance
Services to make a final administrative determination addressing the
disputed action. The Deputy Administrator of Insurance Services will
render the final administrative determination of the Corporation with
respect to the applicable actions. All requests for a final
administrative determination must be in writing and submitted within 45
days after receipt after the disputed action.
(b) With respect to compliance matters, the Compliance Field Office
renders an initial finding, permits the company to respond, and then
issues a final finding. If the company believes that the Compliance
Field Office's final finding is not in accordance with the applicable
laws, regulations, custom or practice of the insurance industry, or FCIC
approved policy and procedure, it
[[Page 30]]
may request, the Deputy Administrator of Compliance to make a final
administrative determination addressing the disputed final finding. The
Deputy Administrator of Compliance will render the final administrative
determination of the Corporation with respect to these issues. All
requests for a final administrative determination must be in writing and
submitted within 45 days after receipt of the final finding.
(c) A company may also request reconsideration by the Deputy
Administrator of Insurance Services of a decision of the Corporation
rendered under any Corporation bulletin or directive which bulletin or
directive does not interpret, explain, or restrict the terms of the
reinsurance agreement. The company, if it disputes the Corporation's
determination, must request a reconsideration of that determination in
writing, within 45 days of the receipt of the determination.Such
determinations will not be appealable to the Civilian Board of Contract
Appeals.
(d) Appealable final administrative determinations of the
Corporation under paragraph (a) or (b) of this section may be appealed
to the Civilian Board of Contract Appeals in accordance with 48 CFR part
6102.
[65 FR 3782, Jan. 25, 2000, as amended at 72 FR 31438, June 7, 2007]
Sec. 400.170 General qualifications.
To qualify initially or thereafter for a Standard Reinsurance
Agreement with FCIC, an insurer must:
(a) Be licensed or admitted in any state, territory, or possession
of the United States;
(b) Be licensed or admitted, or use as a policy-issuing Company an
insurer that is licensed or admitted, in each state from which the
insurer will cede policies to FCIC for reinsurance;
(c) Have surplus, as reported in its most recent Annual or Quarterly
Statutory Financial Statement, that is at least equal to the MPUL for
the company's estimated retained premium proposed to be reinsured,
multiplied by the appropriate Minimum Surplus Factor found in the
Minimum Surplus Table. For the purposes of the Minimum Surplus Table, an
insurer is considered to issue policies in a state if at least two and
one-half percent (2.5%) of all its reinsured retained premium is written
in that state;
Minimum Surplus Table
------------------------------------------------------------------------
Minimum
surplus
Number of states in which a company issues FCIC-reinsured factor
policies (multiplied
by MPUL)
------------------------------------------------------------------------
1 through 10............................................... 2.5
11 or more................................................. 2.0
------------------------------------------------------------------------
(d) Have and meet the ratio requirements of the Gross Premium to
Surplus and Net Premium to Surplus required ratios and at least ten of
the fourteen analytical ratios in this section based on the most recent
Annual Statutory Financial Statement, or comply with Sec. 400.172:
------------------------------------------------------------------------
Ratio Ratio requirement
------------------------------------------------------------------------
(1) Required:
(i) Gross Premium to Surplus.......... Less than 900%.
(ii) Net Premium to Surplus........... Less than 300%.
(2) Analytical:
(i) Two-Year Overall Operating Ratio.. Less than 100%.
(ii) Agents' Balances to Surplus...... Less than 40%.
(iii) One-Year Change in Surplus...... Greater than -10% and less
than 50%.
(iv) Two-Year Change in Surplus....... Greater than -10%.
(v) Combined Ratio After Policyholder Less than 115%.
Dividends.
(vi) Change in Writing................ Greater than -33% and less
than 33%.
(vii) Surplus Aid to Surplus.......... Less than 15%.
(viii) Quick Liquidity................ Greater than 20%.
(ix) Liabilities to Liquid Asset...... Less than 105%.
(x) Return on Surplus................. Greater than -5%.
(xi) Investment Yield................. Greater than 4.5% and less
than 10%.
(xii) One-Year Reserve Development to Less than 20%.
Surplus.
(xiii) Two-Year Reserve Development to Less than 20%.
Surplus.
(xiv) Estimated Current Reserve Less than 25%.
Deficiency to Surplus.
------------------------------------------------------------------------
(e) Submit to FCIC all of the following statements:
(1) Annual and Quarterly Statutory Financial Statements;
(2) Statutory Management Discussion & Analysis;
(3) Most recent State Insurance Department Examination Report;
(4) Actuarial Opinion of Reserves;
[[Page 31]]
(5) Annual Audited Financial Report; and
(6) Any other appropriate financial information or explanation of
IRIS ratio discrepancies as determined by the company or as requested by
FCIC.
[60 FR 57903, Nov. 24, 1995]
Sec. 400.171 Qualifying when a state does not require that an Annual
Statutory Financial Statement be filed.
An insurer exempt by the insurance department of the states where
they are licensed from filing an Annual Statutory Financial Statement
must, in addition to the requirements of Sec. 400.170 (a), (b), (c) and
(d), submit an Annual Statutory Financial Statement audited by a
Certified Public Accountant in accordance with generally accepted
auditing standards, which if not exempted, would have been filed with
the insurance department of any state in which it is licensed.
[60 FR 57904, Nov. 24, 1995]
Sec. 400.172 Qualifying with less than two of the required ratios or
ten of the analytical ratios meeting the specified
requirements.
An insurer with less than two of the required ratios or ten of the
analytical ratios meeting the specified requirements in Sec. 400.170(d)
may qualify if, in addition to the requirements of Sec. 400.170 (a),
(b), (c) and (e), the insurer:
(a) Submits a financial management plan acceptable to FCIC to
eliminate each deficiency indicated by the ratios, or an acceptable
explanation why a failed ratio does not accurately represent the
insurer's insurance operations; or
(b) Has a binding agreement with another insurer that qualifies such
insurer under this subpart to assume financial responsibility in the
event of the reinsured company's failure to meet its obligations on FCIC
reinsured policies.
[60 FR 57904, Nov. 24, 1995]
Sec. 400.173 [Reserved]
Sec. 400.174 Notification of deviation from financial standards.
An insurer must immediately advise FCIC if it deviates from
compliance with any of the requirements of this chapter. FCIC may
require the insurer to update its financial statements during the year.
FCIC may terminate the reinsurance agreement if the Company is out of
compliance with the requirements of this chapter.
[52 FR 17543, May 11, 1987. Redesignated at 53 FR 3, Jan. 4, 1988, as
amended at 60 FR 57904, Nov. 24, 1995]
Sec. 400.175 Revocation and non-acceptance.
(a) FCIC will deny reinsurance to any insurer or will terminate any
existing reinsurance agreement if any false or misleading statement is
made in the financial statements or any other document submitted by the
insurer in connection with its qualification for FCIC reinsurance.
(b) No policy issued by an insurer subsequent to revocation of a
reinsurance agreement will be reinsured by FCIC. Policies in effect at
the time of revocation will continue to be reinsured by FCIC for the
balance of the crop year then in effect for the applicable crop.
However, if materially false information is made to the Corporation and
that information directly affects the ability of the Company to perform
under the Agreement, or if the Company commits any fraudulent or
criminal act in relation to the Standard Reinsurance Agreement or any
policy reinsured under the Agreement, FCIC may require that the Company
transfer the servicing and contractual right to all business in effect
and reinsured by the Corporation to the Corporation.
[52 FR 17543, May 11, 1987. Redesignated at 53 FR 3, Jan. 4, 1988, as
amended at 60 FR 57904, Nov. 24, 1995]
Sec. 400.176 State action preemptions.
(a) No policyholder shall have recourse to any state guaranty fund
or similar state administered program for crop or premium losses
reinsured under such Standard Reinsurance Agreement. No assessments for
such State funds or programs shall be computed or levied on companies
for or on account of any premiums payable on policies of Multiple Peril
Crop Insurance reinsured by the Corporation.
[[Page 32]]
(b) No policy of insurance reinsured by the Corporation and no
claim, settlement, or adjustment action with respect to any such policy
shall provide a basis for a claim of punitive or compensatory damages or
an award of attorney fees or other costs against the Company issuing
such policy, unless a determination is obtained from the Corporation
that the Company, its employee, agent or loss adjuster failed to comply
with the terms of the policy or procedures issued by the Corporation and
such failure resulted in the insured receiving a payment in an amount
that is less than the amount to which the insured was entitled.
[52 FR 17543, May 11, 1987. Redesignated at 53 FR 3, Jan. 4, 1988, as
amended at 69 FR 48730, Aug. 10, 2004]
Sec. 400.177 [Reserved]
Subpart M_Agency Sales and Service Contract_Standards for Approval
Authority: 7 U.S.C. 1506, 1516.
Source: 53 FR 24015, June 27, 1988, unless otherwise noted.
Sec. 400.201 Applicability of standards.
Federal Crop Insurance Corporation will offer an Agency Sales and
Service Contract (the Contract) to private entities meeting the
requirements set forth in this subpart under which the Corporation will
insure producers of agricultural commodities. The Contract will be
consistent with the requirements of the Federal Crop Insurance Act, as
amended, and the provisions of the regulations of the Corporation found
at chapter IV of title 7 of the Code of Federal Regulations. The
Standards contained herein are required for an entity to be a contractor
under the Contract.
Sec. 400.202 Definitions.
For the purpose of these Standards:
(a) Agency Sales and Service Contract or the Contract means the
written agreement between the Federal Crop Insurance Corporation
(Corporation) and a private entity (Contractor) for the purpose of
selling and servicing Federal Crop Insurance policies and includes, but
is not limited to, the following:
(1) The Agency Sales and Service Contract;
(2) Any Appendix to the Agency Sales and Service Contract issued by
the Corporation;
(3) The annual approved Plan or Operation; and
(4) Any amendment adopted by the parties.
(b) BELL 208B (or compatible) modem--means a modem meeting the
standards developed by BELL Laboratories for dial-up, half-duplex, 4800
or 9600 bits per second (bps) transmission of data utilizing 3780 (or
2780) protocol.
(c) Contract, the see Agency Sales and Service Contract.
(d) Contractor's electronic system (system) means the data
processing hardware and software, data communications hardware and
software, and printers utilized with the system.
(e) CPA means a Certified Public Accountant who is licensed as such
by the State in which the CPA practices.
(f) CPA Audit means a professional examination conducted by a CPA in
accordance with generally accepted auditing standards of a Financial
Statement on the basis of which the CPA expresses an independent
professional opinion respecting the fairness of presentation of the
Financial Statement.
(g) Current Assets means cash and other assets that are reasonably
expected to be realized in cash or sold or consumed during the normal
operation cycle of the business or within one year if the operation
cycle is shorter than one year.
(h) Current Liabilities means those liabilities expected to be
satisfied by either the use of assets classified as current in the same
balance sheet, or the creation of other current liabilities, or those
expected to be satisfied within a relatively short period of time,
usually one year.
(i) Financial Statement means the documents submitted to the
Corporation by a private entity which portray the financial information
of the entity. The financial statement must be prepared in accordance
with Generally Accepted Accounting Principles (GAAP) and reflect the
financial position in the Statement of Financial Condition or
[[Page 33]]
Balance Sheet; and the result of operations in the Statement of Profit
and Loss or Income Statement.
(j) Processing representative means a person or organization
designated by the Contractor to be responsible for data entry and
electronic transmission of data contained on crop insurance documents.
(k) Sales means new applications and renewals of FCIC policies.
(l) Suspended Data Notice means a notification of a temporary stop
or delay in the processing of data transmitted to the Corporation by the
Contractor because the same is incomplete, non-processable, obsolete, or
erroneous.
(m) 3780 protocol--means the data communications protocol (standard)
that is a binary synchronous communications (BSC), International
Business Systems (IBM)-defined, byte controlled communications protocol,
using control characters and synchronized transmission of binary coded
data.
Sec. 400.203 Financial statement and certification.
(a) An entity desiring to become or continue as a contractor shall
submit to the Corporation a financial statement which is as of a date
not more than eighteen (18) months prior to the date of submission.
(b) The financial statement submitted shall be audited by a CPA (CPA
Audit); or if a CPA audited financial statement is not available, the
statement submitted to the Corporation must be accompanied by a
certification of:
(1) The owner, if the business entity is a sole proprietorship; or
(2) At least one of the general partners, if the business entity is
a partnership; or
(3) The Chief Executive Officer and Treasurer, if the business
entity is a Corporation, that said statement fairly represents the
financial condition of the entity on the date of such certification to
the Corporation. If the financial statement as certified by the Chief
Executive Officer and Treasurer, partner, or owner is submitted, a CPA
audited financial statement must be submitted if subsequently available.
Sec. 400.204 Notification of deviation from standards.
A Contractor shall advise the Corporation immediately if the
Contractor deviates from the requirements of these standards. The
Corporation may require the Contractor to show compliance with these
standards during the contract year if the Corporation determines that
such submission is necessary. If the Corporation determines that the
deviation is temporary, the Corporation may grant a temporary waiver
pending compliance within a specified period of time. A waiver of any
provision of these standards will not be granted to an applicant for a
contract.
Sec. 400.205 Denial or termination of contract and administrative
reassignment of business.
Non-compliance with these standards will result in:
(a) The denial of a Contract; or
(b) Termination of an existing Contract.
In the event of denial or termination of the Contract, all crop
insurance policies of the Corporation sold by the Contractor and all
business pertaining thereto may be assumed by the Corporation and may be
administratively reassigned by the Corporation to another Contractor.
Sec. 400.206 Financial qualifications for acceptability.
The financial statement of an entity must show total allowable
assets in excess of liabilities and the ability of the entity to meet
current liabilities by the use of current assets.
Sec. 400.207 Representative licensing and certification.
(a) A Contractor must maintain twenty-five (25) licensed and
certified Contractor Representatives.
(b) A Contractor's Representative who solicits, sells and services
FCIC policies or represents the Contractor in solicitation, sales or
service of such policies must hold a license as issued by the State or
States in which the policies are issued, which license authorizes the
sales of insurance in any one or more of the following lines:
(1) Multiple peril crop insurance;
[[Page 34]]
(2) Crop hail insurance;
(3) Casualty insurance;
(4) Property insurance;
(5) Liability insurance; or
(6) Fire insurance and allied lines.
The Contractor must submit evidence, satisfactory to the
Corporation, verifying the type of State license held by each
Representative and the date of expiration of each license.
(c) A Contractor's Representative must have achieved certification
by the Corporation for each crop upon which the Representative sells and
services insurance.
Sec. 400.208 Term of the contract.
(a) The term of the Contract shall commence on July 1 or when
signed. The contract will continue from year to year with an annual
renewal date of July 1 for each succeeding year unless the Corporation
or the Contractor gives at least ninety (90) days advance notice in
writing to the other party that the contract is not to be renewed. Any
breach of the contract, or failure to comply with these Standards, by
the Contractor, may result in termination of the contract by the
Corporation upon written notice of termination to the Contractor. That
termination will be effective thirty (30) days after mailing of the
notice and termination to the Contractor.
(b) A Contractor who elects to continue under the Contract for a
subsequent year must, prior to the month of June, submit a completed
Plan of Operation which includes the Certifications as required by
Sec. 400.203 of this subpart. The Contractor may not perform under the
contract until the Plan of Operation is approved by the Corporation.
Sec. 400.209 Electronic transmission and receiving system.
Any Contractor under the Contract is required to:
(a) Adopt a plan for the purpose of transmitting and receiving
electronically, information to and from the Corporation concerning the
original executed crop insurance documents;
(b) Maintain an electronic system which must be tested and approved
by the Corporation;
(c) Maintain Corporation approval of the electronic system as a
condition to the electronic transmission and reception of data by the
Contractor;
(d) Utilize the Corporation approved automated data processing and
electronic data transmission capabilities to process crop insurance
documents as required herein; and
(e) Establish and maintain the electronic equipment and computer
software program capability to:
(1) Receive and store actuarial data electronically via
telecommunications utilizing 3780 protocol and utilizing a BELL 208B or
compatible modem at 4800 bits per second (bps);
(2) Enter and store information from original crop insurance
documents into electronic format;
(3) Verify electronically stored information recorded from crop
insurance documents with electronically stored actuarial information;
(4) Compute and print the data elements in the Summary of
Protection;
(5) Transmit crop insurance data electronically, via 3780 protocol
utilizing a BELL 208B or compatible modem at 4800 bps;
(6) Receive electronic acknowledgements, error messages, and other
data via 3780 protocol utilizing a BELL 208B or compatible modem at 4800
bps, and relate error messages to original crop insurance documents; and
(7) Store backup data and physical documents.
(The Corporation may approve other compatible specifications if
accepted by the Corporation and if requested by the Contractor)
Sec. 400.210 [Reserved]
Subpart N [Reserved]
Subpart O_Non-Standard Underwriting Classification System Regulations
for the 1991 and Succeeding Crop Years
Authority: 7 U.S.C. 1506(l), 1506(p).
Source: 55 FR 32595, Aug. 10, 1990, unless otherwise noted.
[[Page 35]]
Sec. 400.301 Basis, purpose, and applicability.
The regulations contained in this subpart are issued pursuant to the
Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.), to
prescribe the procedures for nonstandard determinations and the
assignment of assigned yields or premium rates in conformance with the
intent of section 508 of the Act (7 U.S.C. 1508). These regulations are
applicable to all policies of insurance insured or reinsured by the
Corporation under the Act and on those policies where the insurance
coverage or indemnities are based on determinations applicable to the
individual insured. These regulations will not be applicable to any
policy where the amount of coverage or indemnities are based on the
experience of the area.
[62 FR 22876, Apr. 28, 1997]
Sec. 400.302 Definitions.
Act means Federal Crop Insurance Act as amended (7 U.S.C. 1501 et
seq.).
Actively engaged in farming means a person who, in return for a
share of profits and losses, makes a contribution to the production of
an insurable crop in the form of capital, equipment, land, personal
labor, or personal management.
Actual yield means total harvested production of a crop divided by
the number of acres on which the crop was planted. For insured acres,
actual yield is the total production to count as defined in the
insurance policy, divided by insured acres.
Assigned yield means units of crop production per acre
administratively assigned by the Corporation for the purpose of
determining insurance coverage.
Corporation means the Federal Crop Insurance Corporation.
Cumulative earned premium rate is the total premium earned for all
years in the base period, divided by the total liability for all years
in the base period with the result expressed as a percentage.
Cumulative loss ratio means the ratio of total indemnities to total
earned premiums during the base period expressed as a decimal.
Earned premium means premium earned (both the amount subsidized and
the amount paid by the producer, but excluding any amount of the subsidy
attributed to the operating and administrative expenses of the insurance
provider) for a crop under a policy insured or reinsured by the
Corporation.
Earned premium rate--means premium earned divided by liability and
expressed as a percentage.
Entity--means a person as defined in this subpart other than an
individual.
Indemnified loss means a loss applicable for the policy for any year
during the NCS base period for which the total indemnity exceeds the
total earned premium. If the person has insurance for the crop in more
than one county for any crop year, indemnities and premiums will be
accumulated for all counties for each crop year to determine an
indemnified loss.
Insurance experience means earned premiums, indemnities paid (but
not including replant payments), and other data for the crop (after
applicable adjustments), resulting from all of the insured's crop
insurance policies insured or reinsured by the Corporation for one or
more crop years and will include all information from all counties in
which the person was insured.
Loss ratio--means the ratio of indemnity to earned premium expressed
as a decimal.
NCS means nonstandard classification system.
NCS base period means the 10 consecutive crop years (as defined in
the crop policy) ending 2 crop years prior to the crop year in which the
NCS classification becomes effective for all crops, except those
specified on the Special Provisions. For these excepted crops, the NCS
base period means the 10 consecutive crop years ending 3 crop years
prior to the crop year in which the NCS classification becomes
effective. For example: An NCS classification effective for the 1996
crop year against a producer of citrus production in Arizona,
California, and Texas, or sugarcane would have a NCS base period that
includes the 1984 through 1993 crop years. An NCS classification
effective for the 1996 crop year against a producer of all other crops
would have a
[[Page 36]]
NCS base period that includes the 1985 through 1994 crop years.
Person--means an individual, partnership, association, corporation,
estate, trust, or other legal entity, and whenever applicable, a State
or a political subdivision, or agency of a state.
Substantial beneficial interest--means an interest of 10 percent or
more. In determining whether such an interest equals at least 10
percent, all interests which are owned directly or indirectly through
such means as ownership of shares in a corporation which owns the
interest will be taken into consideration.
[55 FR 32595, Aug. 10, 1990, as amended at 62 FR 22876, Apr. 28, 1997]
Sec. 400.303 Initial selection criteria.
(a) Nonstandard classification procedures in this subpart initially
apply when all of the following insurance experience criteria (including
any applicable adjustment in Sec. 400.303(d)) for the crop have been
met:
(1) Three (3) or more indemnified losses during the NCS base period;
(2) Cumulative indemnities in the NCS base period that exceed
cumulative premiums during the same period by at least $500;
(3) The result of dividing the number of indemnified losses during
the NCS base period by the number of years premium is earned for that
period equals .30 or greater; and
(4) Either of the following apply:
(i) The natural logarithm of the cumulative earned premium rate
multiplied by the square root of the cumulative loss ratio equals 2.00
or greater; or
(ii) Five (5) or more indemnified losses have occurred during the
NCS base period and the cumulative loss ratio equals or exceeds 1.50.
(b) The minimum standards provided in paragraphs (a) (2), (3), and
(4) of this section may be increased in a specific county if that
county's overall insurance experience for the crop is substantially
different from the insurance experience for which the criteria was
determined. The increased standard will apply until the conditions
requiring the increase no longer apply. Any change in the standards will
be contained in the Special Provisions for the crop.
(c) Selection criteria may be applied on the basis of insurance
experience of a person, insured acreage, or the combination of both.
(1) Insurance experience of a person will include:
(i) Insurance experience of the person;
(ii) Insurance experience of other insured entities in which the
person had substantial beneficial interest if the person was actively
engaged in farming of the insured crop by virtue of the person's
interest in those insured entities;
(iii) Insurance experience of a spouse and minor children if the
person is an individual and the spouse and minor children are considered
the same as the individual under Sec. 400.306.
(2) Insurance experience of insured acreage includes all insurance
experience during the base period resulting from the production of the
insured crop on the acreage.
(3) Where insurance experience is based on a combination of person
and insured acreage, the insurance experience will include the
experience of the person as defined in paragraph (b) of this section (1)
only on the specific insured acreage during the base period.
(d) Insurance experience for the crop will be adjusted, by county
and crop year, to discount the effect of indemnities caused by
widespread adverse growing conditions. Adjustments are determined as
follows:
(1) Determine the average yield for the county using the annual
county crop yields for the previous 20 crop years, unless such data is
not available;
(2) Determine the normal variability in the average yield for the
county, expressed as the standard deviation;
(3) Subtract the result of Sec. 400.303(d)(2) from
Sec. 400.303(d)(1);
(4) Divide the annual crop yield for the county for each crop year
in the NCS base period by the result of Sec. 400.303(d)(3), the result
of which may not exceed 1.0;
(5) Subtract the result of Sec. 400.303(d)(4) for each crop year
from 1.0;
[[Page 37]]
(6) Multiply the result of Sec. 400.303(d)(5) by the liability for
the crop year; and
(7) Subtract the result of Sec. 400.303(d)(6) from any indemnity for
that crop year.
(e) FCIC may substitute the crop yields of a comparable crop in
determining Sec. 400.303(d) (1) and (2), or may adjust the average yield
or the measurement of normal variability for the county crop, or any
combination thereof, to account for trends or unusual variations in
production of the county crop or if the availability of yield and loss
data for the county crop is limited. Information about how these
determinations are made is available by submitting a request to the FCIC
Regional Service Office for the producer's area. Alternate methods of
determining the effects of adverse growing conditions on insurance
experience may be implemented by FCIC if allowed in the Special
Provisions.
[55 FR 32595, Aug. 10, 1990, as amended at 62 FR 22876, Apr. 28, 1997]
Sec. 400.304 Nonstandard Classification determinations.
(a) Nonstandard Classification determinations can affect a change in
assigned yields, premium rates, or both from those otherwise prescribed
by the insurance actuarial tables.
(b) Changes of assigned yields based on insurance experience of
insured acreage (or of a person on specific insured acreage) will be
based on the simple average of available actual yields from the insured
acreage during the base period.
(c) Changes of assigned yields based on insurance experience of a
person without regard to any specific insured acreage will be determined
by an assigned yield factor calculated by multiplying excess loss cost
ratio by loss frequency and subtracting that product from 1.00 where:
(1) Excess loss cost ratio is total indemnities divided by total
liabilities for all years of insurance experience in the base period and
the result of which is then reduced by the cumulative earned premium
rate, expressed as a decimal, and
(2) Loss frequency is the number of crop years in which an indemnity
was paid divided by the number of crop years in which premiums were
earned during the base period.
(d) Changes of premium rates will be made to reflect premium rates
that would have resulted in insurance experience during the base period
with a loss ratio of 1.00 but:
(1) A higher loss ratio than 1.00 may be used for premium rate
determinations provided that the higher loss ratio is applied uniformly
in a county; and
(2) If a Nonstandard Classification change has been made to current
assigned yields, insurance experience during the base period will be
adjusted to reflect the affects of changed assigned yields before
changes of premium rates are calculated based on that experience.
(e) Once selection criteria have been met in any year, Nonstandard
Classification adjustments will be made from year to year until no
further changes are necessary in assigned yields or premium rates under
the conditions set forth in Sec. 400.304(f). In determining whether
further changes are necessary, the eligibility criteria will be
recomputed each subsequent year using the premium rates and yields which
would have been applicable had this part not been in effect.
(f) Nonstandard Classification changes will not be made that:
(1) Increase assigned yields or decrease premium rates from those
otherwise assigned by the actuarial tables, or
(2) Result in less than a 10 percent decrease in assigned yields or
less than a 10 percent increase in premium rates from those otherwise
assigned by the actuarial tables.
Sec. 400.305 Assignment of Nonstandard Classifications.
(a) Assignment of a Nonstandard Classification of assigned yields,
assigned yield factors, or premium rates shall be made on forms approved
by the Corporation and included in the actuarial tables for the county.
(b) Nonstandard classification assignment will be made each year,
for the year identified on the assignment forms, and are not subject to
change under the provisions of this subpart by
[[Page 38]]
the Corporation for that year when included in the actuarial tables for
the county, except as a result of a request for reconsideration as
provided in section 400.309, or as the result of appeals under 7 CFR
part 11.
(c) A nonstandard classification may be assigned to identified
insurable acreage; a person; or to a combination of person and
identified acreage for a crop or crop practice, type, variety, or crop
option or amendment whereby:
(1) Classifications assigned to identified insurable acreage apply
to all acres of the insured crop grown on the identified acreage;
(2) Classifications assigned to a person apply to all insurable
acres of the insured crop on which the person and any entity in which
the person has substantial beneficial interest is actively engaged in
farming; and
(3) Classifications assigned to a combination of a person and
identified insurable acreage will only apply to those acres of the
insured crop grown on the identified acreage on which the named person
is actively engaged in producing such crop.
[55 FR 32595, Aug. 10, 1990, as amended at 62 FR 22877, Apr. 28, 1997]
Sec. 400.306 Spouses and minor children.
(a) The spouse and minor children of an individual are considered to
be the same as the individual for purposes of this subpart except that:
(1) The spouse who was actively engaged in farming in a separate
farming operation prior to their marriage will be a separate person with
respect to that separate farming operation so long as that operation
remains separate and distinct from any farming operation conducted by
the other spouse;
(2) A minor child who is actively engaged in farming in a separate
farming operation will be a separate person with respect to that
separate farming operation if:
(i) The parent or other entity in which the parent has a substantial
beneficial interest does not have any interest in the minor's separate
farming operation or in any production from such operation;
(ii) The minor has established and maintains a separate household
from the parent;
(iii) The minor personally carries out the farming activities with
respect to the minor's farming operation; and
(iv) The minor establishes separate accounting and recordkeeping for
the minor's farming operation.
(b) An individual shall be considered to be a minor until the age of
18 is reached. Court proceedings conferring majority on an individual
under 18 years of age will not change such individual's status as a
minor.
Sec. 400.307 Discontinuance of participation.
If the person has discontinued participation in the crop insurance
program, the person will still be included on the NCS list in the county
until the person has discontinued participation as a policyholder or a
person with a substantial beneficial interest in a policyholder for at
least 10 consecutive crop years. The most recent nonstandard
classification assigned will be continued from year to year until
participation has been renewed for at least one crop year and at least
three years of insurance experience have occurred in the current base
period. A nonstandard classification will no longer be applicable to the
person or the person on identified acreage if the Corporation determines
the person is deceased.
[62 FR 22877, Apr. 28, 1997]
Sec. 400.308 Notice of Nonstandard Classification.
(a) The Corporation will give written notice to all persons to whom
a Nonstandard Classification will be assigned. The notice will give the
Nonstandard Classification and the person's rights and responsibilities
according to this subpart.
(b) The person, upon receiving notice from the Corporation, will be
responsible for giving notice of the Nonstandard Classification to any
other person with an insurable interest affected by the classification.
The person will give notice to any other affected person:
(1) Prior to the sales closing date if the other affected person has
an established insurable interest at the time the classified person is
notified by the Corporation; or
[[Page 39]]
(2) Prior to the Classified person's establishing an insurable
interest of another person that will be affected by the classification.
Sec. 400.309 Requests for reconsideration.
(a) Any person to be assigned a nonstandard classification under
this subpart will be notified of and allowed not less that 30 days from
the date notice is received to request reconsideration before the
nonstandard classification becomes effective. The request will be
considered to have been made when received, in writing, by the
Corporation.
(b) Upon receipt of a timely request for reconsideration from the
person to whom the classification will be assigned, the Corporation
will:
(1) Review all information supplied by, and respond to all questions
raised by the individual, or
(2) In the absence of information and questions, review insurance
experience and determinations for compliance with this subpart and
report review results to the individual requesting reconsideration.
(c) Upon review of a request for reconsideration, the classification
to be assigned will be corrected for:
(1) Errors and omissions in insurance experience;
(2) Incorrect calculations under procedures in this subpart, and
(3) Typographical errors.
(d) If the review finds no cause for change, the classification will
be assigned and placed on file in the actuarial tables for the county.
(e) Any person not satisfied by a determination of the Corporation
upon reconsideration may further appeal under the provisions of 7 CFR
part 11.
[55 FR 32595, Aug. 10, 1990, as amended at 62 FR 22877, Apr. 28, 1997]
Subpart P_Preemption of State Laws and Regulations
Authority: 7 U.S.C. 1506, 1516.
Source: 55 FR 23069, June 6, 1990, unless otherwise noted.
Sec. 400.351 Basis and applicability.
The regulations contained in this subpart are issued pursuant to the
Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.) (the
Act), to prescribe the procedures for Federal preemption of State laws
and regulations not consistent with the purpose, intent, or authority of
the Act. These regulations are applicable to all policies of insurance,
insured or reinsured by the Corporation, contracts, agreements, or
actions authorized by the Act and entered into or issued by FCIC.
Sec. 400.352 State and local laws and regulations preempted.
(a) No State or local governmental body or non-governmental body
shall have the authority to promulgate rules or regulations, pass laws,
or issue policies or decisions that directly or indirectly affect or
govern agreements, contracts, or actions authorized by this part unless
such authority is specifically authorized by this part or by the
Corporation.
(b) The following is a non-inclusive list of examples of actions
that State or local governmental entities or non-governmental entities
are specifically prohibited from taking against the Corporation or any
party that is acting pursuant to this part. Such entities may not:
(1) Impose or enforce liens, garnishments, or other similar actions
against proceeds obtained, or payments issued in accordance with the
Federal Crop Insurance Act, these regulations, or contracts or
agreements entered into pursuant to these regulations;
(2) Tax premiums associated with policies issued hereunder;
(3) Exercise approval authority over policies issued;
(4) Levy fines, judgments, punitive damages, compensatory damages,
or judgments for attorney fees or other costs against companies,
employees of companies including agents and loss adjustors, or Federal
employees arising out of actions or inactions on the part of such
individuals and entities authorized or required under the Federal Crop
Insurance Act, the regulations, any contract or agreement authorized by
the Federal Crop Insurance Act or by regulations, or procedures issued
by the Corporation (Nothing herein precludes such damages being imposed
against the company if a determination is obtained from FCIC that the
[[Page 40]]
company, its employee, agent or loss adjuster failed to comply with the
terms of the policy or procedures issued by FCIC and such failure
resulted in the insured receiving a payment in an amount that is less
than the amount to which the insured was entitled); or
(5) Assess any tax, fee, or amount for the funding or maintenance of
any State or local insolvency pool or other similar fund.
The preceding list does not limit the scope or meaning of paragraph
(a) of this section.
[55 FR 23069, June 6, 1990, as amended at 69 FR 48730, Aug. 10, 2004]
Subpart Q_General Administrative Regulations; Collection and Storage of
Social Security Account Numbers and Employer Identification Numbers
Authority: 7 U.S.C. 1506(l), 1506(p).
Source: 57 FR 46297, Oct. 8, 1992, unless otherwise noted.
Sec. 400.401 Basis and purpose and applicability.
(a) The regulations contained in this subpart are issued pursuant to
the Act to prescribe procedures for the collection, use, and
confidentiality of Social Security Numbers (SSN) and Employer
Identification Numbers (EIN) and related records.
(b) These regulations are applicable to:
(1) All holders of crop insurance policies issued by FCIC under the
Act and sold and serviced by local FSA offices.
(2) All holders of crop insurance policies sold by insurance
providers and all insurance providers, their contractors and
subcontractors, including past and present officers and employees of
such companies, their contractors and subcontractors.
(3) Any agent, general agent, or company, or any past or present
officer, employee, contractor or subcontractor of such agent, general
agent, or company under contract to FCIC or an insurance provider for
loss adjustment or any other purpose related to the crop insurance
programs insured or reinsured by FCIC; and
(4) All past and present officers, employees, elected officials,
contractors, and subcontractors of FCIC and FSA.
[57 FR 46297, Oct. 8, 1992, as amended at 62 FR 28608, May 27, 1997]
Sec. 400.402 Definitions.
Act. The Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et
seq.).
Applicant. A person who has submitted an application for crop
insurance coverage under the Act.
Authorized person. Any current or past officer, employee, elected
official, general agent, contractor, or loss adjuster of FCIC, the
insurance provider, or any other government agency whose duties require
access to administer the Act.
Disposition of records. The act of removing and disposing of records
containing a participant's SSN or EIN by FCIC, or the insurance
provider.
FCIC. The Federal Crop Insurance Corporation of the United States
Department of Agriculture or any successor agency.
FSA. The Farm Service Agency of the United States Department of
Agriculture, or a successor agency.
Insurance provider. A private insurance company approved by FCIC, or
a local FSA office providing crop insurance coverage to producers
participating in any program administered under the Act.
Past officers and employees. Any officer or employee of FCIC or the
insurance provider who leaves the employ of FCIC or the insurance
provider subsequent to the effective date of this rule.
Person. An individual, partnership, association, corporation,
estate, trust, or other legal entity, and whenever applicable, a state,
political subdivision, or an agency of a state.
Policyholder. An applicant whose application for insurance under the
crop insurance program has been accepted by FCIC or the insurance
provider.
Retrieval of records. Retrieval of a person's records by that
person's SSN or EIN, or name.
Safeguards. Methods of security to be employed by FCIC or the
insurance provider to protect a participant's SSN or EIN from unlawful
disclosure and access.
[[Page 41]]
Storage. The secured storing of records kept by FCIC or the
insurance provider on computer disks or drives, computer printouts,
magnetic tape, index cards, microfiche, microfilm, etc.
Substantial beneficial interest. Any person having an interest of at
least 10 percent in the applicant or policyholder.
System of records. Records established and maintained by FCIC or the
insurance provider containing SSN or EIN data, name, address, city and
State, applicable policy numbers, and other information related to
multiple peril crop insurance policies as required by FCIC, from which
information is retrieved by a personal identifier including, but not
limited to the SSN, EIN, or name.
[62 FR 28608, May 27, 1997]
Sec. 400.403 Required system of records.
Insurance providers are required to implement a system of records
for obtaining, using, and storing documents containing SSN or EIN data
before they accept or receive any applications for insurance. This data
should include: name; address; city and state; SSN or EIN; and policy
numbers which have been used by FCIC or the insurance provider.
[62 FR 28608, May 27, 1997]
Sec. 400.404 Policyholder responsibilities.
(a) The policyholder or applicant for crop insurance must provide a
correct SSN or EIN to FCIC or the insurance provider to be eligible for
insurance. The SSN or EIN will be used by FCIC and the insurance
provider in:
(1) Determining the correct parties to the agreement or contract;
(2) Collecting premiums or other amounts due FCIC or the insurance
provider;
(3) Determining the amount of indemnities;
(4) Establishing actuarial data on an individual policyholder basis;
and
(5) Determining eligibility for crop insurance program participation
or other United States Department of Agriculture benefits.
(b) If the policyholder or applicant for crop insurance does not
provide the correct SSN or EIN on the application and other forms where
such SSN or EIN is required, FCIC or the reinsured company shall reject
the application.
(c) The policyholder or applicant is required to provide to FCIC or
the insurance provider, the name and SSN or EIN of any individual or
other entity:
(1) holding or acquiring a substantial beneficial interest in such
policyholder or applicant; or
(2) having any interest in the policyholder or applicant and
receiving separate benefits under another United States Department of
Agriculture program as a direct result of such interest.
(d) If a policyholder or applicant is using an EIN for a policy in
an individual person's name, the SSN of the policyholder or applicant
must also be provided.
[62 FR 28608, May 27, 1997]
Sec. 400.405 Agent and loss adjuster responsibilities.
(a) The agent or loss adjuster shall provide his or her correct SSN
to FCIC or the insurance provider, whichever is applicable, to be
eligible to participate in the crop insurance program. The SSN will be
used by FCIC and the insurance provider in establishing a database for
the purposes of:
(1) Identifying agents and loss adjusters on an individual basis;
(2) Evaluating agents and loss adjusters to determine level of
performance;
(3) Determining eligibility for program participation; and
(4) Collection of any amount which may be owed by the agent and loss
adjuster to the United States.
(b) If the loss adjuster contracting with FCIC to participate in the
crop insurance program does not provide his or her correct SSN on forms
or contracts where such SSN is required, the loss adjuster's contract
will be cancelled effective on the date of refusal and the loss adjuster
will be subject to suspension and debarment in accordance with the
suspension and debarment regulations of the United States Department of
Agriculture.
(c) If the agent or loss adjuster contracting with an insurance
provider, who is also a private insurance company, to participate in the
crop insurance program does not provide his or her correct SSN on forms
or contracts
[[Page 42]]
where such SSN is required, the premium subsidy payable for
administrative and operating expenses under the Standard Reinsurance
Agreement, or any other reinsurance agreement, will not be paid on those
policies lacking the correct SSN.
[62 FR 28609, May 27, 1997]
Sec. 400.406 Insurance provider responsibilities.
The insurance provider is required to collect and record the SSN or
EIN on each application or on any other form required by FCIC.
[62 FR 28609, May 27, 1997]
Sec. 400.407 Restricted access.
The Manager, other officer, or employee of FCIC or an authorized
person may have access to the SSNs and EINs obtained pursuant to this
subpart, only for the purpose of establishing and maintaining a system
of records necessary for the effective administration of the Act.
[62 FR 28609, May 27, 1997]
Sec. 400.408 Safeguards and storage.
Records must be maintained in secured storage with proper safeguards
sufficient to enforce the restricted access provisions of this subpart.
[62 FR 28609, May 27, 1997]
Sec. 400.409 Unauthorized disclosure.
Anyone having access to the records identifying a participant's SSN
or EIN will abide by the provisions of section 205(c)(2)(C) of the
Social Security Act (42 U.S.C. 405(c)(2)(C), and section 6109(f),
Internal Revenue Code of 1986 (26 U.S.C. 6109(f) and the Privacy Act of
1974 (5 U.S.C. 552a). All records are confidential, and are not to be
disclosed to unauthorized personnel.
[57 FR 46297, Oct. 8, 1992. Redesignated at 62 FR 28608, May 27, 1997]
Sec. 400.410 Penalties.
Unauthorized disclosure of SSN's or EIN's by any person may subject
that person, and the person soliciting the unauthorized disclosure, to
civil or criminal sanctions imposed under various Federal statutes,
including 26 U.S.C. 7613, 5 U.S.C. 552a, and 42 U.S.C. 408.
[57 FR 46297, Oct. 8, 1992. Redesignated at 62 FR 28608, May 27, 1997]
Sec. 400.411 Obtaining personal records.
Policyholders, agents, and loss adjusters in the crop insurance
program will be able to review and correct their records as provided by
the Privacy Act. Records may be requested by:
(a) Mailing a signed written request to the headquarters office of
FCIC; the FCIC Regional Service Office, or the insurance provider; or
(b) Making a personal visit to the above mentioned establishments
and showing valid identification.
[57 FR 46297, Oct. 8, 1992. Redesignated and amended at 62 FR 28608,
28609, May 27, 1997]
Sec. 400.412 Record retention.
(a) FCIC or the insurance provider will retain all records of
policyholders for a period of not less than 3 years from the date of
final action on a policy for the crop year, unless further maintenance
of specific records is requested by FCIC. Final actions on insurance
policies include conclusion of insurance events, such as the latest of
termination of the policy, completion of loss adjustment, or
satisfaction of claim.
(b) The statute of limitations for FCIC contract claims may permit
litigation to be instituted after the period of record retention.
Destruction of records prior to the expiration of the statute of
limitations will not provide a defense to any action by FCIC against any
private insurance company.
[62 FR 28609, May 27, 1997]
Sec. 400.413 [Reserved]
Subpart R_Administrative Remedies for Non-Compliance
Authority: 7 U.S.C. 1506(l), 1506(o), and 7 U.S.C. 1515(h)
Source: 58 FR 53110, Oct. 14, 1993, unless otherwise noted.
[[Page 43]]
Sec. 400.451 General.
(a) FCIC has implemented a system of administrative remedies in its
efforts to ensure program compliance and prevent fraud, waste, and abuse
within the Federal crop insurance program. Such remedies include civil
fines and disqualifications under the authority of section 515(h) of the
Act (7 U.S.C. 1515(h)); government-wide suspension and debarment under
the authority of 48 CFR part 9, 48 CFR part 409, and 7 CFR part 3017;
and civil fines and assessments under the authority of the Program Fraud
Civil Remedies Act (31 U.S.C. 3801-3812).
(b) The provisions of this subpart apply to all participants in the
Federal crop insurance program, including but not limited to producers,
agents, loss adjusters, approved insurance providers and their employees
or contractors, as well as any other persons who may provide information
to a program participant and meet the elements for imposition of one or
more administrative remedies contained in this subpart.
(c) Any remedial action taken pursuant to this subpart is in
addition to any other actions specifically provided in applicable crop
insurance policies, contracts, reinsurance agreements, or other
applicable statutes and regulations.
(d) This rule is applicable to any violation occurring on and after
January 20, 2009.
(e) The purpose of the remedial actions authorized in this subpart
are for the protection of the public interest from potential harm from
persons who have abused the Federal crop insurance program, maintaining
program integrity, and fostering public confidence in the program.
[73 FR 76887, Dec. 18, 2008]
Sec. 400.452 Definitions.
For purposes of this subpart:
Act. Has the same meaning as the term in section 1 of the Common
Crop Insurance Policy Basic Provisions (7 CFR 457.8).
Affiliate. Persons are affiliates of each other if, directly or
indirectly, either one controls or has the power to control the other,
or, a third person controls or has the power to control both. Indicia of
control include, but are not limited to: interlocking management or
ownership, identity of interests among family members, shared facilities
and equipment, common use of employees, or a business entity organized
following the disqualification, suspension or debarment of a person
which has the same or similar management, ownership, or principal
employees as the disqualified, suspended, debarred, ineligible, or
voluntarily excluded person.
Agency. The person authorized by an approved insurance provider, or
its designee, to sell and service a crop insurance policy under the
Federal crop insurance program.
Agent. Has the same meaning as the term in 7 CFR 400.701.
Agricultural commodity. Has the same meaning as the term in section
1 of the Common Crop Insurance Policy Basic Provisions (7 CFR 457.8).
Approved insurance provider. Has the same meaning as the term in 7
CFR 400.701.
Benefit. Any advantage, preference, privilege, or favorable
consideration a person receives from another person in exchange for
certain acts or considerations. A benefit may be monetary or non-
monetary.
FCIC. Has the same meaning as the term in 7 CFR 400.701.
Key employee. Any person with primary management or supervisory
responsibilities or who has the ability to direct activities or make
decisions regarding the crop insurance program.
Knows or has reason to know. When a person, with respect to a claim
or statement:
(1)(i) Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
(ii) Acts in deliberate ignorance of the truth or falsity of the
claim or statement; or
(iii) Acts in reckless disregard of the truth or falsity of the
claim or statement; and
(2) No proof of specific intent is required.
Managing general agent. Has the same meaning as the term in 7 CFR
400.701.
Material. A violation that causes or has the potential to cause a
monetary loss to the crop insurance program or
[[Page 44]]
it adversely affects program integrity, including but not limited to
potential harm to the program's reputation or allowing persons to be
eligible for benefits they would not otherwise be entitled.
Participant. Any person who obtains any benefit that is derived in
whole or in part from funds paid by FCIC to the approved insurance
provider or premium paid by the producer. Participants include but are
not limited to producers, agents, loss adjusters, agencies, managing
general agencies, approved insurance providers, and any person
associated with the approved insurance provider through employment,
contract, or agreement.
Person. An individual, partnership, association, corporation,
estate, trust or other legal entity, any affiliate or principal thereof,
and whenever applicable, a State or political subdivision or agency of a
State. ``Person'' does not include the United States Government or any
of its agencies.
Policy. Has the same meaning as the term in section 1 of the Common
Crop Insurance Policy Basic Provisions (7 CFR 457.8).
Preponderance of the evidence. Proof by information that, when
compared with the opposing evidence, leads to the conclusion that the
fact at issue is probably more true than not.
Principal. A person who is an officer, director, owner, partner, key
employee, or other person within an entity with primary management or
supervisory responsibilities over the entity's federal crop insurance
activities; or a person who has a critical influence on or substantive
control over the federal crop insurance activities of the entity.
Producer. A person engaged in producing an agricultural commodity
for a share of the insured crop, or the proceeds thereof.
Provides. Means to make available, supply or furnish with. The term
includes any transmission of the information from one person to another
person. For example, a producer writes information on forms and gives it
to the agent and the agent transmits that information to the insurance
provider. In both instances, the information is ``provided'' for the
purpose of this rule.
Reinsurance agreement. Has the same meaning as the term in 7 CFR
400.161, except that such agreement is only between FCIC and the
approved insurance provider.
Requirement of FCIC. Includes, but is not limited to, formal
communications, such as a regulation, procedure, policy provision,
reinsurance agreement, memorandum, bulletin, handbook, manual, finding,
directive, or letter, signed or issued by a person authorized by FCIC to
provide such communication on behalf of FCIC, that requires a particular
participant or group of participants to take a specific action or to
cease and desist from a taking a specific action (e-mails will not be
considered formal communications although they may be used to transmit a
formal communication). Formal communications that contain a remedy in
such communication in the event of a violation of its terms and
conditions will not be considered a requirement of FCIC unless such
violation arises to the level where remedial action is appropriate. (For
example, multiple violations of the same provision in separate policies
or procedures or multiple violations of different provisions in the same
policy or procedure.)
Violation. Each act or omission by a person that satisfies all
required elements for the imposition of a disqualification or a civil
fine contained in Sec. 400.454.
Willful and intentional. To provide false or inaccurate information
with the knowledge that the information is false or inaccurate at the
time the information is provided; the failure to correct the false or
inaccurate information when its nature becomes known to the person who
made it; or to commit an act or omission with the knowledge that the act
or omission is not in compliance with a ``requirement of FCIC'' at the
time the act or omission occurred. No showing of malicious intent is
necessary.
[73 FR 76887, Dec. 18, 2008]
Sec. 400.453 Exhaustion of administrative remedies.
All administrative remedies contained herein or incorporated herein
by reference must be exhausted before Judicial Review in the United
States
[[Page 45]]
Courts may be sought, unless review is specifically required by statute.
Sec. 400.454 Disqualification and civil fines.
(a) Before any disqualification or civil fine is imposed, FCIC will
provide the affected participants and other persons with notice and an
opportunity for a hearing on the record in accordance with 7 CFR part 1,
subpart H.
(1) Proceedings will be initiated when the Manager of FCIC files a
complaint with the Hearing Clerk, United States Department of
Agriculture.
(2) Disqualifications become effective:
(i) On the date specified in the order issued by the Administrative
Law Judge or Judicial Officer, as applicable, or if no date is specified
in the order, the date that the order was issued.
(ii) With respect to a settlement agreement with FCIC, the date
contained in the settlement agreement or, if no date is specified, the
date that such agreement is executed by FCIC.
(3) Disqualification and civil fines may only be imposed if a
preponderance of the evidence shows that the participant or other person
has met the standards contained in Sec. 400.454(b). FCIC has the burden
of proving that the standards in Sec. 400.454(b) have been met.
(4) Disqualification and civil fines may be imposed regardless of
whether FCIC or the approved insurance provider has suffered any
monetary losses. However, if there is no monetary loss, disqualification
will only be imposed if the violation is material in accordance with
Sec. 400.454(c).
(b) Disqualification and civil fines may be imposed on any
participant or person who willfully and intentionally:
(1) Provides any false or inaccurate information to FCIC or to any
approved insurance provider with respect to a policy or plan of
insurance authorized under the Act either through action or omission to
act when there is knowledge that false or inaccurate information is or
will be provided; or
(2) Fails to comply with a requirement of FCIC.
(c) When imposing any disqualification or civil fine:
(1) The gravity of the violation must be considered when
determining:
(i) Whether to disqualify a participant or other person;
(ii) The amount of time that a participant or other person should be
disqualified;
(iii) Whether to impose a civil fine; and
(iv) The amount of a civil fine that should be imposed.
(2) The gravity of the violation includes consideration of whether
the violation was material and if it was material:
(i) The number or frequency of incidents or duration of the
violation;
(ii) Whether there is a pattern or prior history of violation;
(iii) Whether and to what extent the person planned, initiated, or
carried out the violation;
(iv) Whether the person has accepted responsibility for the
violation and recognizes the seriousness of the misconduct that led to
the cause for disqualification or civil fine;
(v) Whether the person has paid all civil and administrative
liabilities for the violation;
(vi) Whether the person has cooperated fully with FCIC (In
determining the extent of cooperation, FCIC may consider when the
cooperation began and whether the person disclosed all pertinent
information known to that person at the time);
(vii) Whether the violation was pervasive within the organization;
(viii) The kind of positions held by the persons involved in the
violation;
(ix) Whether the organization took prompt, appropriate corrective
action or remedial measures, such as establishing ethics training and
implementing programs to prevent recurrence;
(x) Whether the principals of the organization tolerated the
offense;
(xi) Whether the person brought the violation to the attention of
FCIC in a timely manner;
(xii) Whether the organization had effective standards of conduct
and internal control systems in place at the time the violation
occurred;
(xiii) Whether the organization has taken appropriate disciplinary
action
[[Page 46]]
against the persons responsible for the violation;
(xiv) Whether the organization had adequate time to eliminate the
violation that led to the cause for disqualification or civil fine;
(xv) Other factors that are appropriate to the circumstances of a
particular case.
(3) The maximum term of disqualification and civil fines will be
imposed against:
(i) Participants and other persons, except insurance providers who:
(A) Commit multiple violations in the same crop year or over several
crop years; or
(B) Commit a single violation but such violation results in an
overpayment of more than $100,000;
(ii) Approved insurance providers who:
(A) Commit a single violation resulting in an overpayment in excess
of $100,000; and
(B) Commit multiple acts of violations resulting in an overpayment
in excess of $500,000; and
(iii) Any participant or person who commits such other action or
omission of so serious a nature that imposition of the maximum is
appropriate.
(d) With respect to the imputing of conduct:
(1) The conduct of any officer, director, shareholder, partner,
employee, or other individual associated with an organization, in
violation of Sec. 400.454(b) may be imputed to that organization when
such conduct occurred in connection with the individual's performance of
duties for or on behalf of that organization, or with the organization's
knowledge, approval or acquiescence. The organization's acceptance of
the benefits derived from the violation is evidence of knowledge,
approval or acquiescence.
(2) The conduct of any organization in violation of Sec. 400.454(b)
may be imputed to an individual, or from one individual to another
individual, if the individual to whom the improper conduct is imputed
either participated in, knows, or had reason to know of such conduct.
(3) The conduct of one organization in violation of Sec. 400.454(b)
may be imputed to another organization when such conduct occurred in
connection with a partnership, joint venture, joint application,
association or similar arrangement, or when the organization to whom the
improper conduct is imputed has the power to direct, manage, control or
influence the activities of the organization responsible for the
improper conduct. Acceptance of the benefits derived from the conduct is
evidence of knowledge, approval or acquiescence.
(4) If such conduct is imputed, the person to whom the conduct is
imputed to may be subject to the same disqualification and civil fines
as the person from whom the conduct is imputed. The factors contained in
Sec. 400.454(c)(2) will be taken into consideration with respect to the
person to whom the conduct is being imputed.
(e) With respect to disqualifications:
(1) If a person is disqualified and that person is a:
(i) Producer, the producer will be precluded from receiving any
monetary or non-monetary benefit provided under all of the following
authorities, or their successors:
(A) The Act;
(B) The Farm Security and Rural Investment Act of 2002 (7 U.S.C.
7333 et seq.) or any successor statute;
(C) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.) or any
successor statute;
(D) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et
seq.) or any successor statute;
(E) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.)
or any successor statute;
(F) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et
seq.) or any successor statute;
(G) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921,
et seq.) or any successor statute; and
(H) Any federal law that provides assistance to the producer of an
agricultural commodity affected by a crop loss or decline in the prices
of agricultural commodities.
(ii) Participant or other person, other than a producer, such
participant or person will be precluded from participating in any way in
the Federal crop insurance program and receiving any
[[Page 47]]
monetary or non-monetary benefit under the Act.
(2) With respect to the term of disqualification:
(i) The minimum term will be not less than one year from the
effective date determined in Sec. 400.454(a)(2);
(ii) The maximum term will be not more than five years from the
effective date determined in Sec. 400.454(a)(2); and
(iii) Disqualification is to be imposed only in one-year increments,
up to the maximum five years.
(3) Once a disqualification becomes final, the name, address, and
other identifying information of the participant or other person shall
be entered into the Ineligible Tracking System (ITS) maintained by FCIC
in accordance with 7 CFR part 400, subpart U, and this information along
with a list of the programs that the person is disqualified from shall
be promptly reported to the General Services Administration for listing
in the Excluded Parties List System (EPLS) in accordance with 7 CFR part
3017, subpart E.
(i) It is a participant's responsibility to periodically review the
ITS and EPLS to determine those participants and other persons who have
been disqualified.
(ii) No participant may conduct business with a disqualified
participant or other person if such business directly relates to the
Federal crop insurance program, or if, through the business
relationship, the disqualified participant or other person will derive
any monetary or non-monetary benefit from a program administered under
the Act.
(iii) If a participant or other person does business with a
disqualified participant or other person, such participant may be
subject to disqualification under this section.
(iv) Continuing to make payments to a disqualified person to fulfill
pre-existing contractual or statutory obligations after the business
relationship is terminated will not be considered as doing business with
a disqualified person unless such payment is used as a means to
circumvent the disqualification process.
(f) With respect to civil fines:
(1) A civil fine may be imposed for each violation.
(2) The amount of such civil fine shall not exceed the greater of:
(i) The amount of monetary gain, or value of the benefit, obtained
as a result of the false or inaccurate information provided, or the
amount obtained as a result of noncompliance with a requirement of FCIC;
or
(ii) $10,000.
(3) Civil fines are debts owed to FCIC.
(i) A civil fine that is either imposed under with this subpart, or
agreed to through an executed settlement agreement with FCIC, must be
paid by the specified due date. If the due date is not specified in the
order issued by the Administrative Law Judge or Judicial Officer, as
applicable, or the settlement agreement, it shall be 30 days after the
date the order was issued or the settlement agreement signed by FCIC.
(ii) Any civil fine imposed under this section is in addition to any
debt that may be owed to FCIC or to any approved insurance provider,
such an overpaid indemnity, underpaid premium, or other amounts owed.
(iii) FCIC, in its sole discretion, may reduce or otherwise settle
any civil fine imposed under this section whenever it considers it
appropriate or in the best interest of the USDA.
(4) The ineligibility procedures established in 7 CFR part 400,
subpart U are not applicable to ineligibility determinations made under
this section for nonpayment of civil fines.
(5) If a civil fine has been imposed and the person has not made
timely payment for the total amount due, the person is ineligible to
participate in the Federal crop insurance program until the amount due
is paid in full.
(g) With respect to any person that has been disqualified or is
otherwise ineligible due to non-payment of civil fines in accordance
with Sec. 400.454(f):
(1) With respect to producers:
(i) All existing insurance policies will automatically terminate as
of the next termination date that occurs during the period of
disqualification and while the civil fine remains unpaid;
(ii) No new policies can be purchased, and no current policies can
be renewed, between the date that the producer is disqualified and the
date that the disqualification ends; and
[[Page 48]]
(iii) New application for insurance cannot be made for any
agricultural commodity until the next sales closing date after the
period of disqualification has ended and the civil fine is paid in full.
(2) With respect to all other persons:
(i) Such person may not be involved in any function related to the
Federal crop insurance program during the disqualification or
ineligibility period (including the sale, service, adjustment, data
transmission or storage, reinsurance, etc. of any crop insurance policy)
or receive any monetary or non-monetary benefit from a program
administered under the Act.
(ii) If the person is an agent or insurance agency, the producers
may cancel their policies sold and serviced by the disqualified agent
and rewrite the policy with another agent. If the producer does not
cancel and rewrite the policy with another agent, the approved insurance
provider must assign the policies to a different agent or agency to
service during the period of disqualification or ineligibility. Policies
that have been assigned to another agent or agency by the insurance
provider will revert back to the disqualified agent or agency after the
period of disqualification has ended provided all civil fines are paid
in full and the producer does not cancel and rewrite the policy with a
different agent or agency;
(iii) If the person is an approved insurance provider, the approved
insurance provider shall not sell, or authorize to be sold, any new
policies or may not renew, or authorize the renewal of, existing
policies, as determined by FCIC, during the period of disqualification
or ineligibility. Nothing in this provision affects the approved
insurance provider's responsibilities with respect to the service of
existing policies.
(h) Imposition of disqualification or a civil fine under this
section is in addition to any other administrative or legal remedies
available under this section or other applicable law including, but not
limited to, debarment and suspension.
[73 FR 76888, Dec. 18, 2008]
Sec. 400.455 Governmentwide debarment and suspension (procurement).
(a) For all transactions undertaken pursuant to the Federal
Acquisition Regulations, FCIC will proceed under 48 CFR part 9, subpart
9.4 or 48 CFR part 409 when taking action to suspend or debar persons
involved in such transactions, except that the authority to suspend or
debar under these provisions will be reserved to the Manager of FCIC, or
the Manager's designee.
(b) Any person suspended or debarred under the provisions of 48 CFR
part 9, subpart 9.4 or 48 CFR part 409 will not be eligible to contract
with FCIC or the Risk Management Agency and will not be eligible to
participate in or receive any benefit from any program under the Act
during the period of ineligibility. This includes, but is not limited
to, being employed by or contracting with any approved insurance
provider that sells, services, or adjusts policies offered under the
authority of the Act. FCIC may waive this provision if it is satisfied
that the person who employs the suspended or debarred person has taken
sufficient action to ensure that the suspended or debarred person will
not be involved, in any way, with FCIC or receive any benefit from any
program under the Act.
[73 FR 76890, Dec. 18, 2008]
Sec. 400.456 Governmentwide debarment and suspension (nonprocurement).
(a) FCIC will proceed under 7 CFR part 3017 when taking action to
suspend or debar persons involved in non-procurement transactions.
(b) Any person suspended or debarred under the provisions of 7 CFR
part 3017, will not be eligible to contract with FCIC or the Risk
Management Agency and will not be eligible to participate in or receive
any benefit from any program under the Act during the period of
ineligibility. This includes, but is not limited to, being employed by
or contracting with any approved insurance provider, or its contractors,
that sell, service, or adjust policies either insured or reinsured by
FCIC. FCIC
[[Page 49]]
may waive this provision if it is satisfied that the approved insurance
provider or contractors have taken sufficient action to ensure that the
suspended or debarred person will not be involved in any way with the
Federal crop insurance program or receive any benefit from any program
under the Act.
(c) The Manager, FCIC, shall be the debarring and suspending
official for all debarment or suspension proceedings undertaken by FCIC
under the provisions of 7 CFR part 3017.
[73 FR 76890, Dec. 18, 2008]
Sec. 400.457 Program Fraud Civil Remedies Act.
(a) This section is in accordance with the Program Fraud Civil
Remedies Act of 1986 (31 U.S.C. 3801-U.S.C. 3831) which provides for
civil penalties and assessments against persons who make, submit, or
present, or cause to be made, submitted, or presented, false,
fictitious, or fraudulent claims or written statements to Federal
authorities or to their agents.
(b) Proceedings under this section will be in accordance with
subpart L of 7 CFR part 1, ``Procedures Related to Administrative
Hearings Under the Program Fraud Civil Remedies Act of 1986.''
(c) The Director, Appeals and Litigation Staff, FCIC, or the
Director's designee, is authorized to serve as Agency Fraud Claims
Officer for the purpose of implementing the requirements of this
section.
(d) Civil penalties and assessments imposed pursuant to this section
are in addition to any other remedies that may be prescribed by law or
imposed under this subpart.
[58 FR 53110, Oct. 14, 1993, as amended at 73 FR 76891, Dec. 18, 2008]
Sec. 400.458 Scheme or device.
(a) In addition to the penalties specified in this part, if a person
has knowingly adopted a material scheme or device to obtain catastrophic
risk protection, other plans of insurance coverage, or noninsured
assistance benefits to which the person is not entitled, has evaded the
provisions of the Federal Crop Insurance Act, or has acted with the
purpose of evading the provisions of the Federal Crop Insurance Act, the
person shall be ineligible to receive any and all benefits applicable to
any crop year for which the scheme or device was adopted.
(b) A scheme or device may include, but is not limited to, creating
or using another entity, or concealing or providing false information
with respect to your interest in the policyholder, to evade:
(1) Suspension, debarment, or disqualification from participation in
the program; or
(2) Ineligibility for a delinquent debt owed to FCIC or the
insurance company.
[60 FR 37324, July 20, 1995, as amended at 73 FR 76891, Dec. 18, 2008]
Sec. Sec. 400.459-400.500 [Reserved]
Subpart S [Reserved]
Subpart T_Federal Crop Insurance Reform, Insurance Implementation
Authority: 7 U.S.C. 1506(l) and 1506(p).
Source: 61 FR 42975, Aug. 20, 1996, unless otherwise noted.
Sec. 400.650 Purpose.
The Reform Act requires FCIC to implement a crop insurance program
that offers several levels of insurance coverage for producers. These
levels of protection include catastrophic risk protection, and
additional coverage insurance. This subpart provides notice of the
availability of these crop insurance options and establishes provisions
and requirements for implementation of the insurance provisions of the
Reform Act.
[61 FR 42975, Aug. 20, 1996, as amended at 68 FR 37721, June 25, 2003]
Sec. 400.651 Definitions.
Act. The Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et
seq.).
Additional coverage. A level of coverage greater than catastrophic
risk protection.
Administrative fee. An amount the producer must pay for
catastrophic,
[[Page 50]]
and additional coverage each crop year on a per crop and county basis as
specified in the Basic Provisions or the Catastrophic Risk Protection
Endorsement.
Approved insurance provider. A private insurance company, including
its agents, that has been approved and reinsured by FCIC to provide
insurance coverage to producers participating in the Federal crop
insurance program.
Approved yield. The actual production history (APH) yield,
calculated and approved by the verifier, used to determine the
production guarantee by summing the yearly actual, assigned, adjusted or
unadjusted transitional yields and dividing the sum by the number of
yields contained in the database, which will always contain at least
four yields. The database may contain up to 10 consecutive crop years of
actual or assigned yields. The approved yield may have yield adjustments
elected under applicable policy provisions, or other limitations
according to FCIC approved procedures applied when calculating the
approved yield.
Catastrophic risk protection. The minimum level of coverage offered
by FCIC which is required before a person may qualify for certain other
USDA program benefits unless the producer executes a waiver of any
eligibility for emergency crop loss assistance in connection with the
crop. For the 1995 through 1998 crop years, such coverage will offer
protection equal to fifty percent (50%) of the approved yield
indemnified at sixty percent (60%) of the expected market price, or a
comparable coverage as established by FCIC. For the 1999 and subsequent
crop years, such coverage will offer protection equal to fifty percent
(50%) of the approved yield indemnified at fifty-five percent (55%) of
the expected market price, or a comparable coverage as established by
FCIC.
Catastrophic Risk Protection Endorsement. The part of the crop
insurance policy that contains provisions of insurance that are specific
to catastrophic risk protection.
Crop of economic significance. A crop that has either contributed in
the previous crop year, or is expected to contribute in the current crop
year, ten percent (10%) or more of the total expected value of the
producer's share of all crops grown in the county. However, a crop will
not be considered a crop of economic significance if the expected
liability under the Catastrophic Risk Protection Endorsement is equal to
or less than the administrative fee required for the crop.
Expected market price. (price election) The price per unit of
production (or other basis as determined by FCIC) anticipated during the
period the insured crop normally is marketed by producers. This price
will be set by FCIC before the sales closing date for the crop. The
expected market price may be less than the actual price paid by buyers
if such price typically includes remuneration for significant amounts of
post-production expenses such as conditioning, culling, sorting,
packing, etc.
FCIC. The Federal Crop Insurance Corporation, a wholly owned
Government Corporation within USDA.
FSA. The Farm Service Agency, an agency of the United States
Department of Agriculture or any successor agency.
Insurable interest. The value of the producer's interest in the crop
that is at risk from an insurable cause of loss during the insurance
period. The maximum indemnity payable to the producer may not exceed the
indemnity due on the producer's insurable interest at the time of loss.
Intended crop. A crop stated on the application as submitted on or
before the sales closing date for the crop which the producer intended
to plant in the crop year for which application is made.
Linkage requirement. The legal requirement that a producer must
obtain at least catastrophic risk protection coverage for any crop of
economic significance as a condition of receiving benefits for such crop
from certain other USDA programs in accordance with Sec. 400.655, unless
the producer executes a waiver of any eligibility for emergency crop
loss assistance in connection with the crop.
Person. An individual, partnership, association, corporation,
estate, trust, or other legal entity, and wherever applicable, a state
or a political subdivision or agency of a state.
[[Page 51]]
Reform Act. The Federal Crop Insurance Reform Act of 1994, Public
Law 103-354.
Secretary. The Secretary of the United States Department of
Agriculture.
Substitute crop. An alternative crop whose sales closing date has
passed and that is planted on acreage that is prevented from being
planted to an intended crop or where an intended crop is planted and
fails.
Zero acreage report. An acreage report filed by the producer that
certifies that the producer does not have a share in the crop for that
crop year.
[61 FR 42975, Aug. 20, 1996, as amended at 63 FR 40634, July 30, 1998;
64 FR 40742, July 28, 1999; 68 FR 37721, June 25, 2003]
Sec. 400.652 Insurance availability.
(a) If sufficient actuarial data are available, FCIC will offer
catastrophic risk protection, and additional coverage plans of insurance
to indemnify persons for FCIC insured or reinsured crop loss due to loss
of yield or prevented planting, if the crop loss or prevented planting
is due to an insured cause of loss specified in the applicable crop
insurance policy.
(b) Catastrophic risk protection coverage may be offered through
approved insurance providers and through local offices of the Farm
Service Agency specified by the Secretary. Additional coverage will only
be offered through approved insurance providers unless there is not a
sufficient number of approved insurance providers that offer such
insurance within a service area.
(c) A person must obtain at least catastrophic risk protection for
the crop on all insurable acreage in the county in which the person has
a share on or before the sales closing date designated by FCIC for the
crop in the county in order to satisfy the linkage requirements unless
the producer executes a waiver of any eligibility for emergency crop
loss assistance in connection with the crop.
(d) For additional coverage, in areas where insurance is not
available for a particular agricultural commodity that is insurable
elsewhere, FCIC may enter into a written agreement with a person to
insure the commodity, provided that the person has actuarially sound
data relating to the production of the commodity that is acceptable to
FCIC and that such written agreement is specifically allowed by the crop
insurance regulations applicable to the crop.
(e) Failure to comply with all provisions of the policy constitutes
a breach of contract and may result in ineligibility for certain other
farm program benefits for that crop year and any benefit already
received must be refunded. If a producer breaches the insurance
contract, the execution of a waiver of eligibility for emergency crop
loss assistance will not be effective for the crop year in which the
breech occurred.
[61 FR 42975, Aug. 20, 1996, as amended at 68 FR 37721, June 25, 2003]
Sec. 400.653 Determining crops of economic significance.
To be eligible for certain other program benefits under Sec. 400.655
the following conditions will apply with respect to crops of economic
significance if the producer does not execute a waiver of any
eligibility for emergency crop loss assistance in connection with the
crop.
(a) If a producer planted a crop of economic significance in the
preceding crop year, and does not intend to plant the same crop in the
present crop year, the producer does not have to obtain insurance
coverage or execute a waiver of any eligibility for emergency crop loss
assistance in connection with the crop in the present crop year to
comply with the linkage requirements. However, if the producer later
decides to plant that crop, the producer will be unable to obtain
insurance after the sales closing date and must execute a waiver of any
eligibility for emergency crop loss assistance in connection with the
crop to be eligible for benefits as specified in Sec. 400.655. Failure
to execute such a waiver will require the producer to refund any
benefits already received under a program specified in Sec. 400.655.
(b) The producer is initially responsible to determine the crops of
economic significance in the county. The
[[Page 52]]
insurance provider may assist the producer in making these initial
determinations. However, these determinations will not be binding on the
insurance provider. To determine the percentage value of each crop:
(1) Multiply the acres planted to the crop times the producer's
share, times the approved yield, and times the price;
(2) Add the values of all crops grown by the producer (in the
county); and
(3) Divide the value of the specific crop by the result of paragraph
(b)(2).
(c) The producer may use the type of price, such as the current
local market price, futures price, established price, highest amount of
insurance, etc., for the price when calculating the value of each crop,
provided that the producer uses the same type of price for all crops in
the county.
(d) The producer may be required to justify the calculation and
provide adequate records to enable the insurance provider to verify
whether a crop is of economic significance.
[61 FR 42975, Aug. 20, 1996, as amended at 64 FR 40742, July 28, 1999]
Sec. 400.654 Application and acreage report.
(a) To participate in catastrophic risk protection, or additional
coverage plans of insurance, a producer must submit an application for
insurance on or before the applicable sales closing date.
(b) In order to remain eligible for certain farm programs, as
specified in Sec. 400.655, a producer must obtain at least catastrophic
risk protection on all crops of economic significance, if catastrophic
risk protection is available in the county, unless the producer executes
a waiver of any eligibility for emergency crop loss assistance in
connection with the crop.
(c) Notwithstanding the requirements of Sec. 400.654(a) that
applications for insurance be submitted on or before the applicable
sales closing date, FCIC may permit a producer to insure crops other
than those specified on the application under the following conditions:
(1) The producer must be unable to plant the intended crop or it is
not practical to replant a failed crop before the final planting date.
FCIC will take into consideration marketing windows when determining
whether it was not practical to replant.
(2) Conditions must exist to warrant allowing a producer to insure
crops other than the intended crop.
(3) The producer must submit an application for the substitute crop
on or before the acreage reporting date for the substitute crop and pay
any applicable administrative fee. A producer may not substitute a crop
that the producer planted in the preceding crop year unless that crop
was listed on a timely filed application for the current crop year.
(4) If the producer plants a substitute crop that is a crop of
economic significance, the producer must obtain CAT coverage, if
available, to comply with the linkage requirements specified in
Sec. 400.655. The producer may not substitute a crop under this
provision if the producer has signed or intends to sign a waiver for
emergency crop loss assistance for the crop year.
(5) The substitute crop must be planted on or before the final
planting date or within the late planting period, if applicable, for the
substitute crop.
(6) Under no circumstances may a producer submit an application for
additional coverage after the sales closing date for the substitute
crop.
(d) For all coverages, including catastrophic risk protection, and
additional coverages, the producer must file a signed acreage report on
or before the acreage reporting date. Any person may sign any document
relative to crop insurance coverage on behalf of any other person
covered by such a policy, provided that the person has a properly
executed power of attorney or other legally sufficient document
authorizing such person to sign.
(e) Under catastrophic risk protection, unless the other person with
an insurable interest in the crop objects in writing prior to the
acreage reporting date and provides a signed acreage report on their own
behalf an operator may sign the acreage report for all other persons
with an insurable interest in the crop without a power of attorney. All
persons with an insurable interest in the crop, and for whom the
[[Page 53]]
operator purports to sign and represent, are bound by the information
contained in that acreage report.
[61 FR 42975, Aug. 20, 1996, as amended at 64 FR 40742, July 28, 1999;
68 FR 37721, June 25, 2003]
Sec. 400.655 Eligibility for other program benefits.
The producer must obtain at least catastrophic coverage for each
crop of economic significance in the county in which the producer has an
insurable share, if insurance is available in the county for the crop,
unless the producer executes a waiver of any eligibility for emergency
crop loss assistance in connection with the crop, to be eligible for:
(a) Benefits under the Agricultural Market Transition Act;
(b) Loans or any other USDA provided farm credit, including:
guaranteed and direct farm ownership loans, operating loans, and
emergency loans under the Consolidated Farm and Rural Development Act
provided after October 13, 1994; and
(c) Benefits under the Conservation Reserve Program derived from any
new or amended application or contract executed after October 13, 1994.
[61 FR 42975, Aug. 20, 1996. Redesignated at 63 FR 40634, July 30, 1998]
Sec. Sec. 400.656-400.657 [Reserved]
Subpart U_Ineligibility for Programs Under the Federal Crop Insurance
Act
Authority: 7 U.S.C. 1506(1), 1506(p).
Source: 62 FR 42042, Aug. 5, 1997, unless otherwise noted.
Sec. 400.675 Purpose.
This rule prescribes conditions under which a person may be
determined to be ineligible to participate in any program administered
by FCIC under the Federal Crop Insurance Act, as amended. This rule also
establishes the criteria for reinstatement of eligibility.
Sec. 400.676 [Reserved]
Sec. 400.677 Definitions.
Act. The Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et
seq.).
Actively engaged in farming. Means a person who, in return for a
share of profits and losses, makes a contribution to the production of
an insurable crop in the form of capital, equipment, land, personal
labor, or personal management.
Applicant. A person who has submitted an application for crop
insurance coverage under the Act.
Authorized person. Any current or past officer, employee, elected
official, general agent, agent, contractor, or loss adjuster of FCIC,
the insurance provider, or any other government agency whose duties
require access to the Ineligible Tracking System to administer the Act.
CAT. The catastrophic risk protection plan of insurance.
Controlled substance. Any prohibited drug-producing plants
including, but not limited to, cacti of the genus (lophophora), coca
bushes (erythroxylum coca), marijuana (cannabis sativa), opium poppies
(papaver somniferum), and other drug-producing plants, the planting and
harvesting of which is prohibited by Federal or state law.
Debt. An amount of money which has been determined by an appropriate
agency official to be owed, by any person, to FCIC or an insurance
provider under any program administered under the Act based on evidence
submitted by the insurance provider. The debt may have arisen from an
overpayment, premium or administrative fee nonpayment, interest,
penalties, or other causes.
Debtor. A person who owes a debt and that debt is delinquent.
Delinquent debt. Any debt owed to FCIC or the insurance provider,
that arises under any program administered under the authority of the
Act, that has not been paid by the termination date specified in the
applicable contract of insurance, or other due date for payment
contained in any other agreement or notification of indebtedness, or any
overdue debt owed to FCIC or the insurance provider which is the
[[Page 54]]
subject of a scheduled installment payment agreement which the debtor
has failed to satisfy under the terms of such agreement. Such debt may
include any accrued interest, penalty, and administrative charges for
which demand for repayment has been made, or unpaid premium including
any accrued interest, penalty and administrative charges (7 CFR
400.116). A delinquent debt does not include debts discharged in
bankruptcy and other debts which are legally barred from collection.
EIN. An Employer Identification Number as required under section
6109 of the Internal Revenue Code of 1986.
FCIC. The Federal Crop Insurance Corporation, a wholly owned
government corporation within the United States Department of
Agriculture.
FSA. The Farm Service Agency or a successor agency.
Ineligible person. A person who is denied participation in any
program administered by FCIC under the Act.
Insurance provider. A reinsured company or FSA providing crop
insurance coverage to producers participating in any Federal crop
insurance program administered under the Act.
Minor. Any person under 18 years of age. Court proceedings
conferring majority on an individual under 18 years of age will result
in such persons no longer being considered as a minor.
Person. An individual, partnership, association, corporation,
estate, trust, or other legal entity, and wherever applicable, a State,
political subdivision, or an agency of a State.
Policyholder. An applicant whose properly completed application for
insurance under the crop insurance program has been accepted by FCIC or
an insurance provider.
Reinsurance agreement. An agreement between two parties by which an
insurer cedes to a reinsurer certain liabilities arising from the
insurer's sale of insurance policies.
Reinsured company. A private insurance company having a Standard
Reinsurance Agreement, or other reinsurance agreement, with FCIC, whose
crop insurance policies are approved and reinsured by FCIC.
Scheduled installment payment agreement. An agreement between a
person and FCIC or the insurance provider to satisfy financial
obligations of the person under conditions which modify the terms of the
original debt.
Settlement. An agreement between a person and FCIC or the insurance
provider to resolve a dispute arising from a debt or other
administrative determination.
SSN. An individual's Social Security Number as required under
section 6109 of the Internal Revenue Code of 1986.
Standard Reinsurance Agreement (SRA). The primary reinsurance
agreement between the reinsured company and FCIC.
Substantial beneficial interest. An interest held by any person of
at least 10 percent or more in the applicant or policyholder.
System of records. Records established and maintained by FCIC and
FSA containing SSN or EIN data, name, address, city and State,
applicable policy numbers, and other information related to Federal crop
programs as required by FCIC, from which information is retrieved by a
personal identifier including the SSN, EIN, name, or other unique
identifier of a person.
[62 FR 42042, Aug. 5, 1997, as amended at 63 FR 40631, July 30, 1998]
Sec. 400.678 Applicability.
This subpart applies to any program administered by FCIC under the
Act, including:
(a) The catastrophic risk protection plan of insurance;
(b) The limited and additional coverage plans of insurance as
authorized under sections 508(c) and 508(m) of the Act; and
(c) Private insurance products authorized under section 508(h) of
the Act and reinsured by FCIC.
Sec. 400.679 Criteria for ineligibility.
Any person may be determined to be ineligible to participate in any
program administered by FCIC under the authority of the Act, if the
person meets one or more of the following criteria:
(a) Has a delinquent debt on a crop insurance policy, issued or
reinsured by FCIC, or any delinquent debt due FCIC
[[Page 55]]
under the Act. Any person with a delinquent debt owed to FCIC or to the
insurance provider shall be ineligible to participate in any program
administered under the authority of the Act. Such determinations will be
in accordance with 7 CFR 400.459. The existence and delinquency of the
debt must be verifiable.
(b) Has violated the controlled substance (7 CFR part 718)
provisions of the Food Security Act of 1985, as amended. Any person who
violates the controlled substance provisions of the Food Security Act of
1985, as amended, shall be ineligible to participate in any program
administered under the Act.
(c) Has been disqualified under section 506(n) of the Act and 7 CFR
part 400, subpart R. Any person who is disqualified in any
administrative proceeding shall be ineligible to participate in any
program administered under the Act. Ineligibility determinations
resulting from administrative proceedings will not be stayed pending
review. However, reversal of the determination will date back to the
time of determination.
Sec. 400.680 Determination and notification of ineligibility.
(a) The insurance provider must send a written notice of the debt to
the person, including the time frame in which the debt must be paid, and
provide the person with a meaningful opportunity to contest the amount
or existence of the debt. After the insurance provider has evaluated the
person's response, if any, and determined that the debt is owed and
delinquent, the insurance provider should submit the documentation
establishing the existence and amount of the debt to FCIC, including any
response by the person.
(b) If an insurance provider or any other authorized person has
evidence that a person meets any other criteria set forth in
Sec. 400.679, they must submit the evidence to FCIC.
(c) After FCIC verifies that the person has met one or more of the
criteria stated in Sec. 400.679, FCIC will issue a Notice of
Ineligibility and mail such notice to the person's last known address
and to the insurance provider.
(d) The Notice of Ineligibility will state the criteria upon which
the determination of ineligibility has been based, a brief statement of
the facts to support the determination, the time period of
ineligibility, and the persons right to an appeal of the ineligibility
determination.
(e) Within 30 days of receiving the Notice of Ineligibility, any
person receiving such a notice may appeal the determination of
ineligibility to the National Appeals Division in accordance with 7 CFR
part 11.
(f) If the person appeals the determination of ineligibility to the
National Appeals Division, the insurance provider will be notified and
provided with an opportunity to participate in the proceeding if
permitted by 7 CFR part 11.
Sec. 400.681 Effect of ineligibility.
(a) The period of ineligibility will be effective:
(1) For ineligibility as a result of a delinquent debt, the date the
debt has been determined to be delinquent until the debt has been paid
in full, discharged in bankruptcy, or the person has executed a
scheduled installment payment agreement;
(2) For ineligibility as a result of a violation of the controlled
substance provisions of the Food Security Act of 1985, at the beginning
of the crop year in which the producer was convicted and the four
subsequent consecutive crop years; and
(3) For ineligibility as a result of a disqualification under
section 506(n) of the Act, the date that the Administrative Law Judge
signs the order disqualifying the person until the period specified in
the order of disqualification has expired.
(b) Once the person has been determined to be ineligible:
(1) All policies in which the ineligible person is the sole insured
will be void for the period specified in Sec. 400.681(a);
(2) If the ineligible person is a general partnership, all partners
will be individually ineligible and any policy in which a partner has a
100 percent interest will be void for the period specified in
Sec. 400.681(a). The partnership and all partners will be removed from
any policy in which they have a substantial beneficial interest, and the
policyholder share under the policies will be
[[Page 56]]
reduced commensurate with the ineligible person's share;
(3) If the applicant or policyholder is a corporation, partnership,
or other business entity, and an ineligible person has a substantial
beneficial interest in the applicant or policyholder, the application
may be accepted or existing policies remain in effect, although the
ineligible person will be removed from the policies and the policyholder
share under the policies will be reduced commensurate with the
ineligible person's share;
(4) If the applicant or policyholder is a corporation, partnership,
or other business entity that was created to conceal the interest of a
person in the farming operation or to evade the ineligibility
determination of a person with a substantial beneficial interest in the
applicant or policyholder, the corporation, partnership or other
business entity will be disregarded, the individual shareholders or
partners will be personally responsible, and any shareholder or partner
that is ineligible will be removed from the policy and the policyholder
share under the policies will be reduced commensurate with the
ineligible person's share;
(5) Any indemnities or payments made on a voided policy, or on the
portion of the policy reduced because of ineligibility, will be declared
overpayments and must be repaid; and
(6) If the policy is voided, all producer paid premiums may be
refunded, or if an ineligible person is removed from a policy, the
portion of the producer paid premium commensurate with the ineligible
person's share may be refunded, less a reasonable amount for expense and
handling in accordance with 7 CFR 400.47.
(c) The spouse and minor children of an individual are considered to
be the same as the individual for purposes of this subpart except that:
(1) The spouse who was actively engaged in farming in a separate
farming operation will be a separate person with respect to that
separate farming operation so long as that operation remains separate
and distinct from any farming operation conducted by the other spouse
(Transfers of interest in a farming operation from one spouse to another
will not be considered as a separate farming operation.);
(2) A minor child who is actively engaged in farming in a separate
farming operation will be a separate person with respect to that
separate farming operation if:
(i) The parent or other entity in which the parent has a substantial
beneficial interest does not have any interest in the minor's separate
farming operation or in any production from such operation;
(ii) The minor has established and maintains a separate household
from the parent;
(iii) The minor personally carries out the farming activities with
respect to the minor's farming operation; and
(iv) The minor establishes separate accounting and record keeping
for the minor's farming operation.
Sec. 400.682 Criteria for reinstatement of eligibility.
A person who has been determined ineligible may have eligibility
reinstated as follows:
(a) A delinquent debt owed on a crop insurance policy insured or
reinsured by FCIC or any delinquent debt due FCIC. Eligibility may be
reinstated after the debt is paid in full or discharged in bankruptcy,
or the person has executed a scheduled installment payment agreement
accepted by FCIC or the insurance provider. Eligibility may be
reinstated as of the date the debt is paid, the date the agreement is
accepted, or the date the debt is discharged in bankruptcy.
(b) Violations of the controlled substance provisions of the Food
Security Act of 1985, as amended. Eligibility may be reinstated after
the period of ineligibility stated in Sec. 400.681 has expired.
(c) Disqualification under section 506(n) of the Act. Eligibility
may be reinstated when the period of disqualification determined in the
administrative proceedings has expired and payment of all penalties and
overpayments have been completed.
(d) Timing of reinstatement of eligibility. After eligibility has
been reinstated, the person must complete a new application for crop
insurance coverage
[[Page 57]]
on or before the applicable sales closing date. If the date of
reinstatement of eligibility occurs after the applicable sales closing
date for the crop year, the person may not participate until the
following crop year. If the National Appeals Division determines that
the person should not have been placed on the Ineligible Tracking
System, reinstatement will be effective at the beginning of the crop
year for which the producer was listed on the Ineligible Tracking System
and the person will be entitled to all applicable benefits under the
policy.
Sec. 400.683 Administration and maintenance.
(a) Ineligible producer data will be maintained in a system of
records in accordance with the Privacy Act, 5 U.S.C. 552a.
(1) The Ineligible Tracking System is a record of all persons who
have been determined to be ineligible for participation in any program
pursuant to this subpart. This system contains identifying information
of the ineligible person including, but not limited to, name, address,
telephone number, SSN or EIN, reason for ineligibility, and time period
for ineligibility.
(2) Information in the Ineligible Tracking System may be used by
Federal agencies, FCIC employees, contractors, and reinsured companies
and their personnel who require such information in the performance of
their duties in connection with any program administered under the Act.
The information may be furnished to other users including, but not
limited to, FCIC contracted agencies; credit reporting agencies and
collection agencies; in response to judicial orders in the course of
litigation; and other users as may be appropriate or required by law or
regulation. The individual information will be made available in the
form of various reports and notices produced from the Ineligible
Tracking System, based on valid requests.
(3) Supporting documentation regarding the determination of
ineligibility and reinstatement of eligibility will be maintained by
FCIC and FSA, or its contractors, reinsured companies, and Federal and
State agencies. This documentation will be maintained consistent with
the electronic information contained within the Ineligible Tracking
System.
(b) Information may be entered into the Ineligible Tracking System
by FCIC or FSA personnel.
(c) All persons applying for or renewing crop insurance contracts
issued or reinsured by FCIC will be subject to validation of their
eligibility status against the Ineligible Tracking System. Applications
or benefits approved and accepted are considered approved or accepted
subject to review of eligibility status in accordance with this subpart.
Subpart V_Submission of Policies, Provisions of Policies and Rates of
Premium
Authority: 7 U.S.C. 1506(1), 1506(p).
Source: 66 FR 47951, Sept. 17, 2001, unless otherwise noted.
Sec. 400.700 Basis, purpose, and applicability.
This subpart establishes guidelines for the submission of policies,
plans of insurance, and rates of premium to the Board as authorized
under section 508(h) of the Act and for nonreinsured supplemental
policies in accordance with the SRA, and the roles and responsibilities
of FCIC and the applicant. It also specifies the procedures for
requesting reimbursement for research and development costs, and
maintenance costs for products and the approval process.
[74 FR 8705, Feb. 26, 2009]
Sec. 400.701 Definitions.
Act. The Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et
seq.)
Actuarial documents. The material for the crop or insurance year
which is available for public inspection in your agent's office and
published on RMA's website at http://www.rma.usda.gov/, or a successor
website, and which shows available coverage levels, information needed
to determine premium rates, premium adjustment percentages, practices,
particular types or varieties of the insurable crop or agricultural
[[Page 58]]
commodity, insurable acreage or commodities, and other related
information regarding crop insurance or other risk management plans of
insurance in the county or state.
Actuarially appropriate. Premium rates expected to cover anticipated
losses and a reasonable reserve based on valid reasoning, an examination
of available risk data, which for new products may be scarce but must
still be of sufficient quality and quantity to reasonably determine the
anticipated losses, or thorough knowledge or experience of the expected
value of future costs associated with the risk to be transferred.
Administrative and Operating (A&O) subsidy. The subsidy for the
administrative and operating expenses authorized by the Act and paid by
FCIC on behalf of the producer to the approved insurance provider. Loss
adjustment expense reimbursement paid by FCIC for CAT eligible crop
insurance contracts, and any ceding commission received for ceding any
portion of the risk associated with any eligible crop insurance contract
authorized under the authority of the Act with a reinsurer are not
considered as A&O subsidy.
Applicant. Any person or entity that submits a policy, plan of
insurance, provisions of a policy or plan of insurance, or rates of
premium to the Board for approval under section 508(h) of the Act.
Approved insurance provider. A private insurance company that has
been approved by FCIC to provide insurance coverage to producers
participating in programs authorized by the Act.
Board. The Board of Directors of FCIC.
Complete submission. A submission determined by the Board to contain
all necessary and appropriate documentation in accordance with
Sec. 400.705 and is of sufficient quality to conduct a meaningful
review.
Complexity. Complexity takes into consideration such factors as
originality, the number and type of factual determinations necessary to
establish insurable interest, evaluate risk, and determine whether an
indemnity is payable, the number of commodities and areas to which the
product is applicable, the rating methodology, the number of risks
covered, unique policy provisions or endorsements, the delivery process
of the submission, and the process of creating rules, policy terms and
conditions, underwriting procedures, rating methodologies,
administrative and operating procedures, and supporting materials.
Development. The process of drafting rules, new policy provisions,
pricing and rating methodologies, administrative and operating
procedures, systems and software, supporting materials, and
documentation necessary to create and implement a proposed policy or
coverage.
Disinterested third party. A person who does not have any familial
relationship (parents, brothers, sisters, children, spouse,
grandchildren, aunts, uncles, nieces, nephews, first cousins, or
grandparents, related by blood, adoption or marriage, are considered to
have a familial relationship) with anyone employed or contracted by the
applicant or who will not benefit financially from the approval of the
submission.
Endorsement. A document that amends a policy reinsured under the Act
in a manner that supplements or amends the insurance coverage provided
by that policy.
FCIC. The Federal Crop Insurance Corporation, a wholly owned
government corporation within USDA.
Maintenance. For the purposes of this subpart only, the process of
continual support and improvement, as needed, for a policy or plan of
insurance, including the periodic review of setting prices, updating
premium rates or the rating methodology, updating or modifying policy
terms and conditions, and any other actions necessary to provide
adequate and meaningful protection for producers, ensure actuarial
soundness, or to respond to statutory or regulatory changes.
Maintenance costs. Specific expenses associated with the maintenance
of a policy during the maintenance period.
Maintenance period. A period of time that begins on the date the
Board approves the submission for maintenance and ends on the date that
is not more than four reinsurance years after such approval.
Manager. The Manager of FCIC.
[[Page 59]]
Marketable. A determination by the Board that a sufficient number of
producers will purchase the product and approved insurance providers
will sell the product to make it economical, based on credible evidence
provided by the applicant and any other relevant information.
Marketing plan. A detailed, written plan that identifies, at a
minimum, the expected number of potential buyers, premium, liability, a
prescribed insurance year cycle, the data upon which such information is
based, such data may include, but is not limited to, focus group
results, market research studies, qualitative market estimates, effects
upon the delivery system or ancillary participants, correspondence from
producers expressing the need for such policy or plan of insurance,
responses from a reasonable representative cross-section of producers to
be effected by the policy or plan of insurance demonstrating the number
of producers likely interested in purchasing the product, and a
commitment from at least one approved insurance provider to sell and
support such a policy or plan of insurance.
Multiple peril crop insurance (MPCI). All insurance policies
reinsured by FCIC that offers coverage for loss of production, loss of
revenue, or both.
National Agricultural Statistics Service (NASS). An agency of the
United States Department of Agriculture, or a successor agency.
Nonreinsured supplemental policy (NRS). A policy, endorsement or
other risk management tool that is not reinsured under the Act, or has
not been submitted to FCIC under section 508(h) of the Act, that offers
additional coverage, other than loss related to hail, to a policy or
plan of insurance that is reinsured by FCIC.
Non-significant changes. Minor changes to the policy or plan of
insurance, such as technical corrections, that do not affect the rating
or pricing methodologies, the amount of subsidy owed, the amount or type
of coverage, the interests of producers, FCIC's reinsurance risk, or any
condition that does not affect liability or the amount of loss to be
paid under the policy. Statutory or regulatory requirements are included
in this category regardless of impact.
Plan of insurance. A class of policies, such as MPCI or Group Risk
Plan of Insurance, that offers a specific type of coverage to one or
more agricultural commodities.
Policy. A contract for insurance that includes an accepted
application, Basic Provisions, applicable Commodity Provisions, other
applicable options and endorsements, the Special Provisions, related
materials, and the applicable regulations published in 7 CFR chapter IV.
Rate of premium. The dollar amount per insured unit or percentage
rate per dollar of liability that is needed to pay anticipated losses
and provide a reasonable reserve.
Related material. The actuarial documents for the insured
agricultural commodity and any underwriting or loss adjustment manual,
handbook, form or other information needed to administer the policy.
Research. For the purposes of development, the gathering of
information related to: Producer needs and interests; the marketability
of the policy or plan of insurance; the appropriate policy terms,
premium rates, price elections, administrative and operating procedures,
supporting materials, and the documentation, systems and software
necessary to implement a policy or plan of insurance. Gathering of
information to determine whether it is feasible to expand a policy or
plan of insurance to a new area or to cover a new commodity under the
same policy terms and conditions, price, and premium rates is not
considered research.
Research and development costs. Specific expenses incurred and
directly related to the research and development of a submission, as
initially approved by the Board.
Risk Management Agency (RMA). An agency of USDA responsible for the
administration of all programs authorized under the Act and other
authorities.
Risk subsidy. The portion of the approved premium paid by FCIC on
behalf of the insured person.
Sales closing date. The final calendar date on which an approved
insurance
[[Page 60]]
provider may accept an application by a producer for insurance.
Secretary. The Secretary of the United States Department of
Agriculture.
Significant change. Any change to the policy or plan of insurance
that may affect the rating and pricing methodologies, the amount of
subsidy owed, the amount of coverage, the interests of producers, FCIC's
reinsurance risk, or any condition that may affect liability or the
amount of loss to be paid under the policy.
Special Provisions. The part of the policy that contains specific
provisions of insurance for each insured commodity that may vary by
geographic area.
Submission. A policy, plan of insurance, provision of a policy or
plan of insurance, or rates of premium provided by an applicant to FCIC
in accordance with the requirements of this subpart.
USDA. The United States Department of Agriculture.
User fees. Fees, approved by the Board, that can be charged to
approved insurance providers for use of a policy or plan of insurance.
[66 FR 47951, Sept. 17, 2001, as amended at 70 FR 41918, July 20, 2005;
70 FR 44235, Aug. 2, 2005; 74 FR 8705, Feb. 26, 2009]
Sec. 400.702 Confidentiality of submission and duration of
confidentiality.
(a) Prior to approval by the Board, any submission made to the Board
under section 508(h) of the Act, including any information generated
from the submission, will be considered confidential commercial or
financial information for purposes of 5 U.S.C. 552(b)(4) and will not be
released by FCIC to the public, unless the applicant authorizes such
release in writing.
(b) Once the Board approves a submission, all information provided
with the submission, or generated in the approval process, may be
released to the public, including any mathematical modeling and data,
unless it remains confidential business information under 5 U.S.C.
552(b).
(c) Any submission disapproved by the Board will remain confidential
commercial or financial information in accordance with 5 U.S.C. 552(b)
and no information related to such submission will be released by FCIC
unless authorized in writing by the applicant.
(d) In the submission, the applicant must state if the name of the
submission may be used in Board documents including but not limited to
the agenda, minutes, and Board memoranda. The applicant cannot use false
names to mislead the public regarding the nature of the submission. If
permission is not given to use the name of the submission, the
submission will simply be referred to as a ``Section 508(h)
submission.''
[66 FR 47951, Sept. 17, 2001, as amended at 70 FR 44236, Aug. 2, 2005]
Sec. 400.703 Timing of submission.
(a) A submission may only be provided to FCIC, in either a hard copy
or electronic format, during the first 5 business days of January,
April, July, and October.
(b) Any submission not provided within the first 5 business days of
a month stated in paragraph (a) of this section, will be considered to
have been provided the next month stated in paragraph (a). For example,
if an applicant provides a submission on January 10, it will be
considered to have been received on April 1.
(c) Any submission must be provided to the Deputy Administrator,
Research and Development (or any successor), Risk Management Agency,
6501 Beacon Drive, Stop 0812, Kansas City, MO 64133-4676, not later than
240 days prior to the earliest proposed sales closing date to be
considered for sale in the requested crop year.
(d) The Board, or RMA if authorized by the Board, shall determine
when sales can begin for a submission approved by the Board.
[70 FR 44236, Aug. 2, 2005]
Sec. 400.704 Type of submission.
(a) An applicant may submit to the Board in accordance with
Sec. 400.705:
(1) A policy or plan of insurance not currently reinsured by FCIC;
(2) One or more proposed revisions to a policy or plan of insurance
authorized under the Act; or
(3) Rates of premium for any policy or plan of insurance authorized
under the Act.
[[Page 61]]
(b) An applicant must submit to the Board any significant change to
a previously approved submission prior to making the change.
Sec. 400.705 Contents required for a new submission or changes to a
previously approved submission.
(a) A complete submission must contain the following material, as
applicable, in the order given, in a three ring binder, with a table of
contents, page numbers, and section dividers clearly labeling each
section or in an electronic format that when printed will be an exact
duplicate of the information that would have been found in the three-
ring binder with the exception of section dividers.
(1) If a hard copy of the submission is provided, it must include
six identical copies provided to the Deputy Administrator, Research and
Development (or successor), Risk Management Agency, 6501 Beacon Drive,
Stop 0812, Kansas City, MO 64133-4676, and one identical copy of the
submission provided to the Administrator, Risk Management Agency, 1400
Independence Ave., Stop 0801, Room 3053 South Building, Washington, DC
20250-0801.
(2) Electronic submissions must be sent to the Deputy Administrator,
Research and Development (or successor) at
[email protected] and the Administrator at
[email protected].
(b) The first section will contain general information, including,
as applicable:
(1) The applicant's name, address or primary business location,
phone number, and e-mail address;
(2) The type of submission (see Sec. 400.704);
(3) A statement of whether the applicant is requesting:
(i) Reinsurance, which includes risk subsidy and A&O subsidy;
(ii) Reimbursement for research and development costs, as
applicable; or
(iii) Reimbursement for maintenance costs, as applicable;
(4) The proposed agricultural commodities, including types,
varieties, and practices covered by the submission;
(5) The crop and reinsurance years in which the submission is
proposed to be available for purchase by producers;
(6) The proposed sales closing date, if applicable, or if not
applicable, the earliest date the applicant expects to release the
product to the public;
(7) The proposed duration and scope of the plan of insurance;
(8) A marketing plan;
(9) Any known or anticipated future expansion plans;
(10) Identification, including names, addresses, telephone numbers,
and e-mail addresses, of the persons responsible for:
(i) Addressing questions regarding the policy, underwriting rules,
loss adjustment procedures, rate and price methodologies, data
processing and record-keeping requirements, and any other questions that
may arise in administering the program after it is approved; and
(ii) Annual reviews to ensure compliance with all requirements of
the Act, this subpart, and any agreements executed between the applicant
and FCIC; and
(11) A statement of whether the submission will be filed with the
applicable office responsible for regulating insurance in each state
proposed for insurance coverage, and if not, reasons why the submission
will not be filed for review.
(c) The second section must contain the benefits of the plan,
including, as applicable, a statement about the plan that demonstrates:
(1) How the submission offers coverage or other benefits not
currently available from existing public and private programs;
(2) The projected demand for the submission, which must be supported
by information from market research, producers or producer groups,
agents, lending institutions, and other interested parties that provide
verifiable evidence of demand; and
(3) How the submission meets public policy goals and objectives
consistent with the Act and other laws, as well as policy goals
supported by USDA and the Federal Government.
(d) Except as provided in this section, the third section must
contain the policy, including, as applicable:
[[Page 62]]
(1) If the submission involves a new insurance policy or plan of
insurance:
(i) All applicable policy provisions; and
(ii) A list and description of any additional coverage that may be
elected by the insured, including how such coverage may be obtained; and
(2) If the submission involves a change to a previously approved
policy, plan of insurance, or rates of premium, the proposed revisions,
rationale for each change, data and analysis supporting each change, the
impact of each change, and the impact of all changes in aggregate.
(e) The fourth section must contain the information related to the
marketing of the policy or plan of insurance, including, as applicable:
(1) A list of counties and states where the submission is proposed
to be offered;
(2) The amount of commodity (acres, head, board feet, etc.), the
amount of production, and the value of each agricultural commodity
proposed to be covered in each proposed county and state;
(3) The expected liability and premium for each proposed county and
state;
(4) If available, any insurance experience for each year and in each
proposed county and state in which the policy has been previously
offered for sale including an evaluation of the policy's performance
and, if data are available, a comparison with other similar insurance
policies reinsured under the Act;
(5) Focus group results;
(6) Market research studies;
(7) Qualitative market estimates;
(8) Affects upon the delivery system or ancillary participants;
(9) Correspondence from producers expressing the need for such
policy or plan of insurance;
(10) Responses from a reasonable representative cross-section of
producers to be affected by the policy or plan of insurance; and
(11) Commitment in writing from at least one approved insurance
provider to sell and support the policy or plan of insurance.
(f) The fifth section must contain the information related to the
underwriting and loss adjustment of the submission, including as
applicable:
(1) Detailed rules for determining insurance eligibility, including
all producer reporting requirements;
(2) Relevant dates, if not included in the proposed policy;
(3) Detailed examples of the data and calculations needed to
establish the insurance guarantee, liability, and premium per acre or
other unit of measure, including worksheets that provide the
calculations in sufficient detail and in the same order as presented in
the policy to allow verification that the premiums charged for the
coverage are consistent with policy provisions;
(4) Detailed examples of calculations used to determine indemnity
payments for all probable situations where a partial or total loss may
occur;
(5) A detailed description of the causes of loss covered by the
policy or plan of insurance and any causes of loss excluded;
(6) Any statements to be included in the actuarial documents; and
(7) The loss adjustment standards handbook for the policy or plan of
insurance that includes:
(i) A table of contents and introduction;
(ii) A section containing abbreviations, acronyms, and definitions;
(iii) A section containing insurance contract information
(insurability requirements; crop provisions not applicable to
catastrophic risk protection; specific unit division guidelines, if
applicable; notice of damage or loss provisions; quality adjustment
provisions; etc);
(iv) A section that thoroughly explains appraisal methods, if
applicable;
(v) Illustrative samples of all the applicable forms needed for
insuring and adjusting losses in regards to the product plus detailed
instructions for their use and completion;
(vi) Instructions, examples of calculations, and loss adjustment
procedures that are necessary to establish the amounts of coverage and
loss;
(vii) A section containing any special coverage information (i.e.,
replanting, tree replacement or rehabilitation, prevented planting,
etc.), as applicable; and
[[Page 63]]
(viii) A section containing all applicable reference material (i.e.,
minimum sample requirements, row width factors, etc.).
(g) The sixth section must contain information related to prices and
rates of premium, including, as applicable:
(1) A list of all assumptions made in the premium rating and
commodity pricing methodologies, and the basis for these assumptions;
(2) A detailed description of the pricing and rating methodologies,
including supporting documentation, all mathematical formulas,
equations, and data sources used in determining rates and prices and an
explanation of premium components that detail how rates were determined
for each component, that demonstrate the rate is appropriate;
(3) An example of both a rate calculation and a price calculation;
(4) A discussion of the applicant's objective evaluation of the
reliability of the data;
(5) An analysis of the results of simulations or modeling showing
the performance of proposed rates and commodity prices, as applicable,
based on one or more of the following (Such simulations must use all
years of experience available to the applicant);
(i) A recalculation of total premium and losses compared to a
similar or comparable insurance plan offered under the authority of the
Act with modifications, as needed, to represent the components of the
submission;
(ii) A simulation based on the probability distributions used to
develop the rates and commodity prices, as applicable, including
sensitivity tests that demonstrate price or yield extremes, and the
impact of inappropriate assumptions; or
(iii) Any other comparable simulation that provides results
indicating both aggregate and individual performance of the submission
under various scenarios depicting good and poor actuarial experience;
and
(6) A simulation of expected losses capturing both a probable loss
and a total loss.
(h) The seventh section must contain an evaluation and certification
from a disinterested third party who is an accredited associate or
fellow of the Casualty Actuarial Society, or other similarly qualified
professional, who certifies the submission is actuarially appropriate
and consistent with appropriate insurance principles and practices.
(i) The eighth section must contain all forms applicable to the
submission, including:
(1) An application for insurance and procedures for accepting the
application; and
(2) All applicable policy forms, instructions and procedures that
are necessary to establish the amounts of coverage or loss.
(j) The ninth section must contain the following:
(1) A statement specifying sales will not commence for any new or
revised submission until at least 60 days after all policy provisions
and related material are released to the public by RMA, unless otherwise
specified by the Board;
(2) An explanation of any provision of the policy not authorized
under the Act and identification of the portion of the rate of premium
due to these provisions;
(3) Agent and loss adjuster training plans; and
(4) A certification from the applicant's legal counsel that the
submission meets and complies with all requirements of the Act,
applicable regulations, and any reinsurance agreement.
(k) The tenth section must contain a written plan, including
specifications and details for the systems and software development
necessary for the implementation of the submission, if applicable, and
the documents that demonstrate the submitter has the capability and
resources to develop systems that comply in all respects with the
standards established for processing and acceptance of data by the FCIC
Data Acceptance System, or successor system, unless otherwise authorized
by FCIC. Unless otherwise determined by FCIC, the applicant must consult
with FCIC to determine whether their submission can be implemented and
administered through the current system;
(1) If FCIC approves the submission and determines that its system
has the
[[Page 64]]
capacity to implement and administer the submission, the applicant must
provide acceptable computer requirements, code and software, consistent
with that used by FCIC, to facilitate the acceptance of producer
applications and all related data;
(2) If FCIC approves the submission and determines that its system
lacks the capacity to implement and administer the submission, the
applicant must provide acceptable computer systems, requirements, code
and software necessary to implement and administer the policy or plan of
insurance;
(3) Any computer systems, requirements, code and software must be
consistent with that used by FCIC and comply with the standards
established in Appendix III, or any successor document, of the Standard
Reinsurance Agreement or other reinsurance agreement as specified by
FCIC; and
(4) These requirements are available from the Risk Management
Agency, 6501 Beacon Drive, Stop 0812, Kansas City, MO, 64133-4676 or on
RMA's Web site at http://www.rma.usda.gov/data/#m13, or a successor
website.
(l) The eleventh section must contain a training package. The
training package must include a thorough discussion, explanations,
written exercises, and examples covering the following topics:
(1) Basic and catastrophic risk protection policy provisions;
(2) The commodity provisions and any endorsements;
(3) Underwriting under the underwriting guide;
(4) Eligibility requirements;
(5) Guarantee, indemnity, and premium calculations;
(6) Special Provisions of Insurance;
(7) Actuarial documents;
(8) Loss adjustment under the loss adjustment standards handbook;
(9) Applicable additions to the Crop Insurance Handbook (CIH); and
(10) Applicable additions to the Loss Adjustment Manual (LAM).
(m) The twelfth section submitted on separate pages and in
accordance with Sec. 400.712 must specify:
(1) On one page, the total estimated amount that will be requested
for reimbursement of research and development costs (for new products
only) or the estimated amount for maintenance costs for the year for
which the submission will be effective (for products that are within the
maintenance period); and
(2) On another page, a comprehensive estimate of maintenance costs
for each future year of the maintenance period and the basis for which
such maintenance costs will be incurred, including, but not limited to:
(i) Any anticipated expansion;
(ii) The generation of rates, Special Provisions, underwriting
rules, etc;
(iii) The determination of prices; and
(iv) Any other costs that the applicant anticipates will be
requested for reimbursement.
(n) The thirteenth section must contain executed certification
statements in accordance with the following:
(1) ``{Applicant's Name{time} hereby claim that the amounts set
forth in this section and Sec. 400.712 are correct and due and owing to
{Applicant's Name{time} by FCIC under the Federal Crop Insurance Act'';
and
(2) ``{Applicant's Name{time} understands that, in addition to
criminal fines and imprisonment, the submission of false or fraudulent
statements or claims may result in civil and administrative sanctions.''
[70 FR 44236, Aug. 2, 2005]
Sec. 400.706 Review of submission.
(a) Prior to providing the submission to the Board to determine
whether it is a complete submission, RMA will:
(1) Review the submission to determine if all necessary and
appropriate documentation is included in accordance with Sec. 400.705;
(2) Review the submission to determine whether the submission is of
sufficient quality to conduct a meaningful review;
(3) Inform the applicant of the information RMA deems necessary for
the submission to comply with paragraphs (a)(1) and (2) of this section;
and
(4) Forward the submission and the results of RMA's initial review
to the Board.
(b) Upon the Board's receipt of the submission, the Board will:
(1) Determine if the submission is a complete submission (The date
the
[[Page 65]]
Board votes to contract with independent reviewers is the date the
submission is deemed to be a complete submission for the start of the
120 day time-period for approval);
(2) Forward the complete submission to at least five independent
persons with underwriting or actuarial experience to review the
submission:
(i) Of the five reviewers, no more than one will be employed by the
Federal Government, and none may be employed by any approved insurance
provider or their representative; and
(ii) The reviewers will each provide their assessment of whether the
submission protects the interest of agricultural producers and
taxpayers, is actuarially appropriate, follows appropriate insurance
principles, meets the requirements of the Act, does not contain
excessive risks, follows sound, reasonable, and appropriate underwriting
principles, as well as other items the Board may deem necessary;
(3) Return to the applicant any submission the Board determines is
not a complete submission, and provide documentation to the applicant
explaining such. If the submission is resubmitted at a later date, it
will be considered a new submission;
(4) For all complete submissions:
(i) Request review of the submission by RMA to provide its
assessment of whether:
(A) The submission protects the interests of agricultural producers
and taxpayers, is actuarially appropriate, follows appropriate insurance
principles, meets the requirements of the Act, does not contain
excessive risks, is consistent with USDA's public policy goals, does not
increase or shift risk to any other FCIC reinsured policy, offers
coverage that is similar to another policy or plan of insurance and if
the producer would further benefit from the submission and can be
administered and delivered efficiently and effectively;
(B) The marketing plan is reasonable;
(C) RMA has the resources to consider, implement, and administer the
submission; and
(D) The requested amount of government reinsurance, risk subsidy,
and administrative and operating subsidies is reasonable and appropriate
for the type of coverage provided by the policy submission; and
(ii) Seek review from the Office of the General Counsel (OGC) to
determine if the submission conforms to the requirements of the Act and
all applicable Federal regulations.
(c) All comments and evaluations will be provided to the Board by a
date determined by the Board to allow the Board adequate time for
review.
(d) The Board will consider all comments, evaluations, and
recommendations in its review process. Prior to making a decision, the
Board may request additional information from RMA, OGC, the independent
reviewers, or the applicant.
(e) An applicant may request, at any time, a time delay before the
Board provides a notice of intent to disapprove the submission. The
Board is not required to agree to such an extension.
(1) Any requested time delay will not be limited in the length of
time or the number of delays. However, delays may make implementation of
the submission for the targeted crop year impractical or impossible.
(2) The time period during which the Board must make a decision to
approve or disapprove shall be extended commensurately with any time
delay requested by the applicant.
(3) If the Board agrees to an extension of time, the Board and the
applicant must agree to a time period in which the Board must make its
decision to approve or disapprove after the expiration of any requested
time delay.
(f) The applicant may withdraw a submission or a portion of a
submission at any time by written request to the Board. A withdrawn
submission that is resubmitted will result in the submission being
deemed a new submission for the purpose of determining the amount of
time that the Board must act on such submission.
(g) The Board will render a decision to approve the submission with
or without revision or give notice of intent to disapprove within 90
days after the date the submission is considered complete by the Board
in accordance with paragraph (b)(1) of this section, unless the
applicant and Board agree to
[[Page 66]]
a time delay in accordance with paragraph (e) of this section.
(h) The Board may disapprove a submission if it determines that:
(1) The interests of producers and taxpayers are not protected,
including but not limited to:
(i) The submission does not provide adequate coverage or treats
producers disparately;
(ii) The applicant has not presented sufficient documentation that
the submission is marketable;
(iii) Coverage would be similar to another policy or plan of
insurance and the producer would not further benefit from the
submission; or
(iv) The resources of FCIC or RMA are not sufficient to support the
review and implementation of the product;
(2) The premium rates are not actuarially appropriate;
(3) The submission does not conform to sound insurance and
underwriting principles;
(4) The risks associated with the submission are excessive or it
increases or shifts risk to any other FCIC reinsured policy;
(5) The submission does not meet the requirements of the Act or is
not in accordance with USDA's public policy goals; or
(6) There is insufficient time before the submission would become
effective under section 508(h) of the Act for the Board to make an
informed decision with respect to whether the interests of producers are
protected, the premium rates are actuarially appropriate, or the risks
associated with the submission are excessive;
(i) If the Board intends to disapprove the submission, the applicant
will be notified in writing at least 30 days prior to the Board taking
such action. The Board will provide the applicant with a written
explanation for the intent to disapprove the submission.
(j) After written notice of intent to disapprove all or part of a
submission has been provided by the Board, the applicant must provide
written notice to the Board not later than 30 days after the Board
provided such notice, if the submission will be modified. Except as
provided in paragraph (j)(3) of this section, the applicant must also
include an anticipated date that the modification will be provided to
the Board. If the applicant does not respond within the 30-day period,
the Board will send the applicant a letter stating the submission is
disapproved.
(1) If the modification is in direct response to reviewer comments,
the Board may act on the modification immediately or seek further review
within the 30-day time period allowed.
(2) The Board will approve or disapprove a modified submission not
later than 30 days after receiving a modified submission from the
applicant, unless the applicant and the Board agree to a time delay. If
a time delay is agreed upon, the time period during which the Board must
act on the modified submission will not be in effect during the delay.
(3) The Board will disapprove a modified submission if:
(i) All causes for disapproval stated by the Board in its
notification of intent to disapprove the submission are not
satisfactorily addressed;
(ii) Insufficient time is available for review of the modified
submission to determine whether all causes for disapproval have been
satisfactorily addressed; or
(iii) Modification is so substantial that the Board determines that
additional independent review is required and a time delay can not be
agreed upon to allow for such review.
(k) A submission will be disapproved if the applicant does not
present a modification of the submission to the Board on the date the
applicant anticipated presenting the modification or does not request an
additional time delay.
(l) If the Board fails to take action on a new submission within the
prescribed 90-day period in paragraph (g) of this section, or within the
time period in accordance with paragraph (e)(3) of this section after
receiving the revised submission, such submission will be deemed
approved by the Board for the initial reinsurance year designated for
the submission. The Board must approve the submission for it to be
available for any subsequent reinsurance year.
[70 FR 44238, Aug. 2, 2005]
[[Page 67]]
Sec. 400.707 Presentation to the Board for approval or disapproval.
(a) The Board will inform the applicant of the date, time, and place
of the Board meeting.
(b) The applicant will be given the opportunity and is encouraged to
present the submission to the Board in person. The applicant must
confirm, in writing, whether the applicant will present the submission
to the Board.
(c) If the applicant elects, at any time, not to present the
submission to the Board, the Board will make its decision based on the
submission and the reviews provided in accordance with Sec. 400.706(b).
[66 FR 47951, Sept. 17, 2001, as amended at 70 FR 44239, Aug. 2, 2005]
Sec. 400.708 Approved submission.
(a) After a submission is approved by the Board, and prior to it
being made available for sale to producers, the following items, as
applicable, must be completed:
(1) If FCIC requires, an agreement between the applicant and FCIC
that specifies:
(i) The responsibilities of each with respect to the implementation,
delivery and oversight of the submission; and
(ii) That the property rights to the submission automatically
transfers to FCIC if the applicant elects not to maintain the submission
and FCIC has paid any amounts under Sec. 400.712.
(2) A reinsurance agreement if terms and conditions differ from the
available existing reinsurance agreements.
(b) A submission approved by the Board under this subpart will be
made available to all approved insurance providers under the same
reinsurance and subsidy terms and conditions as received by the
applicant.
(c) Any solicitation, sales, marketing, or advertising of the
approved submission by the applicant before FCIC has made the submission
and related materials available to all interested parties through its
official issuance system will result in the denial of reinsurance, risk
subsidy, and A&O subsidy for those policies affected.
[66 FR 47951, Sept. 17, 2001, as amended at 70 FR 44239, Aug. 2, 2005]
Sec. 400.709 Roles and responsibilities.
(a) With respect to the applicant:
(1) The applicant is responsible for:
(i) Preparing and ensuring that all policy documents, rates of
premium, and supporting materials, including actuarial documents, are
submitted to FCIC in the form approved by the Board;
(ii) Annually updating and providing maintenance changes no later
than 180 days prior to the earliest contract change date for the
commodity in all counties or states in which the policy or plan of
insurance is sold, unless FCIC assumes maintenance of the product;
(iii) Addressing responses to procedural issues, questions, problems
or clarifications in regard to a policy or plan of insurance (all such
resolutions will be communicated to all approved insurance providers
through FCIC's official issuance system); and
(iv) Annually reviewing the policy's performance and providing a
report on the policy's performance to the Board by each anniversary date
of when the product was first available to be purchased by the public;
(2) Only the applicant may make changes to the policy, plan of
insurance, or rates of premium approved by the Board (Any changes, both
non-significant and significant, must be submitted to FCIC no later than
180 days prior to the earliest contract change date for the commodity in
all counties or states in which the policy of plan of insurance is sold.
Significant changes must be submitted to the Board for review in
accordance with this subpart and will be considered as a new
submission);
(3) Except as provided in paragraph (a)(4) of this section, the
applicant is solely liable for any mistakes, errors, or flaws in the
submitted policy, plan of insurance, their related materials, or the
rates of premium that have been approved by the Board unless the policy
or plan of insurance is transferred to FCIC. The applicant remains
liable for any mistakes, errors, or flaws that occurred prior to
transfer of the policy or plan of insurance to FCIC;
[[Page 68]]
(4) If the mistake, error, or flaw in the policy, plan of insurance,
their related materials, or the rates of premium is discovered not less
than 45 days prior to the cancellation or termination date for the
policy or plan of insurance, the applicant may request in writing that
FCIC withdraw the approved policy, plan of insurance, or rates of
premium:
(i) Such request must state the discovered mistake, error, or flaw
in the policy, plan of insurance, or rates of premium, and the expected
impact on the program; and
(ii) For all timely received requests for withdrawal, no liability
will attach to such policies, plans of insurance, or rates of premium
that have been withdrawn and no producer, approved insurance provider or
any other person will have a right of action against the applicant; and
(5) Notwithstanding the policy provisions regarding cancellation,
any policy, plan of insurance, or rates of premium that have been
withdrawn by the applicant in accordance with paragraph (a)(4) of this
section is deemed canceled and applications deemed not accepted as of
the date that FCIC publishes the notice of withdrawal on its website at
www.rma.usda.gov; and
(i) Approved insurance providers will be notified in writing by FCIC
that the policy, plan of insurance, or premium rates have been
withdrawn; and
(ii) Producers will have the option of selecting any other policy or
plan of insurance authorized under the Act that is available in the area
by the sales closing date for such policy or plan of insurance; and
(6) Failure of the applicant to perform the applicant's
responsibilities may result in the denial of reinsurance for the policy
or plan of insurance.
(b) With respect to FCIC:
(1) FCIC is responsible for:
(i) Conducting the best review of the submission possible in the
time allowed;
(ii) Ensuring that all approved insurance providers receive the
approved policy or plan of insurance, and related material, for sale to
producers in a timely manner (All such information shall be communicated
to all approved insurance providers through FCIC's official issuance
system);
(iii) Ensuring that all approved insurance providers receive
reinsurance under the same terms and conditions as the applicant
(approved insurance providers should contact FCIC to obtain and execute
a copy of the reinsurance agreement) if required; and
(iv) Reviewing the activities of approved insurance providers,
agents, loss adjusters, and producers to ensure that they are in
accordance with the terms of the policy or plan of insurance, the
reinsurance agreement, and all applicable procedures;
(2) The Board may limit the availability of coverage, for any
product developed under the authority of the Act and this regulation, on
any farm or in any county or area;
(3) FCIC will not be liable for any mistakes, errors, or flaws in
the policy, plan of insurance, their related materials, or the rates of
premium and no cause of action will exist against FCIC as a result of
such mistake, error, or flaw in a submission submitted under this
subpart;
(4) If at any time prior to the cancellation date, FCIC discovers
there is a mistake, error, or flaw in the policy, plan of insurance,
their related materials, or the rates of premium, or any other reason
for denial of reinsurance contained in Sec. 400.706(h) exists, FCIC will
deny reinsurance to such policy or plan of insurance. If reinsurance is
denied, a written notice of the denial of reinsurance will be provided
to the approved insurance providers;
(5) If reinsurance is denied under paragraph (b)(4) of this section,
the approved insurance provider will have the option of:
(i) Selling and servicing the policy or plan of insurance at its own
risk and without any subsidy; or
(ii) Canceling the policy or plan of insurance in accordance with
its terms; and
(6) After maintenance of the policy or plan of insurance is
transferred to FCIC, FCIC will be liable for any mistakes, errors, or
flaws that occur after the date the policy or plan of insurance was
transferred.
[70 FR 44239, Aug. 2, 2005]
[[Page 69]]
Sec. 400.710 Preemption and premium taxation.
A policy or plan of insurance that is approved by the Board for FCIC
reinsurance is preempted from state and local taxation.
Sec. 400.711 Right of review, modification, and the withdrawal of
reinsurance.
At any time after approval, the Board may review any policy, plan of
insurance, related material, and rates of premium approved under this
subpart and request additional information to determine whether the
policy, plan of insurance, related material, and rates of premium comply
with statutory or regulatory changes or court orders, are still
actuarially appropriate, and protect program integrity and the interests
of producers. The Board will notify the applicant of any problem or
issue that may arise and allow the applicant an opportunity to make any
needed change. The Board may deny reinsurance for the applicable policy,
plan of insurance or rate of premium if the applicant:
(a) Fails to perform the responsibilities stated under
Sec. 400.709(a); or
(b) Does not satisfactorily provide materials or resolve any issue
so that necessary changes can be made prior to the earliest contract
change date.
[70 FR 44240, Aug. 2, 2005]
Sec. 400.712 Research and development reimbursement, maintenance
reimbursement, and user fees.
(a) For submissions approved by the Board for reinsurance under
section 508(h) of the Act:
(1) If it is determined to be marketable by the Board, the
submission may be eligible for a one-time payment of research and
development costs and reimbursement of maintenance costs for up to four
reinsurance years, as determined by the Board, after the date such costs
have been approved by the Board.
(2) Reimbursement of research and development costs or maintenance
costs will be considered as payment in full by FCIC for the submission.
(3) If the applicant elects at any time not to continue to maintain
the submission, it will automatically become the property of FCIC and
the applicant will no longer have any property rights to the submission.
(b) For submissions submitted to the Board for reinsurance after
publication of the interim rule on September 17, 2001, an estimated
amount of the total cost for reimbursement of research and development
costs and maintenance costs must be included with the original
submission to the Board in accordance with this section. These estimates
will be used by FCIC to evaluate if the interests of producers are
protected and to track potential expenditures and will not provide a
basis for making any reimbursements under this section. Documentation of
actual costs allowed under this section will be used to determine any
reimbursement.
(c) To be eligible for any reimbursement under this section, FCIC
must determine that a submission is marketable.
(d) To be considered for reimbursement of:
(1) Research and development costs, the total of the amount
requested, and all supporting documentation, must be submitted to FCIC
by electronic method or by hard copy and received by FCIC by August 1
immediately following the date the submission was first available to be
purchased by producers;
(2) Maintenance costs, the total of the amount requested, and all
supporting documentation, must be submitted to FCIC by electronic method
or by hard copy and received by FCIC by August 1 of each year of the
maintenance period;
(3) The procedure and time-frame in paragraphs (d)(1) or (2) of this
section, as applicable, must be followed or research and development
costs and maintenance costs may not be reimbursed; and
(4) Given the limitation on funds, regardless of when the request is
received, no payment will be made prior to September 15 of the
applicable fiscal year.
(e) There are limited funds available on an annual fiscal year basis
as contained in the Act. Therefore, requests for reimbursement will not
be considered in the order in which they are received. Consistent with
paragraphs (f),
[[Page 70]]
(g), (h), and (k) of this section, if all applicants' requests for
reimbursement of research and development costs and maintenance costs in
any fiscal year:
(1) Do not exceed the maximum amount authorized by law, the
applicants may receive the full amount of reimbursement authorized under
these paragraphs; and
(2) Exceed the amount authorized by law, each applicant's
reimbursement will be determined by dividing the total amount of each
individual applicants' reimbursable costs authorized in paragraphs (f),
(g), (h), and (k) of this section by the total amount of the aggregate
of all applicants' reimbursable costs authorized in paragraphs (f), (g),
(h), and (k) of this section for that year and multiplying the result by
the amount of reimbursement authorized under the Act.
(f) The amount of reimbursement for research and development costs,
will be determined based on the amount of reimbursement authorized under
paragraph (e) of this section, adjusted for the complexity of the
policy, plan of insurance, or rates of premium, as determined by FCIC,
and the size of the area in which the policy, plan of insurance, or
rates of premium may be offered.
(1) Policies or plans of insurance that offer new and innovative
coverages that are not currently available will be eligible for a higher
reimbursement than policies or plans of insurance that are, or have
components that are, based on existing policies or plans of insurance.
(2) Policies or plans of insurance that offer new premium rating or
market price methodologies will be eligible for a higher reimbursement
than policies or plans of insurance that use existing premium rating or
market price methodologies.
(3) Policies or plans of insurance that cover new commodities that
are not otherwise covered by crop insurance or that offer innovative
coverage and original policy language will be eligible for a higher
reimbursement than policies or plans of insurance for commodities for
which insurance is currently available.
(4) Policies or plans of insurance that may be offered for sale
nationwide or in large geographical regions will be eligible for higher
reimbursement than those that are applicable to only a few counties or
states or a small geographical region.
(5) Any reimbursement under this subpart will be scored as follows:
(i) Complexity scores:
(A) Basic or Common Provisions:
(1) Uses existing policies or plans of insurance: 0.05
(2) Contains modifications to existing policies or plans of
insurance: 0.10
(3) Original (See paragraph (f)(3) of this section): 0.20
(B) Commodity Provisions and Special Provisions:
(1) Uses existing policies or plans of insurance: 0.05
(2) Contains modifications to existing policies or plans of
insurance: 0.10
(3) Original (See paragraph (f)(3) of this section): 0.20
(C) Market prices:
(1) Uses existing policies or plans of insurance: 0.05
(2) Contains modifications to existing policies or plans of
insurance: 0.10
(3) Original (See paragraph (f)(3) of this section): 0.20
(D) Rates of Premium:
(1) Uses existing policies or plans of insurance: 0.05
(2) Contains modifications to existing policies or plans of
insurance: 0.10
(3) Original (See paragraph (f)(3) of this section): 0.20
(E) Underwriting:
(1) Uses existing policies or plans of insurance: 0.05
(2) Contains modifications to existing policies or plans of
insurance: 0.10
(3) Original (See paragraph (f)(3) of this section): 0.20
(ii) Geographic scope scores:
(A) Potential national availability: 0.10
(B) Potential county, state or regional availability: 0.05
(6) Policies or plans of insurance that receive a summed total score
for both complexity and geographic scope that is:
(i) Equal to or greater than 0.6 may receive the full amount of
reimbursement approved by the Board under paragraph (g) of this section;
(ii) Greater than 0.25 but lower than 0.60 will receive a
reimbursement that
[[Page 71]]
is not greater than 75 percent of the full amount of reimbursement
approved by the Board under paragraph (g) of this section; and
(iii) Equal to or less than 0.25 will receive a reimbursement that
is not greater than 50 percent of the full amount of reimbursement
approved by the Board under paragraph (g) of this section.
(g) For those submissions submitted to the Board for approval after
September 17, 2001, research and development costs must be supported by
itemized statements and supporting documentation (copies of contracts,
billing statements, time sheets, travel vouchers, accounting ledgers,
etc.). Actual costs submitted will be examined for reasonableness and
may be adjusted at the sole discretion of the Board.
(1) Allowable research and development expense items (directly
related to research and development of the submission only) may include
the following:
(i) Straight-time hourly wage, exclusive of bonuses, overtime pay,
or shift differentials (One line per employee, include job title, total
hours, and total dollars. Compensation amounts will be compared with the
Occupational Employment Statistics Survey (published each January by the
U.S. Department of Labor, Bureau of Labor Statistics) or other
substantial wage information as deemed appropriate by the Board);
(ii) Benefit cost per employee (Benefit costs are considered
overhead and will be compared with the Employment Cost Index Annual
Employer Cost Survey published each March by the U.S. Department of
Labor, Bureau of Labor Statistics); and
(iii) Contracted expenses if fully disclosed, documented, and:
(A) The applicant provides a copy of the contract, billing
statements, accounting records, etc;
(B) The applicant provides the relationship, if any, between the
applicant and the contractor, such as parent company, subsidiary, etc.
(Reimbursement may be limited or denied if the contractor is closely
associated to the applicant so that they could be considered as one and
the same, such as a separate entity being created by the applicant to
conduct research and development);
(C) The applicant provides any and all other involvement of the
contractor with the applicant, such as being a director, officer,
employee, etc., or having common directors, officers, employers,
employees, etc. (Reimbursement may be reduced or denied if the
contractor is paid a salary or other compensation from the applicant
based on this other involvement); and
(D) The contracted expenses are broken out by line item (including
all persons who make up the contracted party who had a substantive
involvement in the development of the submission), such as:
(1) Individual names;
(2) Rate of pay;
(3) Hours allocated to the submission;
(4) Benefit rate; and
(5) Overhead;
(iv) Professional fees if fully disclosed, documented, and:
(A) The applicant provides the job title, straight-time hourly wage,
total hours, and total dollars;
(B) The applicant provides the relationship, if any, between the
applicant and the professional, such as parent company, subsidiary, etc.
(Reimbursement may be limited or denied if the contractor is closely
associated to the applicant so that they could be considered as one and
the same, such as a separate entity being created by the applicant to
conduct research and development);
(C) The applicant provides any other involvement of the professional
with the applicant, such as being a director, officer, employee, etc.,
or having common directors, officers, employers, employees, etc.
(Reimbursement may be reduced or denied if the contractor is paid a
salary or other compensation from the applicant based on this other
involvement); and
(D) The professional fees are broken out by line item (including all
persons who make up the professional party who had a substantive
involvement in the development of the submission), such as;
(1) Individual names;
(2) Rate of pay;
(3) Hours allocated to the submission;
(4) Benefit rate; and
[[Page 72]]
(5) Overhead;
(v) Travel and transportation (One line per event, include the job
title, destination, purpose of travel, lodging cost, mileage, air or
other identified transportation costs, food and miscellaneous expenses,
other costs, and the total cost);
(vi) Software and computer programming developed specifically to
determine appropriate rates, prices, or coverage amounts (Identify the
item, include the purpose, and provide receipts or contract or straight-
time hourly wage, hours, and total cost.) Software developed to send or
receive data between the producer, agent, approved insurance provider or
RMA or such other similar software may not be included as an allowable
cost); and
(vii) Miscellaneous expenses such as postage, telephone, express
mail, and printing (Identify the item, cost per unit, number of items,
and total dollars); and
(2) The following expenses are specifically not eligible for
research and development and maintenance cost reimbursement:
(i) Copyright or patent fees;
(ii) Training costs;
(iii) State filing fees and expenses;
(iv) Normal ongoing administrative expenses;
(v) Paid or incurred losses;
(vi) Loss adjustment expenses;
(vii) Sales commission;
(viii) Marketing costs;
(ix) Indirect overhead costs;
(x) Lobbying costs;
(xi) Product or applicant liability resulting from the research,
development, preparation or marketing of the policy;
(xii) Copyright infringement claims resulting from the research,
development, preparation or marketing of the policy;
(xiii) Costs of making program changes as a result of any mistakes,
errors or flaws in the policy or plan of insurance; and
(xiv) Costs associated with building rents or space allocation.
(h) Requests for reimbursement of maintenance costs for submissions
approved after September 17, 2001, must be supported by itemized
statements and supporting documentary evidence for each reinsurance year
in the maintenance period. Actual costs submitted will be examined for
reasonableness and may be adjusted at the sole discretion of the Board.
Maintenance costs for the following activities may be reimbursed:
(1) Expansion of the original submission into additional counties or
states;
(2) Non-significant changes to the policy and any related material;
(3) Non-significant or significant changes to the policy as
necessary to protect program integrity or as required by Congress; and
(4) Any other activity that qualifies as maintenance.
(i) If the applicant does not reasonably demonstrate that the
submission meets the marketing plan or does not follow the criteria set
forth in this regulation, the product may be withdrawn at the discretion
of the Board and no further maintenance reimbursement will be paid.
(j) Not later than six months prior to the end of the last
reinsurance year in which a maintenance reimbursement will be paid, as
approved by the Board, the applicant must notify FCIC regarding its
election of the treatment of the policy or plan of insurance for
subsequent reinsurance years.
(1) The applicant must notify FCIC whether it intends to:
(i) Continue to maintain the policy or plan of insurance and charge
approved insurance providers a user fee to cover maintenance expenses
for all policies earning premium. It is the sole responsibility of the
applicant to collect such fees from the approved insurance providers and
any indebtedness for such fees must be resolved by the applicant and
approved insurance provider. Applicants may request that FCIC provide
the number of policies sold by each approved insurance provider. Such
information will be provided not later than 90 days after such request
is made or not later than 90 days after the requisite information has
been provided to FCIC by the approved insurance provider, whichever is
later; or
(ii) Transfer responsibility for maintenance to FCIC.
(2) If the applicant elects to:
[[Page 73]]
(i) Continue to maintain the policy or plan of insurance, the
applicant must submit a request for approval of the user fee by the
Board at the time of the election; or
(ii) Transfer the policy or plan of insurance to FCIC, FCIC may at
its sole discretion, continue to maintain the policy or plan or
insurance or elect to withdraw the availability of the policy or plan of
insurance.
(3) Requests for approval of the user fee must be accompanied by
written documentation to support that the amount requested will only
cover maintenance costs.
(4) The Board will approve the amount of user fee that is payable to
the applicant by approved insurance providers unless the Board
determines that the user fee charged:
(i) Is unreasonable in relation to the maintenance costs associated
with the policy or plan of insurance; or
(ii) Unnecessarily inhibits the use of the policy or plan of
insurance by other approved insurance providers.
(5) Reasonableness of the user fees will be determined by the Board
based on a comparison with the amount of reimbursement for maintenance
previously received, the number of policies, the number of approved
insurance providers, and the expected total amount of user fees to be
received in any reinsurance year.
(6) A user fee unnecessarily inhibits the use of a policy or plan of
insurance if it is so high that other approved insurance providers are
unable to pay such fees because of the volume of business currently
underwritten by the approved insurance provider.
(7) The user fee charged to each approved insurance provider will be
considered payment in full for the use of such policy, plan of insurance
or rate of premium for the reinsurance year in which payment is made.
(8) If the applicant does not notify FCIC at least six months prior
to the last day of the last reinsurance year in which a maintenance
reimbursement will be paid, as approved by the Board, ownership of the
policy or plan of insurance will be automatically transferred to FCIC
beginning with the next reinsurance year.
(k) The Board may consider information from the Equal Access to
Justice Act, 5 U.S.C. 504, the Bureau of Labor Statistic's Occupational
Employment Statistics Survey, the Bureau of Labor Statistic's Employment
Cost Index, and any other information determined applicable by the
Board, in making a determination whether to approve a submission for
reimbursement of research and development costs, or maintenance costs
under this section or the amount of reimbursement.
(l) For the purposes of this section, rights to, or obligations of,
research and development cost reimbursement, maintenance cost
reimbursement, or user fees cannot be transferred from any individual or
entity unless specifically approved in writing by the Board.
(m) Notwithstanding the definition in Sec. 400.701, the maintenance
period ends for an approved submission once the applicant no longer
performs the maintenance responsibilities, as determined by FCIC, or the
applicant gives FCIC notice they no longer wish to maintain the
submission.
(n) Applicants requesting reimbursement for research and development
costs, maintenance costs, or user fees, may present their request in
person to the Board prior to consideration for approval.
[66 FR 47951, Sept. 17, 2001, as amended at 70 FR 44241, Aug. 2, 2005]
Sec. 400.713 Nonreinsured supplemental (NRS) policy.
(a) Unless notified by FCIC, three hard copies, or an electronic
copy in a format approved by RMA, of the new or revised NRS policy and
related materials must be submitted to the Deputy Administrator,
Research and Development (or successor), Risk Management Agency, 6501
Beacon Drive, Stop 0812, Kansas City, MO 64133-4676, at least 120 days
prior to the first sales closing date applicable to the policy.
(b) FCIC will review the NRS policy to determine that it does not
materially increase or shift risk to the underlying policy or plan of
insurance reinsured by FCIC, reduce or limit the rights of the insured
with respect to
[[Page 74]]
the underlying policy or plan of insurance, or cause disruption in the
marketplace for products reinsured by FCIC.
(1) An NRS policy will be considered to disrupt the marketplace if
it adversely affects the sales or administration of reinsured policies,
undermines producers' confidence in the Federal crop insurance program,
decreases the producer's willingness or ability to use Federally
reinsured risk management products, or harms public perception of the
Federal crop insurance program.
(2) The applicant, at a minimum, must provide worksheets and
examples that establish liability and determine indemnities that
demonstrate the performance of the NRS policy under differing scenarios.
When the review is complete, FCIC will forward their findings to the
applicant.
(c) If the approved insurance provider sells an NRS policy that RMA
determines materially increases or shifts risk to the underlying FCIC
reinsured policy, reduces or limits the rights of the insured with
respect to the underlying policy, or causes disruption in the
marketplace for products reinsured by FCIC, reinsurance, A&O subsidy and
risk subsidy will be denied on the underlying FCIC reinsured policy for
which such NRS policy was sold.
(d) FCIC will respond to the submitter not less than 60 days before
the first sales closing date or provide notice why FCIC is unable to
respond within the time frame allotted.
[70 FR 44242, Aug. 2, 2005]
Subpart W [Reserved]
Subpart X_Interpretations of Statutory and Regulatory Provisions
Source: 63 FR 70313, Dec. 21, 1998, unless otherwise noted.
Sec. 400.765 Basis and applicability.
(a) The regulations contained in this subpart prescribe the rules
and criteria for obtaining a final agency determination of the
interpretation of any provision of the Act or the regulations
promulgated thereunder.
(b) Requesters may seek interpretations of those provisions of the
Act and the regulations promulgated thereunder that are in effect for
the crop year in which the request under this subpart is being made and
the three previous crop years.
(c) All final agency determinations issued by FCIC, and published in
accordance with Sec. 400.768(f), will be binding on all participants in
the Federal crop insurance program.
[63 FR 70313, Dec. 21, 1998, as amended at 64 FR 50246, Sept. 16, 1999]
Sec. 400.766 Definitions.
Act. The Federal Crop Insurance Act, 7 U.S.C. 1501 et seq.
FCIC. The Federal Crop Insurance Corporation, a wholly owned
government corporation within the United States Department of
Agriculture.
Participant. Any applicant for crop insurance, a producer with a
valid crop insurance policy, or a private insurance company with a
reinsurance agreement with FCIC or their agents, loss adjusters,
employees or contractors.
Regulations. All provisions contained in 7 CFR chapter IV.
Sec. 400.767 Requester obligations.
(a) All requests for a final agency determination under this subpart
must:
(1) Be submitted:
(i) In writing by certified mail, to the Associate Administrator,
Risk Management Agency, United States Department of Agriculture, Stop
Code 0801, 1400 Independence Avenue, SW., Washington, DC 20250-0801;
(ii) By facsimile at (202) 690-9911;
(iii) By electronic mail at [email protected]; or
(iv) By overnight delivery to the Associate Administrator, Risk
Management Agency, United States Department of Agriculture, Stop 0801,
Room 6092-S, 1400 Independence Avenue, SW., Washington DC 20250.
(2) State that it is being submitted under section 506(s) of the
Act;
(3) Identify and quote the specific provision in the Act or
regulations for which a final agency determination is requested;
(4) State the crop year for which the interpretation is sought;
[[Page 75]]
(5) State the name, address, and telephone number of a contact
person affiliated with the request; and
(6) Contain the requester's detailed interpretation of the
regulation.
(b) The requestor must advise FCIC if the request for a final agency
determination will be used in a lawsuit or the settlement of a claim.
(c) Each request for final agency determination under this subpart
must contain no more than one request for an agency interpretation.
[63 FR 70313, Dec. 21, 1998, as amended at 64 FR 50246, Sept. 16, 1999;
71 FR 2135, Jan. 13, 2006; 74 FR 66029, Dec. 14, 2009]
Sec. 400.768 FCIC obligations.
(a) FCIC will not interpret any specific factual situation or case,
such as actions of any participant under the terms of a policy or any
reinsurance agreement.
(b) If, in the sole judgement of FCIC, the request is unclear,
ambiguous, or incomplete, FCIC will not provide an interpretation, but
will notify the requester that the request is unclear, ambiguous or
incomplete, within 30 days of such request.
(c) FCIC will provide a final determination of the interpretation to
a request that meets all the conditions stated herein to the requester
in writing, and at FCIC's discretion in the format in which it was
received, within 90 days of the date of receipt by FCIC.
(d) If a requestor is notified that a request is unclear, ambiguous
or incomplete under section 400.768(b), the time to respond will be
tolled from the date FCIC notifies the requestor until the date that
FCIC receives a clear, complete, and unambiguous request.
(e) If a response is not provided within 90 days, the requestor may
assume the interpretation provided is correct for the applicable crop
year.
(f) All agency final determinations will be published by FCIC as
specially numbered documents on the RMA Internet website.
(g) All final agency determinations are considered matters of
general applicability that are not appealable to the National Appeals
Division. Before obtaining judicial review of any final agency
determination, the person must obtain an administratively final
determination from the Director of the National Appeals division on the
issue of whether the final agency determination is a matter of general
applicability.
PART 401 [RESERVED]
PART 402_CATASTROPHIC RISK PROTECTION ENDORSEMENT
Sec.
402.1 General statement.
402.2 Applicability.
402.3 OMB control numbers.
402.4 Catastrophic Risk Protection Endorsement Provisions.
Authority: 7 U.S.C. 1506(l), 1506(o).
Source: 61 FR 42985, Aug. 20, 1996, unless otherwise noted.
Sec. 402.1 General statement.
The Federal Crop Insurance Act, as amended by the Federal Crop
Insurance Reform Act of 1994, requires the Federal Crop Insurance
Corporation to implement a catastrophic risk protection plan of
insurance that provides a basic level of insurance coverage to protect
producers in the event of a catastrophic crop loss due to loss of yield
or prevented planting, if provided by the Corporation, provided the crop
loss or prevented planting is due to an insured cause of loss specified
in the crop insurance policy. This Catastrophic Risk Protection
Endorsement is a continuous endorsement that is effective in conjunction
with a crop insurance policy for the insured crop. Catastrophic risk
protection coverage will be offered through approved insurance providers
if there are a sufficient number available to service the area. If there
are an insufficient number available, as determined by the Secretary,
local offices of the Farm Service Agency will provide catastrophic risk
protection coverage.
Sec. 402.2 Applicability.
This Catastrophic Risk Protection Endorsement is applicable to each
crop for which catastrophic risk protection coverage is available and
for which the producer elects such coverage.
[[Page 76]]
Sec. 402.3 OMB control numbers.
The information collection activity associated with this rule has
been approved by the Office of Management and Budget (OMB) pursuant to
the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) under OMB
control number 0563-0053.
[61 FR 42985, Aug. 20, 1996, as amended at 69 FR 48730, Aug. 10, 2004]
Sec. 402.4 Catastrophic Risk Protection Endorsement Provisions.
Department of Agriculture
Federal Crop Insurance Corporation
Catastrophic Risk Protection Endorsement
(This is a continuous endorsement)
If a conflict exists among the policy, the order of priority is: (1)
This Endorsement; (2) Special Provisions; (3) actuarial documents; (4)
the Commodity Exchange Price Provisions, if applicable; and (5) any of
the policies specified in section 2, with (1) controlling (2), etc.
Terms and Conditions
1. Definitions
Insurance provider. A private insurance company that has been
approved by FCIC to provide insurance coverage to producers
participating in programs authorized by the Federal Crop Insurance Act.
Zero acreage report. An acreage report filed by you that certifies
you do not have a share in the crop for that crop year.
2. Eligibility, Life of Policy, Cancellation, and Termination
(a) You must have one of the following policies in force to elect
this Endorsement:
(1) The Common Crop Insurance Policy Basic Provisions (7 CFR 457.8)
and applicable Crop Provisions (catastrophic risk protection coverage is
not available under individual revenue plans of insurance such as
Revenue Protection and Revenue Protection with Harvest Price Exclusion);
(2) The Area Risk Protection Insurance Basic Provisions (7 CFR
407.9) and applicable Crop Provisions (catastrophic risk protection
coverage is not available under area revenue plans of insurance such as
Area Revenue Protection or Area Revenue Protection with the Harvest
Price Exclusion); or
(3) Other crop policies only if catastrophic risk protection
coverage is provided in the applicable crop policy.
(b) You must have made application for catastrophic risk protection
on or before the sales closing date for the crop in the county.
(c) You must be a ``person'' as defined in the crop policy to be
eligible for catastrophic risk protection coverage.
3. Unit Division
(a) This section is not applicable if you are insured under the Area
Risk Protection Insurance Basic Provisions (7 CFR 407.9) and applicable
Crop Provisions.
(b) This section is in lieu of the unit provisions specified in the
applicable crop policy. For catastrophic risk protection coverage, a
unit will be all insurable acreage of the insured crop in the county on
the date coverage begins for the crop year:
(1) In which you have one hundred percent (100%) crop share; or
(2) Which is owned by one person and operated by another person on a
share basis.
(Example: If, in addition to the land you own, you rent land from
five landlords, three on a crop share basis and two on a cash basis, you
would be entitled to four units; one for each crop share lease and one
that combines the two cash leases and the land you own.)
(c) Further division of the units described in paragraph (b) above
is not allowed under this Endorsement.
4. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) Unless otherwise specified in the Special Provisions,
catastrophic risk protection coverage will offer protection equal to:
(1) Fifty percent (50%) of your approved yield indemnified at fifty-
five percent (55%) of the price election or projected price, as
applicable, if you are insured under the Common Crop Insurance Policy
Basic Provisions (7 CFR 457.8) and applicable Crop Provisions;
(2) Sixty-five percent (65%) of the expected county yield
indemnified at forty-five percent (45%) of the maximum protection per
acre if you are insured under the Area Risk Protection Insurance Basic
Provisions (7 CFR 407.9) and applicable Crop Provisions; or
(3) A comparable coverage as established by FCIC for other crop
policies only if catastrophic risk protection coverage is provided in
the applicable crop policy.
(b) If the crop policy denominates coverage in dollars per acre or
other measure, or any other alternative method of coverage, such
coverage will be converted to the amount of coverage that would be
payable at fifty percent (50%) of your approved yield indemnified at
fifty-five percent (55%) of the price election.
(c) You may elect catastrophic coverage for any crop insured or
reinsured by FCIC on either an individual yield and loss basis or an
area yield and loss basis, if both options are offered as set out in the
Special Provisions.
[[Page 77]]
5. Report of Acreage
(a) The report of crop acreage that you file in accordance with the
crop policy must be signed on or before the acreage reporting date. For
catastrophic risk protection, unless the other person with an insurable
interest in the crop objects in writing prior to the acreage reporting
date and provides a signed acreage report on their own behalf, the
operator may sign the acreage report for all other persons with an
insurable interest in the crop without a power of attorney. All persons
with an insurable interest in the crop, and for whom the operator
purports to sign and represent, are bound by the information contained
in that acreage report.
(b) For the purpose of determining the amount of indemnity only,
your share will not exceed your insurable interest at the earlier of the
time of loss or the beginning of harvest. Unless the accepted
application clearly indicates that insurance is requested for a
partnership or joint venture, insurance will only cover the crop share
of the person completing the application. The share will not extend to
any other person having an interest in the crop except as may otherwise
be specifically allowed in this endorsement. Any acreage or interest
reported by or for your spouse, child or any member of your household
may be considered your share. A lease containing provisions for both a
minimum payment (such as a specified amount of cash, bushels, pounds,
etc.) and a crop share will be considered a crop share lease. A lease
containing provisions for either a minimum payment (such as a specified
amount of cash, bushels, pounds, etc.,) or a crop share will be
considered a cash lease. Land rented for cash, a fixed commodity
payment, or any consideration other than a share in the insured crop on
such land will be considered as owned by the lessee.
6. Annual Premium and Administrative Fees
(a) Notwithstanding any provision contained in any other policy
document, you will not be responsible to pay a premium, nor will the
policy be terminated because the premium has not been paid. FCIC will
pay a premium subsidy equal to the premium established for the coverage
provided under this endorsement.
(b) In return for catastrophic risk protection coverage, you must
pay an administrative fee to us within 30 days after you have been
billed, unless otherwise authorized in the Federal Crop Insurance Act
(You will be billed by the date stated in the actuarial documents);
(1) The administrative fee owed is $300 for each crop in the county
unless otherwise specified in the Special Provisions.
(2) Payment of an administrative fee will not be required if you
file a bona fide zero acreage report on or before the acreage reporting
date for the crop (if you falsely file a zero acreage report you may be
subject to criminal and administrative sanctions).
(c) The administrative fee provisions of paragraph (b) of this
section do not apply if you meet the definition of a limited resource
farmer specified in the applicable crop policy. The administrative fee
will be waived if you request it and you meet the requirements contained
in the annual premium provisions of the applicable crop policy.
(d) When a crop policy has provisions to allow you the option to
separately insure individual crop types or varieties, you must pay a
separate administrative fee in accordance with paragraph (b) of this
section for each type or variety you elect to separately insure.
(e) If the administrative fee is not paid when due, you, and all
persons with an insurable interest in the crop under the same contract,
may be ineligible for certain other USDA program benefits.
7. Insured Crop
The crop insured is specified in the applicable crop policy;
however, for policies other than those insured under the Area Risk
Protection Insurance Basic Provisions, notwithstanding any other policy
provision requiring the same insurance coverage on all insurable acreage
of the crop in the county, if you purchase additional coverage for a
crop, you may separately insure acreage designated as ``high-risk'' land
by FCIC under catastrophic risk protection coverage, provided that you
execute a High-Risk Land Exclusion Option and obtain a catastrophic risk
protection coverage policy with the same insurance provider on or before
the applicable sales closing date. You will be required to pay a
separate administrative fee for both the additional coverage policy and
the catastrophic risk protection coverage policy.
8. Replanting Payment
Notwithstanding any provision contained in any other crop insurance
document, no replant payment will be paid whether or not replanting of
the crop is required under the policy.
9. Claim for Indemnity
If two or more insured crop types, varieties, or classes are insured
within the same unit, and multiple price elections, projected prices, or
amounts of insurance are applicable, the dollar amount of insurance and
the dollar amount of production to be counted will be determined
separately for each type, variety, class, etc., that have separate price
elections, projected prices, or amounts of insurance and then totaled to
determine the total liability or dollar amount of production to be
counted for the unit.
[[Page 78]]
10. Concealment or Fraud
Notwithstanding any provision contained in any other crop insurance
document, your CAT policy may be voided by us on all crops without
waiving any of our rights, including the right to collect any amounts
due:
(a) If at any time you conceal or misrepresent any material fact or
commit fraud relating to this or any other contract issued under the
authority of the Federal Crop Insurance Act with any insurance provider;
and
(b) The voidance will be effective for the crop year during which
any such act or omission occurred.
11. Exclusion of Coverage
(a) Options or endorsements that extend the coverage available under
any crop policy offered by FCIC will not be available under this
endorsement. Written agreements are not available for any crop insured
under this endorsement.
(b) Notwithstanding any provision contained in any other crop
policy, hail and fire coverage and high-risk land may not be excluded
under catastrophic risk protection.
[61 FR 42985, Aug. 20, 1996, as amended at 63 FR 40631, July 30, 1998;
64 FR 40740, July 28, 1999; 65 FR 40484, June 30, 2000; 69 FR 48730,
Aug. 10, 2004; 73 FR 36408, June 27, 2008; 73 FR 70864, Nov. 24, 2008;
78 FR 52835, Aug. 27, 2013]
PARTS 403-406 [RESERVED]
PART 407_AREA RISK PROTECTION INSURANCE REGULATIONS
Sec.
407.1 Applicability.
407.2 Availability of Federal crop insurance.
407.3 Premium rates, amounts of protection, and coverage levels.
407.4 OMB control numbers.
407.5 Creditors.
407.6 [Reserved]
407.7 The contract.
407.8 The application and policy.
407.9 Area risk protection insurance policy.
407.10 Area risk protection insurance for barley.
407.11 Area risk protection insurance for corn.
407.12 Area risk protection insurance for cotton.
407.13 Area risk protection insurance for forage.
407.14 Area risk protection insurance for peanuts.
407.15 Area risk protection insurance for grain sorghum.
407.16 Area risk protection insurance for soybean.
407.17 Area risk protection insurance for wheat.
Authority: 7 U.S.C. 1506(l), 1506(o).
Source: 78 FR 38507, June 26, 2013, unless otherwise noted.
Sec. 407.1 Applicability.
The provisions of this part are applicable only to those crops for
which a Crop Provision is contained in this part and the crop years
specified.
Sec. 407.2 Availability of Federal crop insurance.
(a) Insurance shall be offered under the provisions of this part on
the insured crop in counties within the limits prescribed by and in
accordance with the provisions of the Federal Crop Insurance Act (7
U.S.C. 1501-1524) (Act). The crops and counties shall be designated by
the Manager of the Federal Crop Insurance Corporation (FCIC) from those
approved by the Board of Directors of FCIC.
(b) The insurance is offered through insurance providers reinsured
by the FCIC that offer contracts containing the same terms and
conditions as the contract set out in this part. These contracts are
clearly identified as being reinsured by FCIC. FCIC may offer the
contract for coverage contained in this part and part 402 of this
chapter directly to the insured through the Department of Agriculture if
the Secretary determines that the availability of local agents is not
adequate. Those contracts are specifically identified as being offered
by FCIC.
(c) No person may have in force more than one insurance policy
issued or reinsured by FCIC on the same crop for the same crop year, in
the same county, unless specifically approved in writing by FCIC.
(d) Except as specified in paragraph (c) of this section, if a
person has more than one contract authorized under the Act that provides
coverage for the same loss on the same crop for the same crop year in
the same county, all such contracts shall be voided for that crop year
and the person will be liable for the premium on all contracts, unless
the person can show to the satisfaction of the FCIC that the multiple
contracts of insurance were without the fault of the person.
[[Page 79]]
(1) If the multiple contracts of insurance are shown to be without
the fault of the person and:
(i) One contract is an additional coverage policy and the other
contract is a Catastrophic Risk Protection policy, the additional
coverage policy will apply if both policies are with the same insurance
provider, or if not, both insurance providers agree, and the
Catastrophic Risk Protection policy will be canceled (If the insurance
providers do not agree, the policy with the earliest date of application
will be in force and the other contract will be canceled); or
(ii) Both contracts are additional coverage policies or both are
Catastrophic Risk Protection policies, the contract with the earliest
signature date on the application will be valid and the other contract
on that crop in the county for that crop year will be canceled, unless
both policies are with the same insurance provider and the insurance
provider agrees otherwise or both policies are with different insurance
providers and both insurance providers agree otherwise.
(2) No liability for indemnity or premium will attach to the
contracts canceled as specified in paragraphs (d)(1)(i) and (ii) of this
section.
(e) The person must repay all amounts received in violation of this
section with interest at the rate contained in the contract (see
Sec. 407.9, section 22).
(f) A person whose contract with FCIC or with an insurance provider
reinsured by FCIC under the Act has been terminated because of violation
of the terms of the contract is not eligible to obtain crop insurance
under the Act with FCIC or with an insurance provider reinsured by FCIC
unless the person can show that the termination was improper and should
not result in subsequent ineligibility.
(g) All applicants for insurance under the Act must advise the
insurance provider, in writing at the time of application, of any
previous applications for insurance or contracts of insurance under the
Act within the last 5 years and the present status of any such
applications or insurance.
Sec. 407.3 Premium rates, amounts of protection, and coverage levels.
(a) The Manager of FCIC shall establish premium rates, amounts of
protection, and coverage levels for the insured crop that will be
included in the actuarial documents on file in the agent's office.
Premium rates, amounts of protection, and coverage levels may be changed
from year to year in accordance with the terms of the policy.
(b) At the time the application for insurance is made, the person
must elect an amount of protection and a coverage level from among those
contained in the actuarial documents for the crop year.
Sec. 407.4 OMB control numbers.
The information collection activity associated with this rule has
been submitted to OMB for their review and approval.
Sec. 407.5 Creditors.
An interest of a person in an insured crop existing by virtue of a
lien, mortgage, garnishment, levy, execution, bankruptcy, involuntary
transfer or other similar interest shall not entitle the holder of the
interest to any benefit under the contract.
Sec. 407.6 [Reserved]
Sec. 407.7 The contract.
(a) The insurance contract shall become effective upon the
acceptance by FCIC or the insurance provider of a complete, duly
executed application for insurance on a form prescribed or approved by
FCIC.
(b) The contract shall consist of the accepted application, Area
Risk Protection Insurance Basic Provisions, Crop Provisions, Special
Provisions, Actuarial Documents, and any amendments, endorsements, or
options thereto.
(c) Changes made in the contract shall not affect its continuity
from year to year.
(d) No indemnity shall be paid unless the person complies with all
terms and conditions of the contract.
(e) The forms required under this part and by the contract are
available at the office of the insurance provider,
[[Page 80]]
or such other location as specified by FCIC, if applicable.
Sec. 407.8 The application and policy.
(a) Application for insurance, developed in accordance with
standards established by FCIC, must be made by any person who wishes to
participate in the program in order to cover such person's share in the
insured crop as landlord, owner-operator, tenant, or other crop
ownership interest.
(1) No other person's interest in the crop may be insured under the
application.
(2) To obtain coverage, the application must be submitted to the
insurance provider on or before the applicable sales closing date on
file in the insurance provider's local office.
(b) FCIC or the insurance provider may reject, no longer accept
applications, or cancel existing insurance contracts upon the FCIC's
determination that the insurance risk is excessive. Such determination
must be made not later than 15 days before the cancellation date for the
crop and may be made on an area, county, state, or crop basis.
Sec. 407.9 Area risk protection insurance policy.
This insurance is available for the 2014 and succeeding years.
[FCIC policies]
Department of Agriculture
Federal Crop Insurance Corporation
Area Risk Protection Insurance Policy
[Reinsured policies]
(Appropriate title for insurance provider)
(This is a continuous policy. Refer to Section 2.)
[FCIC policies]
Area Risk Protection Insurance (ARPI) provides protection against
widespread loss of revenue or widespread loss of yield in a county.
Individual farm revenues and yields are not considered under ARPI and it
is possible that your individual farm may experience reduced revenue or
reduced yield and you do not receive an indemnity under ARPI.
This is an insurance policy issued by the FCIC, a United States
government agency, under the provisions of the Federal Crop Insurance
Act (7 U.S.C. 1501-1524) (Act). All provisions of the policy and rights
and responsibilities of the parties are specifically subject to the Act.
The provisions of the policy may not be waived or modified in any way by
us, your insurance agent or any employee of USDA. Procedures (handbooks,
underwriting rules, manuals, memoranda, and bulletins), issued by us and
published on the Risk Management Agency's (RMA) Web site at http://
www.rma.usda.gov/ or a successor Web site, will be used in the
administration of this policy, including the adjustment of any loss or
claim submitted hereunder. Throughout this policy, ``you'' and ``your''
refer to the insured shown on the accepted application and ``we,''
``us,'' and ``our'' refer to FCIC. Unless the context indicates
otherwise, the use of the plural form of a word includes the singular
and the singular form of the word includes the plural.
AGREEMENT TO INSURE: In return for the commitment to pay a premium,
and subject to all of the provisions of this policy, we agree with you
to provide the insurance as stated in this policy. If there is a
conflict among the Act, the regulations published at 7 CFR chapter IV,
and the procedures as issued by us, the order of priority is: (1) the
Act; (2) the regulations; and (3) the procedures as issued by us, with
(1) controlling (2), etc. If there is a conflict between the policy
provisions published at 7 CFR part 407 and the administrative
regulations published at 7 CFR part 400, the policy provisions published
at 7 CFR part 407 control. The order of priority among the policy is:
(1) the Catastrophic Risk Protection Endorsement, as applicable; (2)
Special Provisions; (3) actuarial documents; (4) the applicable
Commodity Exchange Price Provisions; (5) the Crop Provisions; and (6)
these Basic Provisions, with (1) controlling (2), etc.
[Reinsured policies]
Area Risk Protection Insurance (ARPI) provides protection against
widespread loss of revenue or widespread loss of yield in a county.
Individual farm revenues and yields are not considered under ARPI and it
is possible that your individual farm may experience reduced revenue or
reduced
[[Page 81]]
yield and not receive an indemnity under ARPI.
This insurance policy is reinsured by the FCIC under the provisions
of Subtitle A of the Federal Crop Insurance Act (7 U.S.C. 1501-1524)
(Act). All provisions of the policy and rights and responsibilities of
the parties are specifically subject to the Act. The provisions of the
policy may not be waived or varied in any way by us, our insurance agent
or any other contractor or employee of ours or any employee of USDA. We
will use the procedures (handbooks, underwriting rules, manuals,
memoranda, and bulletins), as issued by FCIC and published on the Risk
Management Agency (RMA's) Web site at http://www.rma.usda.gov/ or a
successor Web site, in the administration of this policy, including the
adjustment of any loss or claim submitted hereunder. In the event that
we cannot pay your loss because we are insolvent or are otherwise unable
to perform our duties under our reinsurance agreement with FCIC, FCIC
will become your insurer, make all decisions in accordance with the
provisions of this policy, including any loss payments, and be
responsible for any amounts owed. No state guarantee fund will be liable
for your loss.
Throughout this policy, ``you'' and ``your'' refer to the insured
shown on the accepted application and ``we,'' ``us,'' and ``our'' refer
to the insurance provider providing insurance. Unless the context
indicates otherwise, the use of the plural form of a word includes the
singular and the singular form of the word includes the plural.
AGREEMENT TO INSURE: In return for the commitment to pay a premium,
and subject to all of the provisions of this policy, we agree with you
to provide the insurance as stated in this policy. If there is a
conflict among the Act, the regulations published at 7 CFR chapter IV,
and the procedures as issued by FCIC, the order of priority is: (1) the
Act; (2) the regulations; and (3) the procedures as issued by FCIC, with
(1) controlling (2), etc. If there is a conflict between the policy
provisions published at 7 CFR part 407 and the administrative
regulations published at 7 CFR part 400, the policy provisions published
at 7 CFR part 407 control. The order of priority among the policy is:
(1) the Catastrophic Risk Protection Endorsement, as applicable; (2)
Special Provisions; (3) actuarial documents; (4) Commodity Exchange
Price Provisions; (5) the Crop Provisions; and (6) these Basic
Provisions, with (1) controlling (2), etc.
Terms and Conditions
Basic Provisions
1. Definitions
Abandon. Failure to continue to care for the crop, or providing care
so insignificant as to provide no benefit to the crop.
Acreage report. A report required by section 8 of these Basic
Provisions that contains, in addition to other required information,
your report of your share of all acreage of an insured crop in the
county, whether insurable or not insurable.
Acreage reporting date. The date contained in the actuarial
documents by which you are required to submit your acreage report.
Act. Subtitle A of the Federal Crop Insurance Act (7 U.S.C. 1501-
1524).
Actuarial documents. The part of the policy that contains
information for the crop year which is available for public inspection
in your agent's office and published on RMA's Web site, http://
www.rma.usda.gov/, and which shows available plans of insurance,
coverage levels, information needed to determine amounts of insurance,
prices, premium rates, premium adjustment percentages, type (commodity
types, classes, subclasses, intended uses), practice (irrigated
practices, cropping practices, organic practices, intervals), insurable
acreage, and other related information regarding crop insurance in the
county.
Additional coverage. A level of coverage greater than catastrophic
risk protection.
Administrative fee. An amount you must pay for catastrophic risk
protection, and additional coverage for each crop year as specified in
section 7 of these provisions, the Catastrophic Risk Protection
Endorsement, or the Special Provisions, as applicable.
Agricultural experts. Persons who are employed by the Cooperative
Extension
[[Page 82]]
System or the agricultural departments of universities, or other persons
approved by FCIC, whose research or occupation is related to the
specific crop or practice for which such expertise is sought. Persons
who have a personal or financial interest in you or the crop will not
qualify as an agricultural expert. For example, contracting with a
person for consulting would be considered to have a financial interest
and a person who is a neighbor would be considered to have a personal
interest.
Application. The form required to be completed by you and accepted
by us before insurance coverage will commence. This form must be
completed and filed in your agent's office not later than the sales
closing date of the initial insurance year for each crop for which
insurance coverage is requested.
Area. The general geographical region in which the insured acreage
is located, designated generally as a county but may be a smaller or
larger geographical area as specified in the actuarial documents.
Area Revenue Protection. A plan of insurance that provides
protection against loss of revenue due to a county level production
loss, a price decline, or a combination of both. This plan also includes
upside harvest price protection, which increases your policy protection
at the end of the insurance period if the harvest price is greater than
the projected price and if there is a production loss.
Area Revenue Protection with the Harvest Price Exclusion. A plan of
insurance that provides protection against loss of revenue due to a
county level production loss, price decline, or a combination of both.
This plan does not provide upside harvest price protection.
Area Risk Protection Insurance (ARPI). Insurance coverage based on
an area, not an individual, yield or revenue amount. There are three
plans of insurance available under ARPI: Area Revenue Protection, Area
Revenue Protection with the Harvest Price Exclusion, and Area Yield
Protection.
Area Yield Protection. A plan of insurance that provides protection
against loss of yield due to a county level production loss. This plan
does not provide protection against loss of revenue or upside harvest
price protection.
Assignment of indemnity. A transfer of policy rights, made on our
form, and effective when approved by us in writing, whereby you assign
your right to an indemnity payment for the crop year only to creditors
or other persons to whom you have a financial debt or other pecuniary
obligation.
Buffer zone. A parcel of land, as designated in your organic plan,
that separates commodities grown under organic practices from
commodities grown under non-organic practices, and used to minimize the
possibility of unintended contact by prohibited substances or organisms.
Cancellation date. The calendar date specified in the Crop
Provisions on which coverage for the crop will automatically renew
unless canceled in writing by either you or us or terminated in
accordance with the policy terms.
Catastrophic risk protection (CAT). Coverage equivalent to 65
percent of yield coverage and 45 percent of price coverage, unless
otherwise specified in the Special Provisions, and is the minimum level
of coverage offered by FCIC, as specified in the actuarial documents for
the crop, type, and practice. CAT is not available with Area Revenue
Protection or Area Revenue Protection with the Harvest Price Exclusion.
Catastrophic Risk Protection Endorsement. The part of the crop
insurance policy that contains provisions of insurance that are specific
to CAT.
Certified organic acreage. Acreage in the certified organic farming
operation that has been certified by a certifying agent as conforming to
organic standards in accordance with 7 CFR part 205.
Certifying agent. A private or governmental entity accredited by the
USDA Secretary of Agriculture for the purpose of certifying a
production, processing or handling operation as organic.
Class. A specific subgroup of commodity type.
Code of Federal Regulations (CFR). The codification of general rules
published in the Federal Register by the Executive departments and
agencies of the Federal Government. Rules published in the Federal
Register by FCIC are contained in 7 CFR chapter IV. The full
[[Page 83]]
text of the CFR is available in electronic format at http://
ecfr.gpoaccess.gov/.
Commodity. An agricultural good or product that has economic value.
Commodity Exchange Price Provisions (CEPP). A part of the policy
that is used for crops for which ARPI is available, unless otherwise
specified. This document includes the information necessary to derive
the projected and harvest price for the insured crop, as applicable.
Commodity type. A specific subgroup of a commodity having a
characteristic or set of characteristics distinguishable from other
subgroups of the same commodity.
Consent. Approval in writing by us allowing you to take a specific
action.
Contract. (See ``Policy'')
Contract change date. The calendar date, as specified in the Crop
Provisions, by which changes to the policy, if any, will be made
available in accordance with section 3 of these Basic Provisions.
Conventional farming practice. A system or process that is necessary
to produce a commodity, excluding organic farming practices.
Cooperative Extension System. A nationwide network consisting of a
state office located at each state's land-grant university, and local or
regional offices. These offices are staffed by one or more agricultural
experts who work in cooperation with the National Institute of Food and
Agriculture, and who provide information to agricultural producers and
others.
County. Any county, parish, political subdivision of a state, or
other area specified on the actuarial documents shown on your accepted
application, including acreage in a field that extends into an adjoining
county if the county boundary is not readily discernible.
Cover crop. A crop generally recognized by agricultural experts as
agronomically sound for the area for erosion control or other purposes
related to conservation or soil improvement. A cover crop may be
considered to be a second crop.
Credible data. Data of sufficient quality and quantity to be
representative of the county.
Crop. The insurable commodity as defined in the Crop Provisions.
Cropping practice. A method of using a combination of inputs such as
fertilizer, herbicide, and pesticide, and operations such as planting,
cultivation, etc. to produce the insured crop. The insurable cropping
practices are specified in the actuarial documents.
Crop Provisions. The part of the policy that contains the specific
provisions of insurance for each insured crop.
Crop year. The period within which the insured crop is normally
grown and designated by the calendar year in which the crop is normally
harvested.
Days. Calendar days.
Delinquent debt. Has the same meaning as the term defined in 7 CFR
part 400, subpart U.
Dollar amount of insurance per acre. The guarantee calculated by
multiplying the expected county yield by the projected price and by the
protection factor. Your dollar amount of insurance per acre is shown on
your Summary of Protection. Following release of the harvest price, your
dollar amount of insurance may increase if Area Revenue Protection was
purchased and the harvest price is greater than the projected price.
Double crop. Producing two or more crops for harvest on the same
acreage in the same crop year.
Expected county revenue. The expected county yield multiplied by the
projected price.
Expected county yield. The yield, established in accordance with
section 15, contained in the actuarial documents on which your coverage
for the crop year is based.
FCIC. The Federal Crop Insurance Corporation, a wholly owned
corporation within USDA.
Final county revenue. The revenue determined by multiplying the
final county yield by the harvest price with the result used to
determine whether an indemnity will be due for Area Revenue Protection
and Area Revenue Protection with the Harvest Price Exclusion, and
released by FCIC at a time specified in the Crop Provisions.
Final county yield. The yield, established in accordance with
section 15,
[[Page 84]]
for each insured crop, type, and practice, used to determine whether an
indemnity will be due for Area Yield Protection, and released by FCIC at
a time specified in the Crop Provisions.
Final planting date. The date contained in the actuarial documents
for the insured crop by which the crop must be planted in order to be
insured.
Final policy protection. For Area Revenue Protection only, the
amount calculated in accordance with section 12(e).
First insured crop. With respect to a single crop year and any
specific crop acreage, the first instance that a commodity is planted
for harvest or prevented from being planted and is insured under the
authority of the Act. For example, if winter wheat that is not insured
is planted on acreage that is later planted to soybeans that are
insured, the first insured crop would be soybeans. If the winter wheat
was insured, it would be the first insured crop.
FSA. The Farm Service Agency, an agency of the USDA, or a successor
agency.
FSA farm number. The number assigned to the farm by the local FSA
office.
Generally recognized. When agricultural experts or organic
agricultural experts, as applicable, are aware of the production method
or practice and there is no genuine dispute regarding whether the
production method or practice allows the crop to make normal progress
toward maturity.
Good farming practices. The production methods utilized to produce
the insured crop, type, and practice and allow it to make normal
progress toward maturity, which are: (1) for conventional or sustainable
farming practices, those generally recognized by agricultural experts
for the area; or (2) for organic farming practices, those generally
recognized by organic agricultural experts for the area or contained in
the organic plan. We may, or you may request us to, contact FCIC to
determine whether or not production methods will be considered to be
``good farming practices.''
Harvest price. A price determined in accordance with the CEPP and
used to determine the final county revenue.
Household. A domestic establishment including the members of a
family (parents, brothers, sisters, children, spouse, grandchildren,
aunts, uncles, nieces, nephews, first cousins, or grandparents, related
by blood, adoption or marriage, are considered to be family members) and
others who live under the same roof.
Insurable interest. Your percentage of the insured crop that is at
financial risk.
Insurable loss. Damage for which coverage is provided under the
terms of your policy, and for which you accept an indemnity payment.
Insurance provider. A private insurance company that has been
approved by FCIC to provide insurance coverage to producers
participating in programs authorized by the Act.
Insured. The named person as shown on the application accepted by
us. This term does not extend to any other person having an insurable
interest in the crop (e.g., a partnership, landlord, or any other
person) unless specifically indicated on the accepted application.
Insured crop. The crop in the county for which coverage is available
under your policy as shown on the application accepted by us.
Intended use. The expected end use or disposition of the commodity
at the time the commodity is reported.
Interval. A period of time designated in the actuarial documents.
Irrigated practice. A method of producing a crop by which water,
from an adequate water source, is artificially applied in sufficient
amounts by appropriate and adequate irrigation equipment and facilities
and at the proper times necessary to produce at least the (1) yield
expected for the area; (2) yield used to establish the production
guarantee or amount of insurance/coverage on the irrigated acreage
planted to the commodity; or (3) producer's established approved yield,
as applicable. Acreage adjacent to water, such as but not limited to a
pond, lake, river, stream, creek or brook, shall not be considered
irrigated based solely on the proximity to the water. The insurable
irrigation practices are specified in the actuarial documents.
Liability. (See ``Policy protection.'')
[[Page 85]]
Limited resource farmer. Has the same meaning as the term defined by
USDA at http://www.lrftool.sc.egov.usda.gov or a successor Web site.
Loss limit factor. Unless otherwise specified in the Special
Provisions a factor of .18 is used to calculate the payment factor. This
factor represents the percentage of the expected county yield or
expected county revenue at which no additional indemnity amount is
payable. For example, if the expected county yield is 100 bushels and
the final county yield is 18 bushels, then no additional indemnity is
due even if the yield falls below 18 bushels. The total indemnity will
never be more than 100 percent of the final policy protection.
NASS. National Agricultural Statistics Service, an agency within
USDA, or its successor, that publishes the official United States
Government yield estimates.
Native sod. Acreage that has no record of being tilled (determined
in accordance with FSA or other verifiable records acceptable to us) for
the production of an annual crop on or before May 22, 2008, and on which
the plant cover is composed principally of native grasses, grass-like
plants, forbs, or shrubs suitable for grazing and browsing.
Offset. The act of deducting one amount from another amount.
Organic agricultural experts. Persons who are employed by the
following organizations: Appropriate Technology Transfer for Rural
Areas, Sustainable Agriculture Research and Education or the Cooperative
Extension System, the agricultural departments of universities, or other
persons approved by FCIC, whose research or occupation is related to the
specific organic crop or practice for which such expertise is sought.
Organic crop. A commodity that is organically produced consistent
with section 2103 of the Organic Foods Act of 1990 (7 U.S.C. 6502).
Organic farming practice. A system of plant production practices
used to produce an organic crop that is approved by a certifying agent
in accordance with 7 CFR part 205.
Organic plan. A written plan, in accordance with the National
Organic Program published in 7 CFR part 205, that describes the organic
farming practices that you and a certifying agent agree upon annually or
at such other times as prescribed by the certifying agent.
Organic practice. The insurable organic farming practices specified
in the actuarial documents.
Organic standards. Standards in accordance with the Organic Foods
Production Act of 1990 (7 U.S.C. 6501 et seq.) and 7 CFR part 205.
Payment factor. A factor no greater than 1.0 used to determine the
amount of indemnity to be paid in accordance with section 12(g).
Perennial crop. A plant, bush, tree or vine crop that has a life
span of more than one year.
Person. An individual, partnership, association, corporation,
estate, trust, or other legal entity, and wherever applicable, a State
or a political subdivision or agency of a State. ``Person'' does not
include the United States Government or any agency thereof.
Planted acreage. Except as otherwise specified in the Special
Provisions, land in which seed, plants, or trees have been placed,
appropriate for the insured crop and planting method, at the correct
depth, into a seedbed that has been properly prepared for the planting
method and production practice in accordance with good farming practices
for the area.
Policy. The agreement between you and us to insure a commodity and
consisting of the accepted application, these Basic Provisions, the Crop
Provisions, the Special Provisions, the CEPP, other applicable
endorsements or options, the actuarial documents for the insured
commodity, the CAT Endorsement, if applicable, and the applicable
regulations published in 7 CFR chapter IV. Insurance for each commodity
in each county will constitute a separate policy.
Policy protection. The liability amount calculated in accordance
with section 6(f) unless otherwise specified in the Special Provisions.
Practice. Production methodologies used to produce the insured crop
consisting of unique combinations of irrigated practice, cropping
practice, organic practice, and interval as shown
[[Page 86]]
on the actuarial documents as insurable.
Prairie Pothole National Priority Area. Consists of specific
counties within the States of Iowa, Minnesota, Montana, North Dakota,
South Dakota, or any other county as specified on the RMA's Web site at
http://www.rma.usda.gov/, or a successor Web site, or the Farm Service
Agency, Agricultural Resource Conservation Program 2-CRP (Revision 4),
dated April 28, 2008, or a subsequent publication.
Premium billing date. The earliest date upon which you will be
billed for insurance coverage based on your acreage report. The premium
billing date is contained in the actuarial documents.
Production report. A written record showing your annual production
in accordance with section 8. The report contains yield information for
the current year, including acreage and production. This report must be
supported by written verifiable records from a warehouseman or buyer of
the insured crop, by measurement of farm-stored production, or by other
records of production approved by us in accordance with FCIC approved
procedures.
Production reporting date. The date contained in the actuarial
documents by which you are required to submit your production report.
Prohibited substance. Any biological, chemical, or other agent that
is prohibited from use or is not included in the organic standards for
use on any certified organic, transitional or buffer zone acreage. Lists
of such substances are contained at 7 CFR part 205.
Projected price. A price for each crop, type, and practice as shown
in the actuarial documents, as applicable, determined in accordance with
the CEPP, Special Provisions or the Crop Provisions, as applicable.
Protection factor (PF). The percentage you choose that is used to
calculate the dollar amount of insurance per acre and policy protection.
Replanted crop. The same commodity replanted on the same acreage as
the first insured crop for harvest in the same crop year. ARPI does not
have a replant provision, therefore, it is only used for first and
second crop determinations.
RMA. Risk Management Agency, an agency within USDA.
RMA's Web site. A Web site hosted by RMA and located at http://
www.rma.usda.gov/ or a successor Web site.
Sales closing date. The date contained in the actuarial documents by
which an application must be filed and the last date by which you may
change your crop insurance coverage for a crop year.
Second crop. With respect to a single crop year, the next occurrence
of planting any commodity for harvest following a first insured crop on
the same acreage. The second crop may be the same or a different
commodity as the first insured crop, except the term does not include a
replanted crop. A cover crop, planted after a first insured crop and
planted for the purpose of haying, grazing or otherwise harvesting in
any manner or that is hayed or grazed during the crop year, or that is
otherwise harvested is considered to be a second crop. A cover crop that
is covered by FSA's noninsured crop disaster assistance program (NAP) or
receives other USDA benefits associated with forage crops will be
considered as planted for the purpose of haying, grazing or otherwise
harvesting. A crop meeting the conditions stated herein will be
considered to be a second crop regardless of whether or not it is
insured.
Share. Your insurable interest in the insured crop as an owner,
operator, or tenant.
Special Provisions. The part of the policy that contains specific
provisions of insurance for each insured crop that may vary by
geographic area, and is available for public inspection in your agent's
office and published on RMA's Web site.
State. The state shown on your accepted application.
Subclass. A specific subgroup of class.
Subsidy. The portion of the total premium that FCIC will pay in
accordance with the Act.
Subsidy factor. The percentage of the total premium paid by FCIC as
a subsidy.
Substantial beneficial interest. An interest held by any person of
at least 10
[[Page 87]]
percent in you (e.g., there are two partnerships that each have a 50
percent interest in you and each partnership is made up of two
individuals, each with a 50 percent share in the partnership. In this
case, each individual would be considered to have a 25 percent interest
in you, and both the partnerships and the individuals would have a
substantial beneficial interest in you. The spouses of the individuals
would not be considered to have a substantial beneficial interest unless
the spouse was one of the individuals that made up the partnership.
However, if each partnership is made up of six individuals with equal
interests, then each would only have an 8.33 percent interest in you and
although the partnership would still have a substantial beneficial
interest in you, the individuals would not for the purposes of reporting
in section 2). The spouse of any individual applicant or individual
insured will be presumed to have a substantial beneficial interest in
the applicant or insured unless the spouses can prove they are legally
separated or otherwise legally separate under the applicable state
dissolution of marriage laws. Any child of an individual applicant or
individual insured will not be considered to have a substantial
beneficial interest in the applicant or insured unless the child has a
separate legal interest in such person.
Summary of protection. Our statement to you specifying the insured
crop, dollar amount of insurance per acre, policy protection, premium
and other information obtained from your accepted application, acreage
report, and the actuarial documents.
Sustainable farming practice. A system or process for producing a
commodity, excluding organic farming practices, that is necessary to
produce the crop and is generally recognized by agricultural experts for
the area to conserve or enhance natural resources and the environment.
Tenant. A person who rents land from another person for a share of
the crop or a share of the proceeds of the crop (see the definition of
``share'' above).
Termination date. The calendar date contained in the Crop Provisions
upon which your insurance ceases to be in effect because of nonpayment
of any amount due us under the policy.
Tilled. The termination of existing plants by plowing, disking,
burning, application of chemicals, or by other means to prepare acreage
for the production of an annual crop.
Total premium. The amount of premium before subsidy, calculated in
accordance with section 7(e)(1).
Transitional acreage. Acreage on which organic farming practices are
being followed that does not yet qualify to be designated as organic
acreage.
Trigger revenue. The revenue amount calculated in accordance with
section 12(b).
Trigger yield. The yield amount calculated in accordance with
section 12(c).
Type. Categories of the insured crop consisting of unique
combinations of commodity type, class, subclass, and intended use as
shown on the actuarial documents as insurable.
Upside harvest price protection. Coverage provided automatically
under the Area Revenue Protection plan of insurance. This coverage
increases your final policy protection when the harvest price is greater
than the projected price. This coverage is not available under either
the Area Revenue Protection with the Harvest Price Exclusion or the Area
Yield Protection plans of insurance.
USDA. United States Department of Agriculture.
Verifiable records. Has the same meaning as the term defined in 7
CFR part 400, subpart G.
Void. When the policy is considered not to have existed for a crop
year.
Volatility factor. A measure of variation of price over time found
in the actuarial documents.
2. Life of Policy, Cancellation, and Termination
(a) This is a continuous policy and will remain in effect for each
crop year following the acceptance of the original application until
canceled by you in accordance with the terms of the policy or terminated
by operation of the terms of the policy or by us. In accordance with
section 3, FCIC may change the coverage provided from year to year.
[[Page 88]]
(b) The following information must be included on your application
for insurance or your application will not be accepted and no coverage
will be provided:
(1) Your election of Area Revenue Protection, Area Revenue
Protection with the Harvest Price Exclusion, or Area Yield Protection;
(2) The crop with all type and practice combinations insured as
shown on the actuarial documents;
(3) Your elected coverage level;
(4) Your elected protection factor;
(5) Identification numbers for you as follows:
(i) You must include your social security number (SSN) if you are an
individual (if you are an individual applicant operating as a business,
you must provide an employer identification number (EIN) and you must
also provide your SSN); or
(ii) You must include your EIN if you are a person other than an
individual;
(6) Identification numbers for all persons who have a substantial
beneficial interest in you:
(i) The SSN for individuals; or
(ii) The EIN for persons other than individuals and the SSNs for all
individuals that comprise the person with the EIN if such individuals
also have a substantial beneficial interest in you; and
(7) All other information required on the application to insure the
crop.
(c) With respect to SSNs or EINs required on your application:
(1) Your application will not be accepted and no insurance will be
provided for the year of application if the application does not contain
your SSN or EIN. If your application contains an incorrect SSN or EIN
for you, your application will be considered not to have been accepted,
no insurance will be provided for the year of application and for any
subsequent crop years, as applicable, and such policies will be void if:
(i) Such number is not corrected by you; or
(ii) You correct the SSN or EIN but:
(A) You cannot prove that any error was inadvertent (Simply stating
the error was inadvertent is not sufficient to prove the error was
inadvertent); or
(B) It is determined that the incorrect number would have allowed
you to obtain disproportionate benefits under the crop insurance
program, you are determined to be ineligible for insurance or you could
avoid an obligation or requirement under any State or Federal law;
(2) With respect to persons with a substantial beneficial interest
in you:
(i) The insurance coverage for all crops included on your
application will be reduced proportionately by the percentage interest
in you of persons with a substantial beneficial interest in you
(presumed to be 50 percent for spouses of individuals) if the SSNs or
EINs of such persons are included on your application, the SSNs or EINs
are correct, and the persons with a substantial beneficial interest in
you are ineligible for insurance;
(ii) Your policies for all crops included on your application, and
for all applicable crop years, will be void if the SSN or EIN of any
person with a substantial beneficial interest in you is incorrect or is
not included on your application and:
(A) Such number is not corrected or provided by you, as applicable;
(B) You cannot prove that any error or omission was inadvertent
(Simply stating the error or omission was inadvertent is not sufficient
to prove the error or omission was inadvertent); or
(C) Even after the correct SSN or EIN is provided by you, it is
determined that the incorrect or omitted SSN or EIN would have allowed
you to obtain disproportionate benefits under the crop insurance
program, the person with a substantial beneficial interest in you is
determined to be ineligible for insurance, or you or the person with a
substantial beneficial interest in you could avoid an obligation or
requirement under any State or Federal law; or
(iii) Except as provided in sections 2(c)(2)(ii)(B) and (C), your
policies will not be voided if you subsequently provide the correct SSN
or EIN for persons with a substantial beneficial interest in you and the
persons are eligible for insurance;
(d) When any of your policies are void under section 2(c):
(1) You must repay any indemnity that may have been paid for all
applicable crops and crop years;
[[Page 89]]
(2) Even though the policies are void, you will still be required to
pay an amount equal to 20 percent of the premium that you would
otherwise be required to pay; and
(3) If you previously paid premium or administrative fees, any
amount in excess of the amount required in section 2(d)(2) will be
returned to you.
(e) Notwithstanding any of the provisions in this section, you may
be subject to civil, criminal or administrative sanctions if you certify
to an incorrect SSN or EIN or any other information under this policy.
(f) If any of the information regarding persons with a substantial
beneficial interest in you, changes:
(1) After the sales closing date for the previous crop year, you
must revise your application by the sales closing date for the current
crop year to reflect the correct information; or
(2) Less than 30 days before the sales closing date for the current
crop year, you must revise your application by the sales closing date
for the next crop year;
(3) And you fail to provide the required revisions, the provisions
in section 2(c)(2) will apply; and
(g) If you are, or a person with a substantial beneficial interest
in you is, not eligible to obtain an SSN or EIN, whichever is required,
you must request an assigned number for the purposes of this policy from
us:
(1) A number will be provided only if you can demonstrate you are,
or a person with a substantial beneficial interest in you is, eligible
to receive Federal benefits;
(2) If a number cannot be provided for you in accordance with
section (2)(g)(1), your application will not be accepted; or
(3) If a number cannot be provided for any person with a substantial
beneficial interest in you in accordance with section 2(g)(1), the
amount of coverage for all crops on the application will be reduced
proportionately by the percentage interest of such person in you.
(h) After acceptance of the application, you may not cancel this
policy for the initial crop year unless you choose to insure the entire
crop under another Federally reinsured plan of insurance with the same
insurance provider on or before the sales closing date. After the first
year, the policy will continue in force for each succeeding crop year
unless canceled, voided or terminated as provided in this section.
(i) Either you or we may cancel this policy after the initial crop
year by providing written notice to the other on or before the
cancellation date shown in the Crop Provisions.
(j) Any amount due to us for any policy authorized under the Act
will be offset from any indemnity due you for this or any other crop
insured with us under the authority of the Act.
(1) Even if your claim has not yet been paid, you must still pay the
premium and administrative fee on or before the termination date for you
to remain eligible for insurance.
(2) If we offset any amount due us from an indemnity owed to you,
the date of payment for the purpose of determining whether you have a
delinquent debt will be the date FCIC publishes the final county yield
for the applicable crop year.
(k) A delinquent debt for any policy will make you ineligible to
obtain crop insurance authorized under the Act for any subsequent crop
year and result in termination of all policies in accordance with
section 2(k)(2).
(1) With respect to ineligibility:
(i) Ineligibility for crop insurance will be effective on:
(A) The date that a policy was terminated in accordance with section
2(k)(2) for the crop for which you failed to pay premium, an
administrative fee, or any related interest owed, as applicable;
(B) The payment due date contained in any notification of
indebtedness for overpaid indemnity and any other amounts due, including
but not limited to, premium billed with a due date after the termination
date for the crop year in which premium is earned, if you fail to pay
the amount owed, including any related interest owed, as applicable, by
such due date;
(C) The termination date for the crop year prior to the crop year in
which a scheduled payment is due under a written payment agreement if
you fail to pay the amount owed by any payment
[[Page 90]]
date in any agreement to pay the debt; or
(D) The termination date the policy was or would have been
terminated under section 2(k)(2)(i)(A), (B) or (C) if your bankruptcy
petition is dismissed before discharge.
(ii) If you are ineligible and a policy has been terminated in
accordance with section 2(k)(2), you will not receive any indemnity, and
such ineligibility and termination of the policy may affect your
eligibility for benefits under other USDA programs. Any indemnity that
may be owed for the policy before it has been terminated will remain
owed to you, but may be offset in accordance with section 2(j), unless
your policy was terminated in accordance with sections 2(k)(2)(i)(A),
(B), (D), or (E).
(2) With respect to termination:
(i) Termination will be effective on:
(A) For a policy with unpaid administrative fees or premiums, the
termination date immediately subsequent to the premium billing date for
the crop year (For policies for which the sales closing date is prior to
the termination date, such policies will terminate for the current crop
year even if insurance attached prior to the termination date. Such
termination will be considered effective as of the sales closing date
and no insurance will be considered to have attached for the crop year
and no indemnity will be owed);
(B) For a policy with other amounts due, including but not limited
to, premium billed with a due date after the termination date for the
crop year in which premium is earned, the termination date immediately
following the date you have a delinquent debt (For policies for which
the sales closing date is prior to the termination date, such policies
will terminate for the current crop year even if insurance attached
prior to the termination date. Such termination will be considered
effective as of the sales closing date and no insurance will be
considered to have attached for the crop year and no indemnity will be
owed);
(C) For all other policies that are issued by us under the authority
of the Act, the termination date that coincides with the termination
date for the policy with the delinquent debt, or if there is no
coincidental termination date, the termination date immediately
following the date you become ineligible;
(D) For execution of a written payment agreement and failure to make
any scheduled payment, the termination date for the crop year prior to
the crop year in which you failed to make the scheduled payment (for
this purpose only, the crop year will start the day after the
termination date and end on the next termination date, e.g., if the
termination date is November 30 and you fail to make a payment on
November 15, 2011, your policy will terminate on November 30, 2010, for
the 2011 crop year); or
(E) For dismissal of a bankruptcy petition before discharge, the
termination date the policy was or would have been terminated under
section 2(k)(2)(i)(A), (B), (C).
(ii) For all policies terminated under section 2(k)(2)(i)(A), (B),
(D), or (E), any indemnities paid subsequent to the termination date
must be repaid.
(iii) Once the policy is terminated, it cannot be reinstated for the
current crop year unless the termination was in error. Failure to timely
pay because of illness, bad weather, or other such extenuating
circumstances is not grounds for reinstatement in the current crop year.
(3) To regain eligibility, you must:
(i) Repay the delinquent debt in full;
(ii) Execute a written payment agreement and make payments in
accordance with the agreement (we will not enter into a written payment
agreement with you if you have previously failed to make a scheduled
payment under the terms of any other payment agreement with us or any
other insurance provider); or
(iii) File a petition to have your debts discharged in bankruptcy
(Dismissal of the bankruptcy petition before discharge will terminate
all policies in effect retroactive to the date your policy would have
been terminated in accordance with section 2(k)(2)(i).)
(4) If you are determined to be ineligible under section 2(k),
persons with a substantial beneficial interest in you may also be
ineligible until you become eligible again.
[[Page 91]]
(l) In cases where there has been a death, disappearance, judicially
declared incompetence, or dissolution of any insured person:
(1) If any married insured dies, disappears, or is judicially
declared incompetent, the insured on the policy will automatically
convert to the name of the spouse if:
(i) The spouse was included on the policy as having a substantial
beneficial interest in the insured; and
(ii) The spouse has a share of the crop.
(2) The provisions in section 2(l)(3) will only be applicable if:
(i) Any partner, member, shareholder, etc., of an insured entity
dies, disappears, or is judicially declared incompetent, and such event
automatically dissolves the entity; or
(ii) An individual whose estate is left to a beneficiary other than
a spouse or left to the spouse and the criteria in section 2(l)(1) are
not met, dies, disappears, or is judicially declared incompetent.
(3) If the death, disappearance, or judicially declared incompetence
occurred:
(i) More than 30 days before the cancellation date, the policy is
automatically canceled as of the cancellation date and a new application
must be submitted; or
(ii) Thirty days or less before the cancellation date, or on after
the cancellation date, the policy will continue in effect through the
crop year immediately following the cancellation date and be
automatically canceled as of the cancellation date immediately following
the end of the insurance period for the crop year, unless canceled by
the cancellation date prior to the start of the insurance period:
(A) A new application for insurance must be submitted on or before
the sales closing date for coverage for the subsequent crop year; and
(B) Any indemnity will be paid to the person or persons determined
to be beneficially entitled to the payment provided such person or
persons comply with all policy provisions and timely pays the premium.
(4) If any insured entity is dissolved for reasons other than death,
disappearance, or judicially declared incompetence:
(i) Before the cancellation date, the policy is automatically
canceled as of the cancellation date and a new application must be
submitted; or
(ii) On or after the cancellation date, the policy will continue in
effect through the crop year immediately following the cancellation date
and be automatically canceled as of the cancellation date immediately
following the end of the insurance period for the crop year, unless
canceled by the cancellation date prior to the start of the insurance
period.
(A) A new application for insurance must be submitted on or before
the sales closing date for coverage for the subsequent crop year; and
(B) Any indemnity will be paid to the person or persons determined
to be beneficially entitled to the payment provided such person or
persons comply with all policy provisions and timely pays the premium.
(5) If section 2(k)(2) or (4) applies, a remaining member of the
insured person or the beneficiary is required to report to us the death,
disappearance, judicial incompetence, or other event that causes
dissolution of the entity not later than the next cancellation date,
except if section 2(k)(3)(ii) applies, notice must be provided by the
cancellation date for the next crop year.
(m) We may cancel your policy if no premium is earned for 3
consecutive years.
(n) The cancellation and termination dates are contained in the Crop
Provisions.
(o) Any person may sign any document relative to crop insurance
coverage on behalf of any other person covered by such a policy,
provided that the person has a properly executed power of attorney or
such other legally sufficient document authorizing such person to sign.
You are still responsible for the accuracy of all information provided
on your behalf and may be subject to the consequences in section 8(g),
and any other consequences, including administrative, criminal or civil
sanctions, if any information has been misreported.
[[Page 92]]
(p) If voidance, cancellation or termination of insurance coverage
occurs for any reason, including but not limited to indebtedness,
suspension, debarment, disqualification, cancellation by you or us or
your policy is voided due to a conviction of the controlled substance
provisions of the Food Security Act of 1985 or Title 21, a new
application must be filed for the crop.
(1) Insurance coverage will not be provided if you are ineligible
under the contract or under any Federal statute or regulation.
(2) Since applications for crop insurance cannot be accepted after
the sales closing date, if you make any payment, or you otherwise become
eligible, after the sales closing date, you cannot apply for insurance
until the next crop year. For example, for the 2012 crop year, if crop
A, with a termination date of October 31, 2012, and crop B, with a
termination date of March 15, 2013, are insured and you do not pay the
premium for crop A by the termination date, you are ineligible for crop
insurance as of October 31, 2012, and crop A's policy is terminated as
of that date. Crop B's policy does not terminate until March 15, 2013,
and an indemnity for the 2012 crop year may still be owed. You will not
be eligible to apply for crop insurance for any crop until after the
amounts owed are paid in full or you file a petition to discharge the
debt in bankruptcy.
3. Contract Changes
(a) We may change the terms and conditions of this policy from year
to year.
(b) Any changes in policy provisions, the CEPP, amounts of
insurance, expected county yields, premium rates, and program dates can
be viewed on RMA's Web site not later than the contract change date
contained in the Crop Provisions. We may only revise this information
after the contract change date to correct obvious errors (e.g., the
expected county revenue for a county was announced at $2,500 per acre
instead of $250 per acre).
(c) After the contract change date, all changes specified in section
3(b) will also be available upon request from your crop insurance agent.
(d) Not later than 30 days prior to the cancellation date for the
insured crop you will be provided, in accordance with section 20, a copy
of the changes to the Basic Provisions, Crop Provisions, CEPP, if
applicable, and Special Provisions.
(e) Acceptance of all the changes will be conclusively presumed in
the absence of notice from you to change or cancel your insurance
coverage.
4. Insured Crop
(a) The insured crop will be that shown on your accepted application
and as specified in the Crop Provisions or Special Provisions, and must
be grown on insurable acreage.
(b) A crop which will NOT be insured will include, but will not be
limited to, any crop:
(1) That is not grown on planted acreage;
(2) That is a type not generally recognized for the area;
(3) For which the information necessary for insurance (projected
price, expected county yield, premium rate, etc.) is not included in the
actuarial documents;
(4) That is a volunteer crop;
(5) Planted following the same crop on the same acreage and the
first planting of the crop has been harvested in the same crop year
unless specifically permitted by the Crop Provisions or the Special
Provisions (For example, the second planting of grain sorghum would not
be insurable if grain sorghum had already been planted and harvested on
the same acreage during the crop year);
(6) That is planted for experimental purposes; or
(7) That is used solely for wildlife protection or management. If
the lease states that specific acreage must remain unharvested, only
that acreage is uninsurable. If the lease specifies that a percentage of
the crop must be left unharvested, your share will be reduced by such
percentage.
(c) Although certain policy documents may state that a specific
crop, type, or practice is not insurable, it does not mean all other
crops, types, or practices are insurable. To be insurable, the use of
such crop, type, or
[[Page 93]]
practice must be a good faming practice, have been widely used in the
county, and meet all the conditions in the Basic Provisions, the Crop
Provisions, Special Provisions, and the actuarial documents.
5. Insurable Acreage
(a) Except as provided in section 5(c), the insurable acreage is all
of the acreage of the insured crop for which a premium rate is provided
by the actuarial documents, in which you have a share, and which is
planted in the county listed on your accepted application. The dollar
amount of insurance per acre, amount of premium, and indemnity will be
calculated separately for each crop, type, and practice shown on the
actuarial documents.
(1) The acreage must have been planted and harvested (grazing is not
considered harvested for the purposes of this section) or insured
(excluding pasture, rangeland, and forage, vegetation and rainfall
insurance or any other specific policy listed in the Special Provisions)
in at least one of the three previous crop years unless:
(i) Such acreage was not planted:
(A) In at least two of the three previous crop years to comply with
any other USDA program;
(B) Due to the crop rotation, the acreage would not have been
planted in the previous three years (e.g., a crop rotation of corn,
soybeans, and alfalfa; and the alfalfa remained for four years before
the acreage was planted to corn again); or
(C) Because a perennial crop was on the acreage in at least two of
the previous three crop years;
(ii) Such acreage constitutes five percent or less of the insured
planted acreage of the crop, type and practice as shown on the actuarial
documents in the county;
(iii) Such acreage was not planted or harvested because it was
pasture or rangeland and the crop to be insured is also pasture or
rangeland; or
(iv) The Crop Provisions or Special Provisions specifically allow
insurance for such acreage.
(b) Only the acreage planted to the insured crop on or before the
final planting date, as shown in the actuarial documents, and reported
by the acreage reporting date and physically located in the county shown
on your accepted application will be insured.
(c) We will not insure any acreage (and any uninsured acreage and
production from uninsured acreage will not be included for the purposes
of establishing the final county yield):
(1) Where the crop was destroyed or put to another use during the
crop year for the purpose of conforming with, or obtaining a payment
under, any other program administered by the USDA;
(2) Where we determine you have failed to follow good farming
practices for the insured crop;
(3) Where the conditions under which the crop is planted are not
generally recognized for the area (for example, where agricultural
experts determine that planting a non-irrigated corn crop after a failed
small grain crop on the same acreage in the same crop year is not
appropriate for the area);
(4) Of a second crop, if you elect not to insure such acreage when
an indemnity for a first insured crop may be subject to reduction in
accordance with the provisions of section 13 and you intend to collect
an indemnity payment that is equal to 100 percent of the insurable loss
for the first insured crop acreage. This election must be made for all
first insured crop acreage that may be subject to an indemnity reduction
if the first insured crop is insured under this policy, or on a first
insured crop unit basis if the first insured crop is not insured under
this policy (e.g., if the first insured crop under this policy consists
of 40 acres, or the first insured crop unit insured under another policy
contains 40 planted acres, then no second crop can be insured on any of
the 40 acres). In this case:
(i) If the first insured crop is insured under ARPI, you must
provide written notice to us of your election not to insure acreage of a
second crop by the acreage reporting date for the second crop if it is
insured under ARPI, or before planting the second crop if it is insured
under any other policy;
(ii) If the first insured crop is not insured under ARPI, at the
time the first insured crop acreage is released by us
[[Page 94]]
or another insurance provider who insures the first insured crop (if no
acreage in the first insured crop unit is released, this election must
be made by the earlier of acreage reporting date for the second crop or
when you sign the claim for the first insured crop);
(iii) If you fail to provide a notice as specified in section
5(c)(5)(i) or 5(c)(5)(ii), the second crop acreage will be insured in
accordance with applicable policy provisions and you must repay any
overpaid indemnity for the first insured crop;
(iv) In the event a second crop is planted and insured with a
different insurance provider, or planted and insured by a different
person, you must provide written notice to each insurance provider that
a second crop was planted on acreage on which you had a first insured
crop; and
(v) You must report the crop acreage that will not be insured on the
applicable acreage report; and
(5) Of a crop planted following a second crop or following an
insured crop that is prevented from being planted after a first insured
crop, unless it is a practice that is generally recognized by
agricultural experts or organic agricultural experts for the area to
plant three or more crops for harvest on the same acreage in the same
crop year, and additional coverage insurance provided under the
authority of the Act is offered for the third or subsequent crop in the
same crop year. Insurance will only be provided for a third or
subsequent crop as follows:
(i) You must provide records acceptable to us that show:
(A) You have produced and harvested the insured crop following two
other crops harvested on the same acreage in the same crop year in at
least two of the last four years in which you produced the insured crop;
or
(B) The applicable acreage has had three or more crops produced and
harvested on it in the same crop year in at least two of the last four
years in which the insured crop was grown on the acreage; and
(ii) The amount of insurable acreage will not exceed 100 percent of
the greatest number of acres for which you provide the records required
in section 5(c)(5)(i).
(d) If the Governor of a State designated within the Prairie Pothole
National Priority Area elects to make section 508(o) of the Act
effective for the State, any native sod acreage greater than five acres
located in a county contained within the Prairie Pothole National
Priority Area that has been tilled after May 22, 2008, is not insurable
for the first five crop years of planting following the date the native
sod acreage is tilled.
(1) If the Governor makes this election after you have received an
indemnity or other payment for native sod acreage, you will be required
to repay the amount received and any premium for such acreage will be
refunded to you.
(2) If we determine you have tilled less than five acres of native
sod a year for more than one crop year, we will add all the native sod
acreage tilled after May 22, 2008, and all such acreage will be
ineligible for insurance for the first five crop years of planting
following the date the cumulative native sod acreage tilled exceeds five
acres.
6. Coverage, Coverage Levels, Protection Factor, and Policy
Protection
(a) For all acreage of the insured crop in the county, you must
select the same plan of insurance (e.g., all Area Revenue Protection,
all Area Revenue Protection with the Harvest Price Exclusion, or all
Area Yield Protection), if such plans are available on the actuarial
documents.
(b) You must choose a protection factor:
(1) Unless otherwise specified in the Special Provisions from a
range of 80 percent to 120 percent;
(2) As a whole percentage from amounts specified; and
(3) For each crop, type, and practice (you may choose a different
protection factor for each crop, type, and practice).
(c) You may select any coverage level shown on the actuarial
documents for each crop, type, and practice.
(1) For Area Revenue Protection and Area Revenue Protection with the
Harvest Price Exclusion:
(i) CAT level of coverage is not available; and
[[Page 95]]
(ii) With respect to additional level of coverage, you may select
any coverage level specified in the actuarial documents for each crop,
type, and practice. For example: You may choose a 75 percent coverage
level for one crop, type, and practice (such as corn irrigated practice)
and a 90 percent coverage level for another crop, type, and practice
(corn non-irrigated practice).
(2) For Area Yield Protection:
(i) CAT level of coverage is available, and you may select the CAT
level of coverage for any crop, type, and practice;
(ii) With respect to additional level of coverage, you may select
any coverage level specified in the actuarial documents for each crop,
type, and practice. For example: You may choose a 75 percent coverage
level for one crop, type, and practice (corn irrigated practice) and a
90 percent coverage level for another crop, type, and practice (corn
non-irrigated practice); and
(iii) You may have CAT level of coverage on one type and practice
shown on the actuarial documents for the crop, and additional coverage
on another type and practice for the same crop. You may also have
different additional levels of coverage by type and practice.
(d) You may change the plan of insurance, protection factor, or
coverage level, for the following crop year by giving written notice to
us not later than the sales closing date for the insured crop.
(e) Since this is a continuous policy, if you do not select a new
plan of insurance, protection factor, and coverage level on or before
the sales closing date, we will assign the same plan of insurance,
protection factor, and coverage level as the previous year.
(f) Policy protection for ARPI plans of insurance is calculated as
follows:
(1) Multiply the dollar amount of insurance per acre for each crop,
type, and practice by the number of acres insured for such crop, type
and practice; and
(2) Multiply the result of paragraph (1) by your share.
(g) If the projected price cannot be calculated for the current crop
year under the provisions contained in the CEPP and you previously chose
Area Revenue Protection or Area Revenue Protection with the Harvest
Price Exclusion:
(1) Area Revenue Protection and Area Revenue Protection with the
Harvest Price Exclusion will not be provided and you will automatically
be covered under the Area Yield Protection plan of insurance for the
current crop year unless you cancel your coverage by the cancellation
date or change your plan of insurance by the sales closing date;
(2) Notice of availability of the projected price will be provided
on RMA's Web site by the date specified in the applicable projected
price definition contained in the CEPP;
(3) The projected price will be determined by FCIC and will be
released by the date specified in the applicable projected price
definition contained in the CEPP; and
(4) Your coverage will automatically revert back to Area Revenue
Protection or Area Revenue Protection with the Harvest Price Exclusion,
whichever is applicable, for the next crop year that revenue protection
is available unless you cancel your coverage by the cancellation date or
change your plan of insurance by the sales closing date.
7. Annual Premium and Administrative Fees
(a) The administrative fee:
(1) For CAT level of coverage will be an amount specified in the CAT
Endorsement or the Special Provisions, as applicable;
(2) For additional levels of coverage is $30, or an amount specified
in the Special Provisions, as applicable;
(3) Is payable to us on the premium billing date for the crop;
(4) Must be paid no later than the time premium is due or the amount
will be considered a delinquent debt;
(5) If you select coverage in accordance with section 6(c)(2)(iii):
(i) Will be charged for both CAT and additional level of coverage if
a producer elects both for the crop in the county; but
(ii) Will not be more than one additional and one CAT administrative
fee no matter how many different coverage levels you choose for
different type and
[[Page 96]]
practice combinations you insure for the crop in the county;
(6) Will be waived if you request it and:
(i) You qualify as a limited resource farmer; or
(ii) You were insured prior to the 2005 crop year or for the 2005
crop year and your administrative fee was waived for one or more of
those crop years because you qualified as a limited resource farmer
under a policy definition previously in effect, and you remain qualified
as a limited resource farmer under the definition that was in effect at
the time the administrative fee was waived;
(7) Will not be required if you file a bona fide zero acreage report
on or before the acreage reporting date for the crop. If you falsely
file a zero acreage report you may be subject to criminal, civil and
administrative sanctions; and
(8) If not paid when due, may make you ineligible for crop insurance
and certain other USDA benefits.
(b) The premium is based on the policy protection calculated in
section 6(f).
(c) The information needed to determine the premium rate and any
premium adjustment percentages that may apply are contained in the
actuarial documents.
(d) To calculate the premium and subsidy amounts for ARPI plans of
insurance:
(1) Multiply your policy protection from section 6(f) by the
applicable premium rate and any premium adjustment percentages that may
apply;
(2) Multiply the result of paragraph (1) by the applicable subsidy
factor (This is the amount of premium FCIC will pay);
(3) Subtract the result of paragraph (2) from the result of
paragraph (1) to calculate the amount of premium you will pay.
(e) The amount of premium calculated in accordance with section
7(d)(3) is earned and payable at the time coverage begins. You will be
billed for such premium and applicable administrative fees not earlier
than the premium billing date specified in the actuarial documents.
(f) If the amount of premium calculated in accordance with section
7(d)(3) and administrative fees you are required to pay for any acreage
exceeds the amount of policy protection for the acreage, coverage for
those acres will not be provided (No premium or administrative fee will
be due and no indemnity will be paid for such acreage).
(g) Premium or administrative fees owed by you will be offset from
an indemnity due you in accordance with section 2(j).
8. Report of Acreage and Production
(a) An annual acreage report must be submitted to us on our form for
each insured crop (separate lines for each type and practice) in the
county on or before the acreage reporting date contained in the
actuarial documents.
(b) If you do not have a share in an insured crop in the county for
the crop year, you must submit an acreage report, on or before the
acreage reporting date, so indicating.
(c) Your acreage report must include the following information, if
applicable:
(1) The amount of acreage of the crop in the county (insurable and
not insurable) in which you have a share, the last date any acreage of
the insured crop was planted, and the number of acres planted by such
date (Acreage initially planted after the final planting date must be
reported as uninsurable);
(2) Your share at the time coverage begins;
(3) The practice;
(4) The type; and
(5) The land identifier for the crop acreage (e.g., legal
description, FSA farm number or common land unit number if provided to
you by FSA, etc.) as required on our form.
(d) We will not insure any acreage of the insured crop planted after
the final planting date.
(e) Regarding the ability to revise an acreage report you have
submitted to us:
(1) You cannot revise any information pertaining to the planted
acreage after the acreage reporting date without our consent;
(2) Consent may only be provided if the information on the acreage
report is clearly transposed, or you provide adequate evidence that we
have or
[[Page 97]]
someone from USDA has committed an error regarding the information on
your acreage report; and
(3) The provisions in section 8(e)(1) and (2) also pertain to land
acquired after the acreage reporting date, and we may choose to insure
or not insure the acreage, provided the crop meets the requirements in
section 5 and section 8. This requirement does not apply to any acreage
acquired through a transfer of coverage in accordance with section 17.
(f) Except as provided in section 8(h), your premium and indemnity,
if any, will be based on your insured acreage and share on your acreage
report or section 8(e), if applicable.
(g) We may elect to determine all premiums and indemnities based on
the information you submit on the acreage report or upon the factual
circumstances we determine to have existed, subject to the provisions
contained in section 8.
(h) You must provide all required reports and you are responsible
for the accuracy of all information contained in those reports. You
should verify the information on all such reports prior to submitting
them to us.
(1) Except as provided in section 8(h)(2), if you submit information
on any report that is different than what is determined to be correct
and the information reported on the acreage report results in:
(i) A lower liability than the actual, correct liability determined,
the policy protection will be reduced to an amount consistent with the
information reported on the acreage report; or
(ii) A higher liability than the actual, correct liability
determined, the information contained in the acreage report will be
revised to be consistent with the correct information.
(2) If your share is misreported and the share is:
(i) Under-reported at the time of the acreage report, any claim will
be determined using the share you reported; or
(ii) Over-reported at the time of the acreage report, any claim will
be determined using the share we determine to be correct.
(i) If we discover you have incorrectly reported any information on
the acreage report for any crop year, you may be required to provide
documentation in subsequent crop years substantiating your report of
acreage for those crop years, including, but not limited to, an acreage
measurement service at your own expense. If the correction of any
misreported information would affect an indemnity that was paid in a
prior crop year, such claim will be adjusted and you will be required to
repay any overpaid amounts.
(j) You may request an acreage measurement from FSA or a business
that provides such measurement service prior to the acreage reporting
date, submit documentation of such request and an acreage report with
estimated acreage by the acreage reporting date, and if the acreage
measurement shows the estimated acreage was incorrect, we will revise
your acreage report to reflect the correct acreage:
(1) If an acreage measurement is only requested for a portion of the
insured crop, type, and practice, you must separately designate the
acreage for which an acreage measurement has been requested;
(2) If an acreage measurement is not provided to us by the time the
final county revenue or final county yield, as applicable, is
calculated, we may:
(i) Elect to measure the acreage, and finalize your claim in
accordance with applicable policy provisions;
(ii) Defer finalization of the claim until the measurement is
completed with the understanding that if you fail to provide the
measurement prior to the termination date, your claim will not be paid;
or
(iii) Finalize the claim in accordance with applicable policy
provisions after you provide the acreage measurement to us; and
(3) Premium will still be due in accordance with sections 2(k) and 7
(If the acreage is not measured as specified in section 8(j) and the
acreage measurement is not provided to us at least 15 days prior to the
premium billing date, your premium will be based on the estimated
acreage and will be revised, if necessary, when the acreage measurement
is provided);
(4) If the acreage measurement is not provided by the termination
date, you will be precluded from providing any
[[Page 98]]
estimated acreage for all subsequent crop years;
(5) If there is an irreconcilable difference between:
(i) The acreage measured by FSA or a measuring service and our on-
farm measurement, our on-farm measurement will be used; or
(ii) The acreage measured by a measuring service, other than our on-
farm measurement, and FSA, the FSA measurement will be used; and
(6) If the acreage report has been revised in accordance with
sections 8(g) and 8(j), the information on the initial acreage report
will not be considered misreported for the purposes of section 8(h).
(k) If you do not submit an acreage report by the acreage reporting
date, or if you fail to report all acreage, we may elect to determine
the insurable acreage, by crop, type, practice, and share, or to deny
liability on such acreage. If we deny liability for the unreported
acreage, no premium will be due on such acreage and no indemnity will be
paid.
(l) An annual production report must be submitted, unless otherwise
specified in the Special Provisions, to us on our form for each insured
crop (separate lines for each type and practice) in the county by the
production reporting date specified in the actuarial documents.
(m) Unless otherwise authorized by FCIC, if you do not submit a
production report to us by the production reporting date specified in
the actuarial documents, your protection factor for your policy in the
following crop year will be limited to the lowest protection factor
available.
(n) You must certify to the accuracy of the information on your
production report and if you fail to accurately report your production,
you will be subject to the provisions in 8(m), unless the information is
corrected:
(1) On or before the production reporting date; or
(2) Because the incorrect information was the result of our error or
the error of someone from USDA.
(o) If you do not have records to support the information on your
production report, you will be subject to the provisions in 8(m).
(p) At any time we discover you have misreported any material
information on your production report, you will be subject to the
provisions in 8(m).
(q) If you do not submit a production report or you misreported your
production report and you switch to another plan of insurance in the
following crop year, you will be subject to having a yield assigned in
accordance with FCIC procedures.
(r) Errors in reporting acreage, share, and other information
required in this section, may be corrected by us at the time we become
aware of such errors. However, the provisions regarding incorrect
information in this section will apply.
9. Share Insured
(a) Insurance will attach:
(1) Only if the person completing the application has a share in the
insured crop; and
(2) Only to that person's share, except that insurance may attach to
another person's share of the insured crop if the other person has a
share of the crop and:
(i) The application clearly states the insurance is requested for a
person other than an individual (e.g., a partnership or a joint
venture); or
(ii) The application clearly states you as a landlord will insure
your tenant's share, or you as a tenant will insure your landlord's
share. If you as a landlord will insure your tenant's share, or you as a
tenant will insure your landlord's share, you must provide evidence of
the other party's approval (lease, power of attorney, etc.) and such
evidence will be retained by us:
(A) You also must clearly set forth the percentage shares of each
person on the acreage report; and
(B) For each landlord or tenant, you must report the landlord's or
tenant's SSN, EIN, or other identification number we assigned for the
purposes of this policy, as applicable.
(b) With respect to your share:
(1) We will consider included in your share under your policy, any
acreage or interest reported by or for:
(i) Your spouse, unless such spouse can prove he/she has a separate
farming operation, which includes, but is
[[Page 99]]
not limited to, separate land (transfers of acreage from one spouse to
another is not considered separate land), separate capital, separate
inputs, separate accounting, and separate maintenance of proceeds; or
(ii) Your child who resides in your household or any other member of
your household, unless such child or other member of the household can
demonstrate such person has a separate share in the crop (Children who
do not reside in your household are not included in your share); and
(2) If it is determined that the spouse, child or other member of
the household has a separate policy but does not have a separate farming
operation or share of the crop, as applicable:
(i) The policy for the spouse or child or other member of the
household will be void and the policy remaining in effect will be
determined in accordance with section 18(c)(1) and (2);
(ii) The acreage or share reported under the policy that is voided
will be included under the remaining policy; and
(iii) No premium will be due and no indemnity will be paid for the
voided policy.
(c) Acreage rented for a percentage of the crop, or a lease
containing provisions for both a minimum payment (such as a specified
amount of cash, bushels, pounds, etc.) and a crop share will be
considered a crop share lease.
(d) Acreage rented for cash, or a lease containing provisions for
either a minimum payment or a crop share (such as a 50/50 share or
$100.00 per acre, whichever is greater) will be considered a cash lease.
10. Insurance Period
Unless specified otherwise in the Crop Provisions, coverage begins
at the later of:
(a) The date we accept your application (For the purposes of this
paragraph, the date of acceptance is the date that you submit a properly
executed application in accordance with section 2); or
(b) The date the insured crop is planted.
11. Causes of Loss
(a) ARPI provides protection against loss of revenue or against loss
of yield in a county resulting from natural causes of loss that cause
the final county yield or the final county revenue to be less than the
trigger yield or the trigger revenue.
(b) Failure to follow good farming practices, or planting or
producing a crop using a practice that has not been widely recognized as
used to establish the expected county yield, is not an insurable cause
of loss under ARPI.
12. Triggers, Final Policy Protection, Payment Factor, and Indemnity
Calculations
(a) Individual farm revenues and yields are not considered when
calculating losses under ARPI. It is possible that your individual farm
may experience reduced revenue or reduced yield and you do not receive
an indemnity under ARPI.
(b) To calculate the trigger revenue:
(1) For Area Revenue Protection, multiply the expected county yield
by the greater of the projected or harvest price and by the coverage
level.
(2) For Area Revenue Protection with the Harvest Price Exclusion,
multiply the expected county yield by the projected price and by the
coverage level.
(c) To calculate the Trigger Yield for Area Yield Protection,
multiply the expected county yield by the coverage level.
(d) If the harvest price cannot be calculated for the current crop
year under the provisions contained in the CEPP:
(1) Revenue protection will continue to be available; and
(2) The harvest price will be determined and announced by FCIC.
(e) The final policy protection for:
(1) Area Revenue Protection is calculated by:
(i) Multiplying the expected county yield by the greater of the
harvest price or the projected price;
(ii) Multiplying the result of subparagraph (i) by your protection
factor; and
(iii) Multiplying the result of subparagraph (ii) by your acres and
by your share.
(2) Area Revenue Protection with the Harvest Price Exclusion and
Area Yield
[[Page 100]]
Protection are equal to the policy protection and are calculated by:
(i) Multiplying the expected county yield by the projected price;
(ii) Multiplying the result of subparagraph (i) by your protection
factor; and
(iii) Multiplying the result of subparagraph (ii) by your acres and
by your share.
(f) An indemnity is due for:
(1) Area Revenue Protection and Area Revenue Protection with the
Harvest Price Exclusion if the final county revenue is less than the
trigger revenue.
(2) Area Yield Protection if the final county yield is less than the
trigger yield.
(g) The payment factor is calculated for:
(1) Area Revenue Protection by:
(i) Subtracting the final county revenue from the trigger revenue to
determine the amount of loss;
(ii) Multiplying the expected county yield by the greater of the
projected or harvest price and by the loss limit factor;
(iii) Subtracting the result of subparagraph (ii) from the trigger
revenue; and
(iv) Dividing the result of subparagraph (i) by the result of
subparagraph (iii) to obtain the payment factor.
(2) Area Revenue Protection with the Harvest Price Exclusion by:
(i) Subtracting the final county revenue from the trigger revenue to
determine the amount of loss;
(ii) Multiplying the expected county yield by the projected price
and by the loss limit factor;
(iii) Subtracting the result of subparagraph (ii) from the trigger
revenue; and
(iv) Dividing the result of subparagraph (i) by the result of
subparagraph (iii) to obtain the payment factor.
(3) Area Yield Protection by:
(i) Subtracting the final county yield from the trigger yield to
determine the amount of loss;
(ii) Multiplying the expected county yield by the loss limit factor;
(iii) Subtracting the result of subparagraph (ii) from the trigger
yield; and
(iv) Dividing the result of subparagraph (i) by the result of
subparagraph (iii) to obtain the payment factor.
(h) Indemnities for all three ARPI plans of insurance are calculated
by multiplying the final policy protection by the payment factor.
(i) Indemnities for all three ARPI plans of insurance are calculated
following release of the final county yield and harvest price as
specified in the Crop Provisions.
13. Indemnity and Premium Limitations
(a) With respect to acreage where you are due an indemnity for your
first insured crop in the crop year, except in the case of double
cropping described in section 13(c):
(1) You may elect to not plant or to plant and not insure a second
crop on the same acreage for harvest in the same crop year and collect
an indemnity payment that is equal to 100 percent of the insurable loss
for the first insured crop; or
(2) You may elect to plant and insure a second crop on the same
acreage for harvest in the same crop year (you will pay the full premium
and if there is an insurable loss to the second crop, receive the full
amount of indemnity that may be due for the second crop, regardless of
whether there is a subsequent crop planted on the same acreage) and:
(i) Collect an indemnity payment that is 35 percent of the insurable
loss for the first insured crop;
(ii) Be responsible for a premium that is 35 percent of the premium
that you would otherwise owe for the first insured crop; and
(iii) If the second crop does not suffer an insurable loss:
(A) Collect an indemnity payment for the other 65 percent of
insurable loss that was not previously paid under section 13(a)(2)(i);
and
(B) Be responsible for the remainder of the premium for the first
insured crop that you did not pay under section 13(a)(2)(ii).
(b) In lieu of the priority contained in the Agreement to Insure
section, which states that the Crop Provisions have priority over the
Basic Provisions, the reduction in the amount of
[[Page 101]]
indemnity and premium specified in section 13(a) of these Basic
Provisions, as applicable, will apply to any premium owed or indemnity
paid in accordance with the Crop Provisions, and any applicable
endorsement. This will apply:
(1) Even if another person plants the second crop on any acreage
where the first insured crop was planted; or
(2) If you fail to provide any records we require to determine
whether an insurable loss occurred for the second crop.
(c) You may receive a full indemnity for a first insured crop when a
second crop is planted on the same acreage in the same crop year,
regardless of whether or not the second crop is insured or sustains an
insurable loss, if each of the following conditions are met:
(1) It is a practice that is generally recognized by agricultural
experts or organic agricultural experts for the area to plant two or
more crops for harvest in the same crop year;
(2) The second or more crops are customarily planted after the first
insured crop for harvest on the same acreage in the same crop year in
the area;
(3) Additional coverage insurance offered under the authority of the
Act is available in the county on the two or more crops that are double
cropped; and
(4) You provide records acceptable to us of acreage and production
that show you have double cropped acreage in at least two of the last
four crop years in which the first insured crop was planted, or that
show the applicable acreage was double cropped in at least two of the
last four crop years in which the first insured crop was grown on it.
(d) The receipt of a full indemnity on both crops that are double
cropped is limited to the number of acres for which you can demonstrate
you have double cropped or that have been historically double cropped as
specified in section 13(c).
(1) If the records you provided are from acreage you double cropped
in at least two of the last four crop years, you may apply your history
of double cropping to any acreage of the insured crop in the county
(e.g., if you have double cropped 100 acres of wheat and soybeans in the
county and you acquire an additional 100 acres in the county, you can
apply that history of double cropped acreage to any of the 200 acres in
the county as long as it does not exceed 100 acres); or
(2) If the records you provided are from acreage that another
producer double cropped in at least two of the last four crop years, you
may only use the history of double cropping for the same physical acres
from which double cropping records were provided (e.g., if a neighbor
has double cropped 100 acres of wheat and soybeans in the county and you
acquire your neighbor's 100 double cropped acres and an additional 100
acres in the county, you can only apply your neighbor's history of
double cropped acreage to the same 100 acres that your neighbor double
cropped).
(e) If any Federal or State agency requires destruction of any
insured crop or crop production, as applicable, because it contains
levels of a substance, or has a condition, that is injurious to human or
animal health in excess of the maximum amounts allowed by the Food and
Drug Administration, other public health organizations of the United
States or an agency of the applicable State, you must destroy the
insured crop or crop production, as applicable, and certify that such
insured crop or crop production has been destroyed prior to receiving an
indemnity payment. Failure to destroy the insured crop or crop
production, as applicable, will result in you having to repay any
indemnity paid and you may be subject to administrative sanctions in
accordance with section 515(h) of the Act and 7 CFR part 400, subpart R,
and any applicable civil or criminal sanctions.
14. Organic Farming Practices
(a) Insurance will be provided for a crop grown using an organic
farming practice for only those acres of the crop that meet the
requirements for an organic crop on the acreage reporting date.
(b) If an organic type or practice is shown on the actuarial
documents, the projected price, dollar amount of insurance, policy
protection, premium rate, etc., for such organic crop, type and practice
will be used unless otherwise
[[Page 102]]
specified in the actuarial documents. If an organic type or practice is
not shown on the actuarial documents, the projected price, dollar amount
of insurance, policy protection, premium rate, etc., for the non-organic
crop, type and practice will be used.
(c) If insurance is provided for an organic farming practice as
specified in section 14(a) and (b), only the following acreage will be
insured under such practice:
(1) Certified organic acreage;
(2) Transitional acreage being converted to certified organic
acreage in accordance with an organic plan; and
(3) Buffer zone acreage.
(d) On the date you report your acreage, you must have:
(1) For certified organic acreage, a written certification in effect
from a certifying agent indicating the name of the entity certified,
effective date of certification, certificate number, types of
commodities certified, and name and address of the certifying agent (A
certificate issued to a tenant may be used to qualify a landlord or
other similar arrangement);
(2) For transitional acreage, a certificate as described in section
14(d)(1), or written documentation from a certifying agent indicating an
organic plan is in effect for the acreage; and
(3) Records from the certifying agent showing the specific location
of each field of certified organic, transitional, buffer zone, and
acreage not maintained under organic management.
15. Yields
(a) The data source used for the county yields will be based on the
best available data and will be specified in the actuarial documents.
(b) Except as otherwise provided in this section, the data source
used to establish the expected county yield will be the data source used
to establish the final county yield.
(c) If the data source used to establish the expected county yield
is not able to provide credible data to establish the final county yield
because the data is no longer available, credible, or reflect changes
that may have occurred after the yield was established;
(1) FCIC will determine the final county yield based on the most
accurate data available from subsection (g), as determined by FCIC; or
(2) To the extent that practices used during the crop year change
from those upon which the expected county yield is based, the final
county yield may be adjusted to reflect the yield that would have
resulted but for the change in practice. For example, if the county is
traditionally 90 percent irrigated and 10 percent non-irrigated, but
this year the county is now 50 percent irrigated and 50 percent non-
irrigated, the final county yield will be adjusted to an amount as if
the county had 90 percent irrigated acreage.
(d) If the final county yield is established from a data source
other than that used to establish the expected county yield, FCIC will
provide notice of the data source and the reason for the change at the
time the final county yield is published.
(e) If yields are based on NASS data, the final county yield will be
the most current NASS yield at the time FCIC determines the yield in
accordance with the payment dates section of the applicable Crop
Provisions.
(f) The final county yield determined by FCIC is considered final
for the purposes of establishing whether an indemnity is due and will
not be revised for any reason.
(g) Yields used under this insurance program for a crop, may be
based on:
(1) Data collected by NASS, if elected by FCIC, regardless of
whether such data is published or unpublished; or
(2) Crop insurance data, other USDA data, or other data sources, if
elected by FCIC.
16. Assignment of Indemnity
(a) You may assign your right to an indemnity for the crop year only
to creditors or other persons to whom you have a financial debt or other
pecuniary obligation. You may be required to provide proof of the debt
or other pecuniary obligation before we will accept the assignment of
indemnity.
(b) All assignments must be on our form and must be provided to us.
Each assignment form may contain more than one creditor or other person
to whom you have a financial debt or other pecuniary obligation.
[[Page 103]]
(c) Unless you have provided us with a properly executed assignment
of indemnity, we will not make any payment to a lienholder or other
person to whom you have a financial debt or other pecuniary obligation
even if you may have a lien or other assignment recorded elsewhere.
Under no circumstances will we be liable:
(1) To any lienholder or other person to whom you have a financial
debt or other pecuniary obligation where you have failed to include such
lienholder or person on a properly executed assignment of indemnity
provided to us; or
(2) To pay to all lienholders or other persons to whom you have a
financial debt or other pecuniary obligation any amount greater than the
total amount of indemnity owed under the policy.
(d) If we have received the properly executed assignment of
indemnity form:
(1) Only one payment will be issued jointly in the names of all
assignees and you; and
(2) Any assignee will have the right to submit all notices and forms
as required by the policy.
17. Transfer of Coverage and Right to Indemnity
If you transfer any part of your share during the crop year, you may
transfer your coverage rights, if the transferee is eligible for crop
insurance.
(a) We will not be liable for any more than the liability determined
in accordance with your policy that existed before the transfer
occurred.
(b) The transfer of coverage rights must be on our form and will not
be effective until approved by us in writing.
(c) Both you and the transferee are jointly and severally liable for
the payment of the premium and administrative fees.
(d) The transferee has all rights and responsibilities under this
policy consistent with the transferee's interest.
18. Other Insurance
(a) Nothing in this section prevents you from obtaining other
insurance not authorized under the Act. However, unless specifically
required by policy provisions, you must not obtain any other crop
insurance authorized under the Act on your share of the insured crop.
(b) If you cannot demonstrate that you did not intend to have more
than one policy in effect, you may be subject to the consequences
authorized under this policy, the Act, or any other applicable statute.
(c) If you can demonstrate that you did not intend to have more than
one policy in effect (For example, an application to transfer your
policy or written notification to an insurance provider that states you
want to purchase, or transfer, insurance and you want any other policies
for the crop canceled would demonstrate you did not intend to have
duplicate policies) and:
(1) One is an additional coverage policy and the other is a CAT
policy:
(i) The additional coverage policy will apply if both policies are
with the same insurance provider or, if not, both insurance providers
agree; or
(ii) The policy with the earliest date of application will be in
force if both insurance providers do not agree; or
(2) Both are additional coverage policies or both are CAT policies,
the policy with the earliest date of application will be in force and
the other policy will be void, unless both policies are with:
(i) The same insurance provider and the insurance provider agrees
otherwise; or
(ii) Different insurance providers and both insurance providers
agree otherwise.
19. Crops as Payment
You must not abandon any crop to us. We will not accept any crop as
compensation for payments due us.
20. Notices
(a) All notices required to be given by you must be in writing and
received by your crop insurance agent within the designated time unless
otherwise provided by the notice requirement.
(1) Notices required to be given immediately may be by telephone or
in person and confirmed in writing.
(2) The time the notice is provided will be determined by the time
of our receipt of the written notice.
(3) If the date by which you are required to submit a report or
notice
[[Page 104]]
falls on Saturday, Sunday, or a Federal holiday, or if your agent's
office is, for any reason, not open for business on the date you are
required to submit such notice or report, such notice or report must be
submitted on the next business day.
(b) All policy provisions, notices, and communications required to
be sent by us to you will be:
(1) Provided by electronic means, unless:
(i) We do not have the ability to transmit such information to you
by electronic means; or
(ii) You elect to receive a paper copy of such information;
(2) Sent to the location specified in your records with your crop
insurance agent; and
(3) Will be conclusively presumed to have been received by you.
21. Access to Insured Crop and Records, and Record Retention
(a) We, and any employee of USDA authorized to investigate or review
any matter relating to crop insurance (authorized employee of USDA),
have the right to examine the insured crop and all records related to
the insured crop and this policy, and any mediation, arbitration or
litigation involving the insured crop as often as reasonably required
during the record retention period.
(b) You must retain, and provide upon our request, or the request of
any authorized employee of USDA, complete records pertaining to the
planting, acres, share, replanting, inputs, production, harvesting and
disposition of the insured crop for a period of three years after the
end of the crop year or three years after the date of final payment of
indemnity, whichever is later. This requirement also applies to all such
records for acreage that is not insured.
(c) We, or any authorized employee of USDA, may extend the record
retention period beyond three years by notifying you of such extension
in writing.
(d) By signing the application for insurance authorized under the
Act or by continuing insurance for which you have previously applied,
you authorize us or USDA, or any person acting for us or USDA authorized
to investigate or review any matter relating to crop insurance, to
obtain records relating to the planting, acres, share, replanting,
inputs, production, harvesting, and disposition of the insured crop from
any person who may have custody of such records, including but not
limited to, FSA offices, banks, warehouses, gins, cooperatives,
marketing associations, and accountants. You must assist in obtaining
all records we or any authorized employee of USDA request from third
parties.
(e) Failure to provide access to the insured crop or the farm,
authorize access to the records maintained by third parties, or assist
in obtaining all such records will result in a determination that no
indemnity is due for the crop year in which such failure occurred.
[FCIC Policies]
22. Amounts Due Us
(a) Any amount illegally or erroneously paid to you or that is owed
to us but is delinquent may be recovered by us through offset by
deducting it from any loan or payment due you under any Act of Congress
or program administered by any United States Government Agency, or by
other collection action.
(b) Interest will accrue at the rate of 1.25 percent simple interest
per calendar month, or any part thereof, on any unpaid premium amount or
administrative fee due us. With respect to any premiums or
administrative fees owed, interest will start to accrue on the first day
of the month following the premium billing date specified in the
actuarial documents, provided a minimum of 30 days have passed from the
premium billing date.
(c) For the purpose of any other amounts due us, such as repayment
of indemnities found not to have been earned:
(1) Interest will start on the date that notice is issued to you for
the collection of the unearned amount;
(2) Amounts found due under this paragraph will not be charged
interest if payment is made within 30 days of issuance of the notice by
us;
(3) The amount will be considered delinquent if not paid within 30
days of the date the notice is issued by us;
[[Page 105]]
(4) Penalties and interest will be charged in accordance with 31
U.S.C. 3717 and 4 CFR part 102; and
(5) The penalty for accounts more than 90 days delinquent is an
additional 6 percent per annum.
(d) Interest on any amount due us found to have been received by you
because of fraud, misrepresentation or presentation by you of a false
claim will start on the date you received the amount with the additional
6 percent penalty beginning on the 31st day after the notice of amount
due is issued to you. This interest is in addition to any other amount
found to be due under any other federal criminal or civil statute.
(e) If we determine that it is necessary to contract with a
collection agency, refer the debt to government collection centers, the
Department of Treasury Offset Program, or to employ an attorney to
assist in collection, you agree to pay all the expenses of collection.
(f) All amounts paid will be applied first to expenses of collection
if any, second to the reduction of any penalties which may have been
assessed, then to reduction of accrued interest, and finally to
reduction of the principal balance.
[Reinsured policies]
22. Amounts Due Us
(a) Interest will accrue at the rate of 1.25 percent simple interest
per calendar month, or any portion thereof, on any unpaid amount owed to
us or on any unpaid administrative fees owed to FCIC.
(1) For the purpose of premium amounts owed to us or administrative
fees owed to FCIC, interest will start to accrue on the first day of the
month following the premium billing date specified in the actuarial
documents, provided a minimum of 30 days have passed from the premium
billing date.
(2) We will collect any unpaid amounts owed to us and any interest
owed thereon and, prior to the termination date, we will collect any
administrative fees and interest owed thereon to FCIC. After the
termination date, FCIC will collect any unpaid administrative fees and
any interest owed thereon for any CAT policy and we will collect any
unpaid administrative fees and any interest owed thereon for additional
coverage policies.
(b) For the purpose of any other amounts due us, such as repayment
of indemnities found not to have been earned, interest will start to
accrue on the date that notice is issued to you for the collection of
the unearned amount.
(1) Amounts found due under this paragraph will not be charged
interest if payment is made within 30 days of issuance of the notice by
us.
(2) The amount will be considered delinquent if not paid within 30
days of the date the notice is issued by us.
(c) All amounts paid will be applied first to expenses of collection
(see subsection (d) of this section), if any, second to the reduction of
accrued interest, and then to the reduction of the principal balance.
(d) If we determine that it is necessary to contract with a
collection agency or to employ an attorney to assist in collection, you
agree to pay all of the expenses of collection.
(e) The portion of the amounts owed by you for a policy authorized
under the Act that are owed to FCIC may be collected in part through
administrative offset from payments you receive from United States
government agencies in accordance with 31 U.S.C. chapter 37. Such
amounts include all administrative fees, and the share of the overpaid
indemnities and premiums retained by FCIC plus any interest owed
thereon.
[FCIC Policies]
23. Appeal, Reconsideration, and Administrative and Judicial Review
(a) All determinations required by the policy will be made by us.
All expected county yields and final county yields are calculated by us
in accordance with section 15. However, calculations of expected county
yields and final county yields are matters of general applicability.
(1) Any matter of general applicability is not subject to appeal
under 7 CFR part 400, subpart J or 7 CFR part 11.
(2) Your only remedy is judicial review but if you want to seek
judicial review of any determination by us that is a matter of general
applicability,
[[Page 106]]
you must request a determination of non-appealability from the Director
of the National Appeals Division in accordance with 7 CFR 11.6 before
seeking judicial review.
(3) The timeframe to request a determination of non-appealability
from the Director of the National Appeals Division is not later than 30
days after the date the yields are published on the RMA Web site.
(b) If you disagree with our determinations:
(1) Except for determinations specified in section 23(b)(2), obtain
an administrative review in accordance with 7 CFR part 400, subpart J or
appeal in accordance with 7 CFR part 11; or
(2) For determinations regarding whether you have used good farming
practices, request reconsideration in accordance with the
reconsideration process established for this purpose and published at 7
CFR part 400, subpart J.
(c) If you fail to exhaust your administrative remedies under 7 CFR
part 11 or the reconsideration process for determinations of good
farming practices described in section 23(b)(2), as applicable, you will
not be able to resolve the dispute through judicial review.
(d) If reconsideration for good farming practices under 7 CFR part
400, subpart J or appeal under 7 CFR part 11 has been initiated within
the time frames specified in those sections and judicial review is
sought, any suit against us must be:
(1) Filed not later than one year after the date of the decision
rendered in the reconsideration process for good farming practices or
administrative review process under 7 CFR part 11; and
(2) Brought in the United States district court for the district in
which the insured farm involved in the decision is located.
(e) You may only recover contractual damages from us. Under no
circumstances can you recover any attorney fees or other expenses, or
any punitive, compensatory or any other damages from us in
administrative review, appeal or litigation.
[Reinsured policies]
23. Mediation, Arbitration, Appeal, Reconsideration, and Administrative
and Judicial Review
(a) All expected county yields and final county yields are
calculated by FCIC in accordance with section 15. However, calculations
of expected county yields and final county yields are matters of general
applicability.
(1) Any matter of general applicability is not subject to appeal
under 7 CFR part 400, subpart J or 7 CFR part 11.
(2) Your only remedy is judicial review but if you want to seek
judicial review of any FCIC determination that is a matter of general
applicability, you must request a determination of non-appealability
from the Director of the National Appeals Division in accordance with 7
CFR 11.6 before seeking judicial review.
(3) The timeframe to request a determination of non-appealability
from the Director of the National Appeals Division is not later than 30
days after the date the yields are published on RMA's Web site.
(b) With respect to good farming practices:
(1) We will make preliminary decisions regarding what constitutes a
good farming practice.
(2) If you disagree with our decision of what constitutes a good
farming practice, you must request a determination from FCIC of what
constitutes a good farming practice.
(3) If you do not agree with any determination made by FCIC
regarding what constitutes a good farming practice:
(i) You may request reconsideration by FCIC of this determination in
accordance with the reconsideration process established for this purpose
and published at 7 CFR part 400, subpart J; or
(ii) You may file suit against FCIC as follows:
(A) You are not required to request reconsideration from FCIC before
filing suit;
(B) Any suit must be brought against FCIC in the United States
district court for the district in which the insured acreage is located;
and
(C) Suit must be filed against FCIC not later than one year after
the date:
[[Page 107]]
(1) Of the determination made by FCIC regarding what constitutes a
good farming practice; or
(2) Reconsideration is completed, if reconsideration was requested
under section 23(b)(2)(i).
(c) If you elect to bring suit against FCIC after seeking a
Director's Review in accordance with section 23(a), such suit must be
filed against FCIC in the United States district court for the district
in which the insured acreage is located not later than one year after
the date of the decision rendered by the Director. Under no
circumstances can you recover any punitive, compensatory or any other
damages from FCIC.
(d) With respect to any other determination under this policy:
(1) If you and we fail to agree on any determination not covered by
sections 23(a) and (c), the disagreement may be resolved through
mediation. To resolve any dispute through mediation, you and we must
both:
(i) Agree to mediate the dispute;
(ii) Agree on a mediator; and
(iii) Be present or have a designated representative who has
authority to settle the case present, at the mediation.
(2) If resolution cannot be reached through mediation, or you and we
do not agree to mediation, the disagreement must be resolved through
arbitration in accordance with the rules of the American Arbitration
Association (AAA), unless otherwise stated in this subsection or rules
are established by FCIC for this purpose. Any mediator or arbitrator
with a familial, financial or other business relationship to you or us,
or our agent or loss adjuster, is disqualified from hearing the dispute.
(3) If the dispute in any way involves a policy or procedure
interpretation, regarding whether a specific policy provision or
procedure is applicable to the situation, how it is applicable, or the
meaning of any policy provision or procedure, either you or we must
obtain an interpretation from FCIC in accordance with 7 CFR part 400,
subpart X or such other procedures as established by FCIC.
(i) Any interpretation by FCIC will be binding in any mediation or
arbitration.
(ii) Failure to obtain any required interpretation from FCIC will
result in the nullification of any agreement or award.
(iii) An interpretation by FCIC of a policy provision is considered
a determination that is a matter of general applicability. However,
before such interpretation may be challenged in the courts, you must
request a determination of non-appealability from the Director of the
National Appeals Division not later than 30 days after the date the
interpretation was published on RMA's Web site.
(4) Unless the dispute is resolved through mediation, the arbitrator
must provide to you and us a written statement describing the issues in
dispute, the factual findings, the determinations and the amount and
basis for any award and breakdown by claim for any award.
(i) The statement must also include any amounts awarded for
interest.
(ii) Failure of the arbitrator to provide such written statement
will result in the nullification of all determinations of the
arbitrator.
(iii) All agreements reached through settlement, including those
resulting from mediation, must be in writing and contain at a minimum a
statement of the issues in dispute and the amount of the settlement.
(5) Regardless of whether mediation is elected:
(i) The initiation of arbitration proceedings must occur within one
year of the date we denied your claim or rendered the determination with
which you disagree, whichever is later;
(ii) If you fail to initiate arbitration in accordance with section
23(d)(5)(i) and complete the process, you will not be able to resolve
the dispute through judicial review;
(iii) If arbitration has been initiated in accordance with section
23(d)(5)(i) and completed, and judicial review is sought, suit must be
filed not later than one year after the date the arbitration decision
was rendered; and
(iv) In any suit, if the dispute in any way involves a policy or
procedure interpretation, regarding whether a specific policy provision
or procedure is applicable to the situation, how it is
[[Page 108]]
applicable, or the meaning of any policy provision or procedure, an
interpretation must be obtained from FCIC in accordance with 7 CFR part
400, subpart X or such other procedures as established by FCIC. Such
interpretation will be binding on all parties.
(6) Any decision rendered in arbitration is binding on you and us
unless judicial review is sought in accordance with section
23(d)(5)(iii). Notwithstanding any provision in the rules of the AAA,
you and we have the right to judicial review of any decision rendered in
arbitration.
(e) In any mediation, arbitration, appeal, administrative review,
reconsideration or judicial process, the terms of this policy, the Act,
and the regulations published at 7 CFR chapter IV, including the
provisions of 7 CFR part 400, subpart P, are binding. Conflicts between
this policy and any state or local laws will be resolved in accordance
with section 27. If there are conflicts between any rules of the AAA and
the provisions of your policy, the provisions of your policy will
control.
(f) Except as provided in section 23(g), no award or settlement in
mediation, arbitration, appeal, administrative review or reconsideration
process or judicial review can exceed the amount of liability
established or which should have been established under the policy,
except for interest awarded in accordance with section 24.
(g) In a judicial review only, you may recover attorney fees or
other expenses, or any punitive, compensatory or any other damages from
us only if you obtain a determination from FCIC that we, our agent or
loss adjuster failed to comply with the terms of this policy or
procedures issued by FCIC and such failure resulted in you receiving a
payment in an amount that is less than the amount to which you were
entitled. Requests for such a determination should be addressed to the
following: USDA/RMA/Deputy Administrator for Compliance/Stop 0806, 1400
Independence Avenue, SW., Washington, DC 20250-0806.
24. Interest Limitations
We will pay simple interest computed on the net indemnity ultimately
found to be due by us or by a final judgment of a court of competent
jurisdiction, from and including the 61st day after the final county
yield or final county revenue release date as specified in the
applicable Crop Provision.
(a) Interest will be paid only if the reason for our failure to
timely pay is NOT due to your failure to provide information or other
material necessary for the computation or payment of the indemnity.
(b) The interest rate will be that established by the Secretary of
the Treasury under section 12 of the Contract Disputes Act of 1978 (41
U.S.C. 611) and published in the Federal Register semiannually on or
about January 1 and July 1 of each year, and may vary with each
publication.
25. Descriptive Headings
The descriptive headings of the various policy provisions are
formulated for convenience only and are not intended to affect the
construction or meaning of any of the policy provisions.
26. Conformity to Food Security Act
Although your violation of a number of federal statutes, including
the Act, may cause cancellation, termination, or voidance of your
insurance contract, you should be specifically aware that your policy
will be canceled if you are determined to be ineligible to receive
benefits under the Act due to violation of the controlled substance
provisions (title XVII) of the Food Security Act of 1985 (Pub. L. 99-
198) and the regulations promulgated under the Act by USDA.
(a) Your insurance policy will be canceled if you are determined, by
the appropriate Agency, to be in violation of these provisions.
(b) We will recover any and all monies paid to you or received by
you during your period of ineligibility, and your premium will be
refunded, less an amount for expenses and handling equal to 20 percent
of the premium paid or to be paid by you.
27. Applicability of State and Local Statutes
If the provisions of this policy conflict with statutes of the State
or locality in which this policy is issued,
[[Page 109]]
the policy provisions will prevail. State and local laws and regulations
in conflict with federal statutes, this policy, and the applicable
regulations do not apply to this policy.
28. Concealment, Misrepresentation, or Fraud
(a) If you have falsely or fraudulently concealed the fact that you
are ineligible to receive benefits under the Act or if you or anyone
assisting you has intentionally concealed or misrepresented any material
fact relating to this policy:
(1) This policy will be voided; and
(2) You may be subject to remedial sanctions in accordance with 7
CFR part 400, subpart R.
(b) Even though the policy is void, you will still be required to
pay 20 percent of the premium that you would otherwise be required to
pay to offset costs incurred by us in the service of this policy. If
previously paid, the balance of the premium will be returned.
(c) Voidance of this policy will result in you having to reimburse
all indemnities paid for the crop year in which the voidance was
effective.
(d) Voidance will be effective on the first day of the insurance
period for the crop year in which the act occurred and will not affect
the policy for subsequent crop years unless a violation of this section
also occurred in such crop years.
(e) If you willfully and intentionally provide false or inaccurate
information to us or FCIC, or you fail to comply with a requirement of
FCIC, in accordance with 7 CFR part 400, subpart R, FCIC may impose on
you:
(1) A civil fine for each violation in an amount not to exceed the
greater of:
(i) The amount of the pecuniary gain obtained as a result of the
false or inaccurate information provided or the noncompliance with a
requirement of this title; or
(ii) $10,000; and
(2) A disqualification for a period of up to 5 years from receiving
any monetary or nonmonetary benefit provided under each of the
following:
(i) Any crop insurance policy offered under the Act;
(ii) The Farm Security and Rural Investment Act of 2002 (7 U.S.C.
7333 et seq.);
(iii) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.);
(iv) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et
seq.);
(v) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.);
(vi) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et
seq.);
(vii) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921
et seq.); and
(viii) Any federal law that provides assistance to a producer of a
commodity affected by a crop loss or a decline in the prices of
commodities.
29. Multiple Benefits
(a) If you are eligible to receive an indemnity under an additional
coverage plan of insurance and are also eligible to receive benefits for
the same loss under any other USDA program, you may receive benefits
under both programs, unless specifically limited by the crop insurance
contract or by law.
(b) Any amount received for the same loss from any USDA program, in
addition to the crop insurance payment, will not exceed the difference
between the crop insurance payment and the amount of the loss, unless
otherwise provided by law. The amount of loss is the difference between
the total value of the insured crop before the loss and the total value
of the insured crop after the loss.
(c) FSA or another USDA agency, as applicable, will determine and
pay the additional amount due you for any applicable USDA program, after
first considering the amount of any crop insurance indemnity.
30. Examples
The following are examples of the calculation of the premium, amount
of insurance and indemnity for each of the three plans of insurance
under ARPI. Your information will likely be different and you should
consult the actuarial documents in your county and the policy
information. The following facts are for illustration purposes only and
apply to each of the examples.
[[Page 110]]
Producer A farms 100 acres in county X and has a 100 percent share,
or 1.000, in those acres. From the actuarial documents in county X,
Producer A elects the 75 percent coverage level and a protection factor
of 110 percent or 1.10. The actuarial documents in county X also show
that the expected county yield is 141.4 bushels per acre, the projected
price is $4.00, and the expected county revenue is $565.60. The subsidy
factor for the 75 percent coverage level is .55 for revenue coverage and
.59 for yield coverage. The loss limit factor is 18 percent or .18. At
the end of the insurance period, for county X, FCIC releases a harvest
price of $4.57 and a final county yield for county X of 75.0 bushels.
The premium rate is based on the published volatility factor and for
this example is .0166 for Area Revenue Protection, .0146 for Area
Revenue Protection with Harvest Price Exclusion, and .0116 for Area
Yield Protection.
Area Revenue Protection example:
Step 1: Calculate the Dollar Amount of Insurance per Acre
Formula: Expected county yield times projected price times protection
factor equals dollar amount of insurance
141.4 bushels x $4.00 x 1.1 = $622.16 dollar amount of insurance per
acre
Step 2: Calculate the Policy Protection
Formula: Dollar amount of insurance per acre times acres times share
equals policy protection
$622.16 x 100.0 x 1.000 = $62,216 policy protection
Step 3: Calculate the Total Premium
Formula: Policy protection times premium rate equals total premium
$62,216 x .0166 = $1,033 total premium
Step 4: Calculate the Subsidy amount
Formula: Total premium times subsidy factor equals subsidy
$1,033 x .55 = $568 subsidy
Step 5: Calculate the Producer Premium
Formula: Total premium minus subsidy equals producer premium
$1,033 - $568 = $465 producer premium
Step 6: Calculate the Final Policy Protection
Formula: Expected county yield times (greater of projected price or
harvest price) times protection factor times acres times share
equals Final Policy Protection
141.4 bushels x $4.57 x 1.10 x 100.0 x 1.000 = $71,082 final policy
protection
Step 7: Calculate the Final County Revenue
Formula: Final county yield times harvest price equals final county
revenue
75.0 bushels x $4.57 = $342.75 final county revenue
Step 8: Calculate the Trigger Revenue
Formula: Expected county yield times (greater of projected price or
harvest price) times coverage level equals trigger revenue
141.4 bushels x $4.57 x .75 = $484.65 trigger revenue
Step 9: Calculate the Payment Factor
Formula: (Trigger revenue minus final county revenue) divided by
(trigger revenue minus (expected county yield times the greater of
projected or harvest price times loss limit factor)) equals payment
factor
($484.65 - $342.75) / ($484.65-(141.4 x $4.57 x .18)) = .385 payment
factor
Step 10: Calculate the Indemnity
Formula: Final policy protection times payment factor equals indemnity
$71,082 x .385 = $27,367 indemnity
Area Revenue Protection with Harvest Price Exclusion example:
Step 1: Calculate the Dollar Amount of Insurance per Acre
Formula: Expected county yield times projected price times protection
factor equals dollar amount of insurance
141.4 bushels x $4.00 x 1.10 = $622.16 dollar amount of insurance per
acre
Step 2: Calculate the Policy Protection
Formula: Dollar amount of insurance per acre times acres times share
equals policy protection
$622.16 x 100.0 x 1.000 = $62,216 policy protection
[[Page 111]]
Step 3: Calculate the Total Premium
Formula: Policy protection times rate equals total premium
$62,216 x .0146 rate = $908 total premium
Step 4: Calculate the Subsidy Amount
Formula: Total premium times subsidy factor equals subsidy
$908 x .55 = $499 subsidy
Step 5: Calculate the Producer Premium
Formula: Total premium minus subsidy equals producer premium
$908 - $499 = $409 producer premium
Step 6: Calculate the Final Policy Protection
Use the policy protection amount calculated at the beginning of the
insurance period in Step 2
$62,216 policy protection
Step 7: Calculate the Final County Revenue
Formula: Final county yield times harvest price equals final county
revenue
75.0 bushels x $4.57 = $342.75 final county revenue
Step 8: Calculate the Trigger Revenue
Formula: Expected county yield times projected price times coverage
level equals trigger revenue
141.4 bushels x $4.00 x .75 = $424.20 trigger revenue
Step 9: Calculate the Payment Factor
Formula: (Trigger revenue minus final county revenue) divided by
(trigger revenue minus (expected county yield times projected price
times loss limit factor)) equals payment factor
($424.20 - $342.75) / ($424.20 - (141.4 x $4.00 x .18)) = .253
Step 10: Calculate the Indemnity
Formula: Final policy protection times payment factor equals indemnity
$62,216 x .253 = $15741 indemnity
Area Yield Protection example:
Step 1: Calculate the Dollar Amount of Insurance per Acre
Formula: Expected county yield times projected price times protection
factor equals dollar amount of insurance
141.4 bushels x $4.00 x 1.10 = $622.16 dollar amount of insurance per
acre
Step 2: Calculate the Policy Protection
Formula: Dollar amount of insurance per acre times acres times share =
policy protection
$622.16 x 100.0 x 1.000 = $62,216 policy protection
Step 3: Calculate the Total Premium
Formula: policy protection times premium rate equals total premium
$62,216 x .0116 rate = $722 total premium
Step 4: Calculate the Subsidy amount
Formula: Total premium times subsidy factor equals subsidy
$722 x .59 subsidy factor = $426 subsidy
Step 5: Calculate the Producer Premium
Formula: Total premium minus subsidy equals producer premium
$722 - $426 = $296 producer premium
Step 6: Calculate the Final Policy Protection
Use the policy protection amount calculated at the beginning of the
insurance period in Step 2
$62,216 policy protection
Step 7: Calculate the Trigger Yield
Formula: Expected county yield times coverage level equals trigger yield
141.4 bushels times .75 = 106.1 bushels
Step 8: Calculate the Payment Factor
Formula: (Trigger yield minus final county yield) divided by (trigger
yield minus (expected county yield times loss limit factor)) equals
payment factor
(106.1 bushels - 75.0 bushels) / (106.1 bushels - (141.4 bushels x .18))
= .386
[[Page 112]]
Step 9: Calculate the Indemnity
Formula: Final policy protection times payment factor equals indemnity
$62,216 times .386 = $24,015 Indemnity
Sec. 407.10 Area risk protection insurance for barley.
The barley crop insurance provisions for Area Risk Protection
Insurance for the 2014 and succeeding crop years are as follows:
UNITED STATES DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Area Risk Protection Insurance
Barley Crop Insurance Provisions
1. Definitions
Harvest. Combining or threshing the barley for grain.
Planted acreage. In addition to the definition contained in the Area
Risk Protection Insurance Basic Provisions, land on which seed is
initially spread onto the soil surface by any method and which
subsequently is mechanically incorporated into the soil in a timely
manner and at the proper depth will also be considered planted.
2. Insured Crop
The insured crop will be all barley:
(a) Grown on insurable acreage in the county listed on the accepted
application;
(b) Properly planted by the final planting date and reported on or
before the acreage reporting date;
(c) Planted with the intent to be harvested;
(d) Not planted into an established grass or legume;
(e) Not interplanted with another crop; and
(f) Not planted as a nurse crop, unless seeded at the normal rate
and intended for harvest as grain.
3. Payment Dates
(a) Unless otherwise specified in the Special Provisions the final
county revenues and final county yields will be determined prior to
April 1 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the
Special Provisions we will issue any payment to you prior to May 1
following the crop year and following the determination of the final
county revenue or the final county yield, as applicable.
4. Program Dates
----------------------------------------------------------------------------------------------------------------
Cancellation and
State and county termination dates Contract change date
----------------------------------------------------------------------------------------------------------------
Kit Carson, Lincoln, Elbert, El Paso, Pueblo, Las September 30............. June 30.
Animas Counties, Colorado and all Colorado
Counties south and east thereof; all New Mexico
counties except Taos County; Kansas; Missouri;
Illinois; Indiana; Ohio; Pennsylvania; New York;
Massachusetts; and all states south and east
thereof.
Arizona; California; and Clark and Nye Counties, October 31............... June 30.
Nevada.
All Colorado counties except Kit Carson, Lincoln, March 15................. November 30.
Elbert, El Paso, Pueblo, and Las Animas Counties
and all Colorado counties south and east thereof;
all Nevada counties except Clark and Nye Counties;
Taos County, New Mexico; and all other states
except: Arizona, California, and (except) Kansas,
Missouri, Illinois, Indiana, Ohio, Pennsylvania,
New York, and Massachusetts and all States south
and east thereof.
----------------------------------------------------------------------------------------------------------------
[[Page 113]]
Sec. 407.11 Area risk protection insurance for corn.
The corn crop insurance provisions for Area Risk Protection
Insurance for the 2014 and succeeding crop years are as follows:
UNITED STATES DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Area Risk Protection Insurance
Corn Crop Insurance Provisions
1. Definitions
Harvest. Combining or picking corn for grain or cutting for hay,
silage, fodder, or earlage.
Planted acreage. In addition to the definition contained in the Area
Risk Protection Insurance Basic Provisions, corn seed that is broadcast
and subsequently mechanically incorporated will not be considered
planted.
2. Insured Crop
(a) The insured crop will be all field corn that is:
(1) Yellow dent or white corn, including mixed yellow and white,
waxy or high-lysine corn, high-oil corn blends containing mixtures of at
least 90 percent high yielding yellow dent female plants with high-oil
male pollinator plants, or commercial varieties of high-protein hybrids.
(2) Grown on insurable acreage in the county listed on the accepted
application;
(3) Properly planted by the final planting date and reported on or
before the acreage reporting date;
(4) Planted with the intent to be harvested; and
(5) Not planted into an established grass or legume or interplanted
with another crop.
(b) Corn other than that specified in section 2(a)(1) including but
not limited to high-amylose, high-oil or high-protein (except as
authorized in section 2(a)(1)), flint, flour, hybrid seed corn, Indian,
or blue corn, or a variety genetically adapted to provide forage for
wildlife or any other open pollinated corn may be insurable under this
policy if specified in the Special Provisions:
(1) The insurability requirements in 2(a) apply to this other corn
and additional requirements for insurability may be stated for this
other corn in the Special Provisions; and
(2) This other corn will be insured using the yields, rates, and
prices for field corn unless otherwise specified in the actuarial
documents.
3. Payment Dates
(a) Unless otherwise specified in the Special Provisions the final
county revenues and final county yields will be determined prior to
April 16 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the
Special Provisions we will issue any payment to you prior to May 16
following the crop year and following the determination of the final
county revenue or the final county yield, as applicable.
4. Program Dates
----------------------------------------------------------------------------------------------------------------
Cancellation and
State and county termination dates Contract change date
----------------------------------------------------------------------------------------------------------------
Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, January 31............... November 30.
Karnes, Goliad, Victoria, and Jackson Counties,
Texas, and all Texas counties lying south thereof.
El Paso, Hudspeth, Culberson, Reeves, Loving, February 15.............. November 30.
Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom
Green, Concho, McCulloch, San Saba, Mills,
Hamilton, Bosque, Johnson, Tarrant, Wise, and
Cooke Counties, Texas, and all Texas Counties
lying south and east thereof to and including
Terrell, Crockett, Sutton, Kimble, Gillespie,
Blanco, Comal, Guadalupe, Gonzales, De Witt,
Lavaca, Colorado, Wharton, and Matagorda Counties,
Texas.
Alabama; Arizona; Arkansas; California; Florida; February 28.............. November 30.
Georgia; Louisiana; Mississippi; Nevada; North
Carolina; South Carolina.
All other Texas counties and all other states...... March 15................. November 30.
----------------------------------------------------------------------------------------------------------------
[[Page 114]]
Sec. 407.12 Area risk protection insurance for cotton.
The cotton crop insurance provisions for Area Risk Protection
Insurance for the 2014 and succeeding crop years are as follows:
UNITED STATES DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Area Risk Protection Insurance
Cotton Crop Insurance Provisions
1. Definitions
Harvest. Removal of the seed cotton from the stalk.
Planted acreage. In addition to the definition contained in the Area
Risk Protection Insurance Basic Provisions, cotton seed broadcast and
subsequently mechanically incorporated will not be considered planted.
2. Insured Crop
(a) The insured crop will be all upland cotton:
(1) Grown on insurable acreage in the county listed on the accepted
application;
(2) Properly planted by the final planting date and reported on or
before the acreage reporting date;
(3) Planted with the intent to be harvested.
(b) That is not (unless allowed by the Special Provisions):
(1) Colored cotton lint;
(2) Planted into an established grass or legume;
(3) Interplanted with another spring planted crop;
(4) Grown on acreage in which a hay crop was harvested in the same
calendar year unless the acreage is irrigated; or
(5) Grown on acreage on which a small grain crop reached the heading
stage in the same calendar year unless the acreage is irrigated or
adequate measures are taken to terminate the small grain crop prior to
heading and less than 50 percent of the small grain plants reach the
heading stage.
(c) Cotton other than upland cotton may be insurable under this
policy if specified in the Special Provisions:
(1) The insurability requirements in 2(a) apply to other cotton and
additional requirements for insurability may be stated for other cotton
in the Special Provisions; and
(2) Other cotton will be insured using the yields, rates, and prices
for cotton unless otherwise specified in the actuarial documents.
3. Payment Dates
(a) Unless otherwise specified in the Special Provisions the final
county revenues and final county yields will be determined prior to July
16 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the
Special Provisions we will issue any payment to you prior to August 15
following the crop year and following the determination of the final
county revenue or the final county yield, as applicable.
4. Program Dates
----------------------------------------------------------------------------------------------------------------
Cancellation and
State and county termination dates Contract change date
----------------------------------------------------------------------------------------------------------------
Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, January 31............... November 30.
Karnes, Goliad, Victoria, and Jackson Counties,
Texas, and all Texas counties lying south thereof.
Alabama; Arizona; Arkansas; California; Florida; February 28.............. November 30.
Georgia; Louisiana; Mississippi; Nevada; North
Carolina; South Carolina; El Paso, Hudspeth,
Culberson, Reeves, Loving, Winkler, Ector, Upton,
Reagan, Sterling, Coke, Tom Green, Concho,
McCulloch, San Saba, Mills, Hamilton, Bosque,
Johnson, Tarrant, Wise, and Cooke Counties, Texas,
and all Texas counties lying south and east
thereof to and including Terrell, Crockett,
Sutton, Kimble, Gillespie, Blanco, Comal,
Guadalupe, Gonzales, De Witt, Lavaca, Colorado,
Wharton, and Matagorda Counties, Texas.
All other Texas counties and all other States...... March 15................. November 30.
----------------------------------------------------------------------------------------------------------------
[[Page 115]]
Sec. 407.13 Area risk protection insurance for forage.
The forage crop insurance provisions for Area Risk Protection
Insurance for the 2014 and succeeding crop years are as follows:
UNITED STATES DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Area Risk Protection Insurance
Forage Crop Insurance Provisions
1. Definitions
Forage. Planted perennial alfalfa, perennial red clover, perennial
grasses, or a mixture thereof, or other species as shown in the
actuarial documents.
Harvest. Removal of the forage from the field, and rotational
grazing.
Rotational grazing. The defoliation of the insured forage by
livestock, within a pasturing system whereby the forage field is
subdivided into smaller parcels and livestock are moved from one area to
another, allowing a period of grazing followed by a period for forage
regrowth.
2. Insured Crop
The insured crop will be the forage types shown on the actuarial
documents:
(a) Grown on insurable acreage in the county listed on the accepted
application;
(b) Properly planted by the final planting date and reported on or
before the acreage reporting date;
(c) Intended for harvest; and
(d) Not grown with another crop.
3. Insurable Acreage
In addition to section 5 of the Area Risk Protection Insurance Basic
Provisions, acreage seeded to forage after July 1 of the previous crop
year will not be insurable.
4. Payment Dates
(a) Unless otherwise specified in the Special Provisions the final
county yields will be determined prior to May 1 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the
Special Provisions we will issue any payment to you prior to May 31
following the crop year and following the determination of the final
county yield.
5. Program Dates
November 30 is the cancellation and termination date for all states,
or as specified in the Special Provisions. The contract change date is
August 31 for all states, or as specified in the Special Provisions.
6. Annual Premium
In lieu of section 7(e) of the Area Risk Protection Insurance Basic
Provisions, the annual premium is earned and payable on the acreage
reporting date. You will be billed for premium due on the date shown in
the actuarial documents. The premium will be determined based on the
rate shown on the actuarial documents.
Sec. 407.14 Area risk protection insurance for peanuts
The peanut crop insurance provisions for Area Risk Protection
Insurance for the 2014 and succeeding crop years are as follows:
UNITED STATES DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Area Risk Protection Insurance
Peanut Crop Insurance Provisions
1. Definitions
Harvest. The completion of digging and threshing and removal of
peanuts from the field.
Planted acreage. In addition to the definition contained in the Area
Risk Protection Insurance Basic Provisions, peanuts must initially be
planted in a row pattern which permits mechanical cultivation, or that
allows the peanuts to be cared for in a manner recognized by
agricultural experts as a good farming practice. Acreage planted in any
other manner will not be insurable unless otherwise provided by the
Special Provisions.
[[Page 116]]
2. Insured Crop
(a) The insured crop will be all peanuts:
(1) Grown on insurable acreage in the county listed on the accepted
application;
(2) Properly planted by the final planting date and reported on or
before the acreage reporting date;
(3) Planted with the intent to be harvested as peanuts; and
(4) Not planted into an established grass or legume or interplanted
with another crop.
3. Payment Dates
(a) Unless otherwise specified in the Special Provisions the final
county revenues and or final county yields will be determined prior to
June 16 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the
Special Provisions we will issue any payment to you prior to July 16 and
following the determination of the final county revenue or the final
county yield, as applicable.
4. Program Dates
----------------------------------------------------------------------------------------------------------------
Cancellation and
State and county termination dates Contract change date
----------------------------------------------------------------------------------------------------------------
Jackson, Victoria, Goliad, Bee, Live Oak, McMullen, January 15............... November 30.
La Salle, and Dimmit Counties, Texas and all Texas
Counties lying south thereof.
El Paso, Hudspeth, Culberson, Reeves, Loving, February 28.............. November 30.
Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom
Green, Concho, McCulloch, San Saba, Mills,
Hamilton, Bosque, Johnson, Tarrant, Wise, and
Cooke Counties, Texas, and all Texas counties
south and east thereof; and all other states
except New Mexico, Oklahoma, and Virginia.
New Mexico; Oklahoma; Virginia; and all other Texas March 15................. November 30.
Counties.
----------------------------------------------------------------------------------------------------------------
Sec. 407.15 Area risk protection insurance for grain sorghum.
The grain sorghum crop insurance provisions for Area Risk Protection
Insurance for the 2014 and succeeding crop years are as follows:
UNITED STATES DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Area Risk Protection Insurance
Grain Sorghum Crop Insurance Provisions
1. Definitions
Harvest. Combining or threshing the sorghum for grain or cutting for
hay, silage, or fodder.
Planted acreage. In addition to the definition contained in the Area
Risk Protection Insurance Basic Provisions, sorghum seed broadcast and
subsequently mechanically incorporated will not be considered planted.
2. Insured Crop
(a) The insured crop will be all sorghum excluding hybrid sorghum
seed:
(1) Grown on insurable acreage in the county listed on the accepted
application;
(2) Properly planted by the final planting date and reported on or
before the acreage reporting date;
(3) Planted with the intent to be harvested; and
(4) Not planted into an established grass or legume or interplanted
with another crop.
(b) Other sorghum including hybrid sorghum seed may be insurable
under this policy if specified in the Special Provisions:
(1) The insurability requirements in 2(a) apply to these other
sorghum and additional requirements for insurability may be stated for
these crops in the Special Provisions; and
(2) This other sorghum will be insured using the yields, rates, and
prices for sorghum unless otherwise specified in the actuarial
documents.
3. Payment Dates
(a) Unless otherwise specified in the Special Provisions the final
county revenues and final county yields will be determined prior to
April 16 following the crop year.
[[Page 117]]
(b) If an indemnity is due, unless otherwise specified in the
Special Provisions we will issue any payment to you prior to May 16
following the crop year and following the determination of the final
county revenue or the final county yield, as applicable.
4. Program Dates
----------------------------------------------------------------------------------------------------------------
Cancellation and
State and county termination dates Contract change date
----------------------------------------------------------------------------------------------------------------
Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, January 31............... November 30.
Karnes, Goliad, Victoria, and Jackson Counties,
Texas, and all Texas counties lying south thereof.
El Paso, Hudspeth, Culberson, Reeves, Loving, February 15.............. November 30.
Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom
Green, Concho, McCulloch, San Saba, Mills,
Hamilton, Bosque, Johnson, Tarrant, Wise, and
Cooke Counties, Texas, and all Texas counties
south and east thereof to and including Terrell,
Crockett, Sutton, Kimble, Gillespie, Blanco,
Comal, Guadalupe, Gonzales, De Witt, Lavaca,
Colorado, Wharton, and Matagorda Counties, Texas.
Alabama; Arizona; Arkansas; California; Florida; February 28.............. November 30.
Georgia; Louisiana; Mississippi; Nevada; North
Carolina; and South Carolina.
All other Texas counties and all other states...... March 15................. November 30.
----------------------------------------------------------------------------------------------------------------
Sec. 407.16 Area risk protection insurance for soybean.
The soybean crop insurance provisions for Area Risk Protection
Insurance for the 2014 and succeeding crop years are as follows:
UNITED STATES DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Area Risk Protection Insurance
Soybean Crop Insurance Provisions
1. Definitions
Harvest. Combining or threshing the soybeans.
Planted acreage. In addition to the definition contained in the Area
Risk Protection Insurance Basic Provisions, land on which seed is
initially spread onto the soil surface by any method and which
subsequently is mechanically incorporated into the soil in a timely
manner and at the proper depth, will also be considered planted, unless
specified otherwise in the Special Provisions.
2. Insured Crop
The insured crop will be all soybeans:
(a) Grown on insurable acreage in the county listed on the accepted
application;
(b) Properly planted by the final planting date and reported on or
before the acreage reporting date;
(c) Planted with the intent to be harvested; and
(d) Not planted into an established grass or legume or interplanted
with another crop.
3. Payment Dates
(a) Unless otherwise specified in the Special Provisions final
county revenues and final county yields will be determined prior to
April 16 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the
Special Provisions we will issue any payment to you prior to May 16
following the crop year and following the determination of the final
county revenue or the final county yield, as applicable.
4. Program Dates
----------------------------------------------------------------------------------------------------------------
Cancellation and
State and county termination dates Contract change date
----------------------------------------------------------------------------------------------------------------
Jackson, Victoria, Goliad, Bee, Live Oak, McMullen, January 31............... November 30.
La Salle, and Dimmit Counties, Texas and all Texas
counties lying south thereof.
[[Page 118]]
Alabama; Arizona; Arkansas; California; Florida; February 28.............. November 30.
Georgia; Louisiana; Mississippi; Nevada; North
Carolina; South Carolina; and El Paso, Hudspeth,
Culberson, Reeves, Loving, Winkler, Ector, Upton,
Reagan, Sterling, Coke, Tom Green, Concho,
McCulloch, San Saba, Mills, Hamilton, Bosque,
Johnson, Tarrant, Wise, and Cooke Counties, Texas,
and all Texas counties lying south and east
thereof to and including Maverick, Zavala, Frio,
Atascosa, Karnes, De Witt, Lavaca, Colorado,
Wharton, and Matagorda Counties, Texas.
All other Texas counties and all other states...... March 15................. November 30.
----------------------------------------------------------------------------------------------------------------
Sec. 407.17 Area risk protection insurance for wheat.
The wheat crop insurance provisions for Area Risk Protection
Insurance for the 2014 and succeeding crop years are as follows:
UNITED STATES DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Area Risk Protection Insurance
Wheat Crop Insurance Provisions
1. Definitions
Harvest. Combining or threshing the wheat for grain.
Planted acreage. In addition to the definition contained in the Area
Risk Protection Insurance Basic Provisions, land on which seed is
initially spread onto the soil surface by any method and which
subsequently is mechanically incorporated into the soil in a timely
manner and at the proper depth will also be considered planted.
2. Insured Crop
The insured crop will be all wheat:
(a) Grown on insurable acreage in the county listed on the accepted
application;
(b) Properly planted by the final planting date and reported on or
before the acreage reporting date;
(c) Planted with the intent to be harvested;
(d) Not planted into an established grass or legume;
(e) Not interplanted with another crop; and
(f) Not planted as a nurse crop, unless seeded at the normal rate
and intended for harvest as grain.
3. Payment Dates
(a) Unless otherwise specified in the Special Provisions the final
county revenues and final county yields will be determined prior to
April 1 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the
Special Provisions we will issue any payment to you prior to May 1
following the crop year and following the determination of the final
county revenue or the final county yield, as applicable.
4. Program Dates
----------------------------------------------------------------------------------------------------------------
Cancellation and
State and county termination dates Contract change date
----------------------------------------------------------------------------------------------------------------
All Colorado counties except Alamosa, Conejos, September 30............. June 30.
Costilla, Rio Grande, and Saguache; all Montana
counties except Daniels and Sheridan Counties; all
South Dakota counties except Corson, Walworth,
Edmonds, Faulk, Spink, Beadle, Kingsbury, Miner,
McCook, Turner, and Yankton Counties and all South
Dakota counties east thereof; all Wyoming counties
except Big Horn, Fremont, Hot Springs, Park, and
Washakie Counties; and all other states except
Alaska, Arizona, California, Maine, Minnesota,
Nevada, New Hampshire, North Dakota, Utah, and
Vermont.
Arizona; California; Nevada; and Utah.............. October 31............... June 30
[[Page 119]]
Alaska; Alamosa, Conejos, Costilla, Rio Grande, and March 15................. November 30.
Saguache Counties, Colorado; Maine; Minnesota;
Daniels and Sheridan Counties, Montana; New
Hampshire; North Dakota; Corson, Walworth,
Edmunds, Faulk, Spink, Beadle, Kingsbury, Miner,
McCook, Turner, and Yankton Counties, South
Dakota, and all South Dakota counties east
thereof; Vermont; and Big Horn, Fremont, Hot
Springs, Park, and Washakie Counties, Wyoming.
----------------------------------------------------------------------------------------------------------------
PARTS 408-411 [RESERVED]
PART 412_PUBLIC INFORMATION_FREEDOM OF INFORMATION
Sec.
412.1 General statement.
412.2 Public inspection and copying.
412.3 Index.
412.4 Requests for records.
412.5 Appeals.
412.6 Timing of responses to requests.
Authority: 5 U.S.C. 552 and 7 U.S.C. 1506.
Source: 62 FR 67694, Dec. 30, 1997, unless otherwise noted.
Sec. 412.1 General statement.
This part is issued in accordance with the regulations of the
Secretary of Agriculture published at 7 CFR 1.1-1.23, and appendix A,
implementing the Freedom of Information Act (5 U.S.C. 552). The
Secretary's regulations, as implemented by this part, and the Risk
Management Agency (RMA) govern availability of records of the Federal
Crop Insurance Corporation (FCIC) as administration of the crop
insurance program for FCIC.
Sec. 412.2 Public inspection and copying.
(a) Members of the public may request access to the information
specified in Sec. 412.2(d) for inspection and copying.
(b) To obtain access to specified information, the public should
submit a written request, in accordance with 7 CFR 1.6, to the Appeals,
Litigation and Legal Liaison Staff, Risk Management Agency, United
States Department of Agriculture, 1400 Independence Avenue, SW, STOP
0807, room 6618-S, Washington, DC 20250-0807, from 9:00 a.m.-4:00 pm.,
EDT Monday through Friday, except holidays.
(c) When the information requested is not located at the office of
the Appeals, Litigation and Legal Liaison Staff, the Appeals, Litigation
and Legal Liaison Staff will direct the request to the appropriate
office where the information can be obtained. The requester will be
informed that the request has been forwarded to the appropriate office.
(d) FCIC will make available for inspection and copying, unless
otherwise exempt from publication under sections 552(a)(2)(C) and
552(b):
(1) Final opinions, including concurring and dissenting opinions and
orders made in the adjudication of cases; and
(2) Those statements of policy and interpretations that have been
adopted by FCIC and RMA and are not published in the Federal Register;
and
(3) Administrative staff manuals and instructions to staff that
affect a member of the public.
Sec. 412.3 Index.
5 U.S.C. 552(a)(2) requires that each agency publish, or otherwise
make available, a current index of all materials available for public
inspection and copying. RMA and FCIC will maintain a current index
providing identifying information for the public as to any material
issued, adopted, or promulgated by the Agency since July 4, 1967, and
required by section 552(a)(2). Pursuant to the Freedom of Information
Act provisions, RMA and FCIC have determined that in view of the small
number of public requests for such index, publication of such an index
would be unnecessary and impracticable. Copies of the index will be
available upon request in person or by mail at the address stated in
Sec. 412.2(b).
Sec. 412.4 Requests for records.
The Director of the Appeals, Litigation and Legal Liaison staff, RMA
located at the above stated address, is
[[Page 120]]
the person authorized to receive Freedom of Information Act and to
determine whether to grant or deny such requests in accordance with 7
CFR 1.8.
Sec. 412.5 Appeals.
Any person whose request under Sec. 412.4 is denied shall have the
right to appeal such denial. This appeal shall be submitted in
accordance with 7 CFR 1.13 and addressed to the Manager, Federal Crop
Insurance Corporation, United States Department of Agriculture, 1400
Independence Avenue, SW., STOP 0807, room 6618-S, Washington, DC 20250-
0807.
Sec. 412.6 Timing of responses to requests.
(a) In general, FCIC will respond to requests according to their
order of receipt.
(b) Existing responsive documents or information may be maintained
in RMA's field offices. Therefore, extra time may be necessary to search
and collect the documents.
PARTS 413-456 [RESERVED]
PART 457_COMMON CROP INSURANCE REGULATIONS
Sec.
457.1 Applicability.
457.2 Availability of Federal crop insurance.
457.3 Premium rates, production guarantees or amounts of insurance,
coverage levels, and prices at which indemnities shall be
computed.
457.4 OMB control numbers.
457.5 Creditors.
457.6 [Reserved]
457.7 The contract.
457.8 The application and policy.
457.9 Appropriation contingency.
457.10-457.100 [Reserved]
457.101 Small grains crop insurance.
457.102 Wheat or barley winter coverage endorsement.
457.103 [Reserved]
457.104 Cotton crop insurance provisions.
457.105 Extra long staple cotton crop insurance provisions.
457.106 Texas citrus tree crop insurance provisions.
457.107 Florida citrus fruit crop insurance provisions.
457.108 Sunflower seed crop insurance provisions.
457.109 Sugar beet crop insurance provisions.
457.110 Fig crop insurance provisions.
457.111 Pear crop insurance provisions.
457.112 Hybrid sorghum seed crop insurance provisions.
457.113 Coarse grains crop insurance provisions.
457.114-457.115 [Reserved]
457.115 Nursery frost, freeze, and cold damage exclusion option.
457.116 Sugarcane crop insurance provisions.
457.117 Forage production crop insurance provisions.
457.118 Malting barley price and quality endorsement.
457.119 Texas citrus fruit crop insurance provisions.
457.120 [Reserved]
457.121 Arizona-California citrus crop insurance provisions.
457.122 Walnut crop insurance provisions.
457.123 Almond crop insurance provisions.
457.124 Raisin crop insurance provisions.
457.125 Safflower crop insurance provisions.
457.126 Popcorn crop insurance provisions.
457.127 [Reserved]
457.128 Guaranteed production plan of fresh market tomato crop
insurance provisions.
457.129 Fresh market sweet corn crop insurance provisions.
457.130 Madacamia tree crop insurance provisions.
457.131 Macadamia nut crop insurance provisions.
457.132 Cranberry crop insurance provisions.
457.133 Prune crop insurance provisions.
457.134 Peanut crop insurance provisions.
457.135 Onion crop insurance provisions.
457.136 Tobacco crop insurance provisions.
457.137 Green pea crop insurance provisions.
457.138 Grape crop insurance provisions.
457.139 Fresh market tomato (dollar plan) crop insurance provisions.
457.140 Dry pea crop insurance provisions.
457.141 Rice crop insurance provisions.
457.142 Northern potato crop insurance provisions.
457.143 Northern potato crop insurance--quality endorsement.
457.144 Northern potato crop insurance--processing quality endorsement.
457.145 Potato crop insurance--certified seed endorsement.
457.146 Northern potato crop insurance--storage coverage endorsement.
457.147 Central and Southern potato crop insurance provisions.
457.148 Fresh market pepper crop insurance provisions.
457.149 Table grape crop insurance provisions.
457.150 Dry bean crop insurance provisions.
457.151 Forage seeding crop insurance provisions.
457.152 Hybrid seed corn crop insurance provisions.
[[Page 121]]
457.153 Peach crop insurance provisions.
457.154 Processing sweet corn crop insurance provisions.
457.155 Processing bean crop insurance provisions.
457.156-457.157 [Reserved]
457.158 Apple crop insurance provisions.
457.159 Stonefruit crop insurance provisions.
457.160 Processing tomato crop insurance provisions.
457.161 Canola and rapeseed crop insurance provisions.
457.162 Nursery crop insurance provisions.
457.163 Nursery peak inventory endorsement.
457.164 Nursery rehabilitation endorsement.
457.165 Millet crop insurance provisions.
457.166 Blueberry crop insurance provisions.
457.167 Pecan revenue crop insurance provisions.
457.168 Mustard crop insurance provisions.
457.169 Mint crop insurance provisions.
457.170 Cultivated wild rice crop insurance provisions.
457.171 Cabbage crop insurance provisions.
457.172 Coverage Enhancement Option.
457.173 Florida Avocado crop insurance provisions.
Authority: 7 U.S.C. 1506(l) and 1506(o).
Source: 56 FR 1351, Jan. 14, 1991, unless otherwise noted.
Sec. 457.1 Applicability.
The provisions of this part are applicable only to crops for which a
crop provision is published as a section to 7 CFR part 457 and then only
for the crops and crop year designated by the application section.
Sec. 457.2 Availability of Federal crop insurance.
(a) Insurance shall be offered under the provisions of this section
on the insured crop in counties within the limits prescribed by and in
accordance with the provisions of the Federal Crop Insurance Act, as
amended (the Act). The crops and counties shall be designated by the
Manager of the Corporation from those approved by the Board of Directors
of the Corporation.
(b) The insurance is offered through companies reinsured by the
Federal Crop Insurance Corporation (FCIC) that offer contracts
containing the same terms and conditions as the contract set out in this
part. These contracts are clearly identified as being reinsured by FCIC.
FCIC may offer the contract for the catastrophic level of coverage
contained in this part and part 402 directly to the insured through
local offices of the Department of Agriculture only if the Secretary
determines that the availability of local agents is not adequate. Those
contracts are specifically identified as being offered by FCIC.
(c) Except as specified in the Crop Provisions, the Catastrophic
Risk Protection Endorsement (part 402 of this chapter) and part 400,
subpart T of this chapter, no person may have in force more than one
contract on the same crop for the same crop year in the same county.
(d) Except as specified in paragraph (c) of this section, if a
person has more than one contract authorized under the Act that provides
coverage for the same loss on the same crop for the same crop year in
the same county, all such contracts shall be voided for that crop year
and the person will be liable for the premium on all contracts, unless
the person can show to the satisfaction of the Corporation that the
multiple contracts of insurance were without the fault of the person.
(1) If the multiple contracts of insurance are shown to be without
the fault of the person and:
(i) One contract is an additional coverage policy and the other
contract is a Catastrophic Risk Protection policy, the additional
coverage policy will apply if both policies are with the same insurance
provider, or if not, both insurance providers agree, and the
Catastrophic Risk Protection policy will be canceled (If the insurance
providers do not agree, the policy with the earliest date of application
will be in force and the other contract will be canceled); or
(ii) Both contracts are additional coverage policies or both are
Catastrophic Risk Protection policies, the contract with the earliest
signature date on the application will be valid and the other contract
on that crop in the county for that crop year will be canceled, unless
both policies are with the same insurance provider and the insurance
provider agrees otherwise or both policies are with different insurance
providers and both insurance providers agree otherwise.
[[Page 122]]
(2) No liability for any indemnity, prevented planting payment,
replanting payment or premium will attach to the contracts canceled as
specified in paragraphs (d)(1)(i) and (ii) of this section.
(e) The person must repay all amounts received in violation of this
section with interest at the rate contained in the contract (see
Sec. 457.8, paragraph 24).
(f) An insured whose contract with the Corporation or with a company
reinsured by the Corporation under the Act has been terminated because
of violation of the terms of the contract is not eligible to obtain
multiple peril crop insurance under the Act with the Corporation or with
a company reinsured by the Corporation unless the insured can show that
the default in the prior contract was cured prior to the sales closing
date of the contract applied for or unless the insured can show that the
termination was improper and should not result in subsequent
ineligibility.
(g) All applicants for insurance under the Act must advise the
agent, in writing, at the time of application, of any previous
applications for insurance or policies of insurance under the Act and
the present status of any such applications or insurance.
[56 FR 1351, Jan. 14, 1991, as amended at 58 FR 58262, Nov. 1, 1993; 62
FR 65154, Dec. 10, 1997; 63 FR 66712, Dec. 3, 1998; 69 FR 48738, Aug.
10, 2004]
Sec. 457.3 Premium rates, production guarantees or amounts of
insurance, coverage levels, and prices at which indemnities
shall be computed.
(a) The Manager shall establish premium rates, production guarantees
or amounts of insurance, coverage levels, and prices at which
indemnities shall be computed for the insured crop which will be
included in the actuarial table on file in the applicable agents' office
for the county and which may be changed from year to year.
(b) At the time the application for insurance is made, the applicant
will elect an amount of insurance or a coverage level and price from
among those contained in the actuarial table for the crop year.
Sec. 457.4 OMB control numbers.
The information collection requirements contained in these
regulations have been approved by the Office of Management and Budget
(OMB) under the provisions of 44 U.S.C. chapter 35 and have been
assigned OMB number 0563-0053.
[62 FR 65154, Dec. 10, 1997]
Sec. 457.5 Creditors.
An interest of a person in an insured crop existing by virtue of a
lien, mortgage, garnishment, levy, execution, bankruptcy, involuntary
transfer or other similar interest shall not entitle the holder of the
interest to any benefit under the contract.
Sec. 457.6 [Reserved]
Sec. 457.7 The contract.
The insurance contract shall become effective upon the acceptance by
the Corporation or the reinsured company of a duly executed application
for insurance on a form prescribed by the Corporation. Changes made in
the contract shall not affect its continuity from year to year. No
indemnity shall be paid unless the insured complies with all terms and
conditions of the contract, except as provided in the policy. The forms
referred to in the contract are available at the offices of the crop
insurance agent.
[56 FR 1351, Jan. 14, 1991, as amended at 69 FR 48739, Aug. 10, 2004]
Sec. 457.8 The application and policy.
(a) Application for insurance on a form prescribed by the
Corporation, or approved by the Corporation, must be made by any person
who wishes to participate in the program, to cover such person's share
in the insured crop as landlord, owner-operator, crop ownership
interest, or tenant. No other person's interest in the crop may be
insured under an application unless that person's interest is clearly
shown on the application and unless that other person's interest is
insured in accordance with the procedures of the Corporation. The
application must be submitted to the Corporation or the reinsured
company through the crop insurance agent and must be submitted on
[[Page 123]]
or before the applicable sales closing date on file.
(b) FCIC or the reinsured company may reject or discontinue the
acceptance of applications in any county or of any individual
application upon FCIC's determination that the insurance risk is
excessive.
(c) If the producer had a Crop Revenue Coverage, Revenue Assurance,
Income Protection, or Indexed Income Protection crop insurance policy in
effect for the 2010 crop year and has not canceled or changed such
coverage in accordance with such policy, revenue protection will
continue in effect under the Common Crop Insurance Policy Basic
Provisions and no new application is required. Revenue protection will
be at the same coverage level, 100 percent of price, with any applicable
options, endorsements, and enterprise or whole-farm unit structures that
were in effect the previous year still in effect, as long as all
qualifications are met and such coverage remains available.
(1) If the producer had revenue coverage under the Revenue Assurance
crop insurance policy for the 2010 crop year and:
(i) The producer had the fall harvest price option, for the 2011
crop year the producer will have revenue protection under the Common
Crop Insurance Policy Basic Provisions based on the greater of the
projected price or the harvest price; or
(ii) The producer did not have the fall harvest price option, for
the 2011 crop year the producer will have revenue protection under the
Common Crop Insurance Policy Basic Provisions and the harvest price
exclusion.
(2) If the producer had revenue coverage under the Income Protection
or Indexed Income Protection crop insurance policy for the 2010 crop
year, for the 2011 crop year the producer will have revenue protection
under the Common Crop Insurance Policy Basic Provisions and the harvest
price exclusion.
(3) If the producer has revenue protection under paragraph (c) of
this section, the producer may exclude coverage for hail and fire if the
requirements are met.
(d) If the producer had coverage under an Actual Production History
crop insurance policy for a crop under the Common Crop Insurance Policy
Basic Provisions for the 2010 crop year, and that crop now has revenue
protection available, the producer will have yield protection for the
crop under the Common Crop Insurance Policy Basic Provisions in effect
for the 2011 crop year at the same coverage level, and percentage of
price, any applicable options or endorsements, and enterprise unit
structures that were in effect the previous year continue in effect, as
long as all qualifications are met and such coverage remains available.
(e) If the producer had coverage under Actual Production History or
another crop insurance policy for a crop under the Common Crop Insurance
Policy Basic Provisions for the 2010 crop year and that crop does not
have revenue protection available for the 2011 crop year, the producer
will continue with the same crop insurance policy (e.g., Actual
Production History or amount of insurance) until canceled or terminated.
(f) With respect to any crop insurance policy specified in
paragraphs (c) through (e) of this section:
(1) The producer may change their coverage (coverage level, percent
of price, etc.) in accordance with section 3 of the Common Crop
Insurance Policy Basic Provisions or the producer may cancel such
coverage in accordance with section 2 of the Common Crop Insurance
Policy Basic Provisions. If the producer changes their crop insurance
policy (e.g., Actual Production History, yield protection, revenue
protection, amount of insurance, etc.) for any crop year, the producer
must elect the coverage level, percentage of price, any applicable
options, endorsements, and unit structure (enterprise or whole-farm)
that will be in effect under the new crop insurance policy.
(2) If a producer has a properly executed Power of Attorney on file
with the insurance provider, such Power of Attorney will remain in
effect under the Common Crop Insurance Policy Basic Provisions until it
is terminated.
(3) If the producer has a current written agreement in effect for
the crop for multiple crop years, such written
[[Page 124]]
agreement will remain in effect if the terms of the written agreement
are still applicable, the conditions under which the written agreement
was provided have not changed, and the crop insurance policy remains
with the same insurance provider.
Department of Agriculture
Federal Crop Insurance Corporation
[or policy issuing company name]
Common Crop Insurance Policy
(This is a continuous policy. Refer to section 2.)
FCIC Policies
This is an insurance policy issued by the Federal Crop Insurance
Corporation (FCIC), a United States government agency. The provisions of
the policy may not be waived or modified in any way by us, your
insurance agent or any employee of USDA unless the policy specifically
authorizes a waiver or modification by written agreement. Procedures
(handbooks, manuals, memoranda, and bulletins), issued by us and
published on the RMA's Web site at http://www.rma.usda.gov/ or a
successor Web site will be used in the administration of this policy,
including the adjustment of any loss or claim submitted hereunder.
Throughout this policy, ``you'' and ``your'' refer to the named
insured shown on the accepted application and ``we,'' ``us,'' and
``our'' refer to the Federal Crop Insurance Corporation. Unless the
context indicates otherwise, use of the plural form of a word includes
the singular and use of the singular form of the word includes the
plural.
AGREEMENT TO INSURE: In return for the payment of the premium, and
subject to all of the provisions of this policy, we agree with you to
provide the insurance as stated in this policy. If there is a conflict
between the Act, the regulations published at 7 CFR chapter IV, and the
procedures issued by us, the order of priority is: (1) The Act; (2) the
regulations; and (3) the procedures issued by us, with (1) controlling
(2), etc. If there is a conflict between the policy provisions published
at 7 CFR part 457 and the administrative regulations published at 7 CFR
part 400, the policy provisions published at 7 CFR part 457 control. If
a conflict exists among the policy provisions, the order of priority is:
(1) The Catastrophic Risk Protection Endorsement, as applicable; (2) the
Special Provisions; (3) the Commodity Exchange Price Provisions, as
applicable; (4) the Crop Provisions; and (5) these Basic Provisions,
with (1) controlling (2), etc.
Reinsured Policies
This insurance policy is reinsured by the Federal Crop Insurance
Corporation (FCIC) under the provisions of the Federal Crop Insurance
Act (Act) (7 U.S.C. 1501 et seq.). All provisions of the policy and
rights and responsibilities of the parties are specifically subject to
the Act. The provisions of the policy may not be waived or varied in any
way by us, our insurance agent or any other contractor or employee of
ours or any employee of USDA unless the policy specifically authorizes a
waiver or modification by written agreement. We will use the procedures
(handbooks, manuals, memoranda and bulletins), as issued by FCIC and
published on the RMA's Web site at http://www.rma.usda.gov/ or a
successor Web site, in the administration of this policy, including the
adjustment of any loss or claim submitted hereunder. In the event that
we cannot pay your loss because we are insolvent or are otherwise unable
to perform our duties under our reinsurance agreement with FCIC, your
claim will be settled in accordance with the provisions of this policy
and FCIC will be responsible for any amounts owed. No state guarantee
fund will be liable for your loss.
Throughout this policy, ``you'' and ``your'' refer to the named
insured shown on the accepted application and ``we,'' ``us,'' and
``our'' refer to the insurance company providing insurance. Unless the
context indicates otherwise, use of the plural form of a word includes
the singular and use of the singular form of the word includes the
plural.
AGREEMENT TO INSURE: In return for the payment of the premium, and
subject to all of the provisions of this policy, we agree with you to
provide the insurance as stated in this policy. If there is a conflict
between the Act, the regulations published at 7 CFR chapter IV, and the
procedures as issued by FCIC, the order of priority is: (1) The Act; (2)
the regulations; and (3) the procedures as issued by FCIC, with (1)
controlling (2), etc. If there is a conflict between the policy
provisions published at 7 CFR part 457 and the administrative
regulations published at 7 CFR part 400, the policy provisions published
at 7 CFR part 457 control. If a conflict exists among the policy
provisions, the order of priority is: (1) The Catastrophic Risk
Protection Endorsement, as applicable; (2) the Special Provisions; (3)
the Commodity Exchange Price Provisions, as applicable; (4) the Crop
Provisions; and (5) these Basic Provisions, with (1) controlling (2),
etc.
Terms and Conditions
Basic Provisions
1. Definitions
Abandon. Failure to continue to care for the crop, providing care so
insignificant as to provide no benefit to the crop, or failure
[[Page 125]]
to harvest in a timely manner, unless an insured cause of loss prevents
you from properly caring for or harvesting the crop or causes damage to
it to the extent that most producers of the crop on acreage with similar
characteristics in the area would not normally further care for or
harvest it.
Acreage report. A report required by section 6 of these Basic
Provisions that contains, in addition to other required information,
your report of your share of all acreage of an insured crop in the
county, whether insurable or not insurable.
Acreage reporting date. The date contained in the Special Provisions
or as provided in section 6 by which you are required to submit your
acreage report.
Act. The Federal Crop Insurance Act (7 U.S.C. 1501 et seq.).
Actual Production History (APH). A process used to determine
production guarantees in accordance with 7 CFR part 400, subpart (G).
Actual yield. The yield per acre for a crop year calculated from the
production records or claims for indemnities. The actual yield is
determined by dividing total production (which includes harvested and
appraised production) by planted acres.
Actuarial documents. The information for the crop year which is
available for public inspection in your agent's office and published on
RMA's Web site and which shows available crop insurance policies,
coverage levels, information needed to determine amounts of insurance,
prices, premium rates, premium adjustment percentages, practices,
particular types or varieties of the insurable crop, insurable acreage,
and other related information regarding crop insurance in the county.
Additional coverage. A level of coverage greater than catastrophic
risk protection.
Administrative fee. An amount you must pay for catastrophic risk
protection, and additional coverage for each crop year as specified in
section 7 and the Catastrophic Risk Protection Endorsement.
Agricultural commodity. Any crop or other commodity produced,
regardless of whether or not it is insurable.
Agricultural experts. Persons who are employed by the Cooperative
Extension System or the agricultural departments of universities, or
other persons approved by FCIC, whose research or occupation is related
to the specific crop or practice for which such expertise is sought.
Annual crop. An agricultural commodity that normally must be planted
each year.
Application. The form required to be completed by you and accepted
by us before insurance coverage will commence. This form must be
completed and filed in your agent's office not later than the sales
closing date of the initial insurance year for each crop for which
insurance coverage is requested. If cancellation or termination of
insurance coverage occurs for any reason, including but not limited to
indebtedness, suspension, debarment, disqualification, cancellation by
you or us or violation of the controlled substance provisions of the
Food Security Act of 1985, a new application must be filed for the crop.
Insurance coverage will not be provided if you are ineligible under the
contract or under any Federal statute or regulation.
Approved yield. The actual production history (APH) yield,
calculated and approved by the verifier, used to determine the
production guarantee by summing the yearly actual, assigned, adjusted or
unadjusted transitional yields and dividing the sum by the number of
yields contained in the database, which will always contain at least
four yields. The database may contain up to 10 consecutive crop years of
actual or assigned yields. The approved yield may have yield adjustments
elected under section 36, revisions according to section 3, or other
limitations according to FCIC approved procedures applied when
calculating the approved yield.
Area. Land surrounding the insured acreage with geographic
characteristics, topography, soil types and climatic conditions similar
to the insured acreage.
Assignment of indemnity. A transfer of policy rights, made on our
form, and effective when approved by us in writing, whereby you assign
your right to an indemnity payment for the crop year only to creditors
or other persons to whom you have a financial debt or other pecuniary
obligation.
Average yield. The yield calculated by totaling the yearly actual
yields, assigned yields in accordance with sections 3(f)(1) (failure to
provide production report), 3(h)(1) (excessive yields), and 3(i) (second
crop planted without double cropping history on prevented planting
acreage), and adjusted or unadjusted transitional yields, and dividing
the total by the number of yields contained in the database.
Basic unit. All insurable acreage of the insured crop in the county
on the date coverage begins for the crop year:
(1) In which you have 100 percent crop share; or
(2) Which is owned by one person and operated by another person on a
share basis. (Example: If, in addition to the land you own, you rent
land from five landlords, three on a crop share basis and two on a cash
basis, you would be entitled to four units; one for each crop share
lease and one that combines the two cash leases and the land you own.)
Land which would otherwise be one unit may, in certain instances, be
divided according to guidelines contained in section 34 of these Basic
Provisions and in the applicable Crop Provisions.
Buffer zone. A parcel of land, as designated in your organic plan,
that separates agricultural commodities grown under organic practices
from agricultural commodities grown
[[Page 126]]
under non-organic practices, and used to minimize the possibility of
unintended contact by prohibited substances or organisms.
Cancellation date. The calendar date specified in the Crop
Provisions on which coverage for the crop will automatically renew
unless canceled in writing by either you or us or terminated in
accordance with the policy terms.
Catastrophic risk protection. The minimum level of coverage offered
by FCIC. Catastrophic risk protection is not available with revenue
protection.
Catastrophic Risk Protection Endorsement. The part of the crop
insurance policy that contains provisions of insurance that are specific
to catastrophic risk protection.
Certified organic acreage. Acreage in the certified organic farming
operation that has been certified by a certifying agent as conforming to
organic standards in accordance with 7 CFR part 205.
Certifying agent. A private or governmental entity accredited by the
USDA Secretary of Agriculture for the purpose of certifying a
production, processing or handling operation as organic.
Claim for indemnity. A claim made on our form that contains the
information necessary to pay the indemnity, as specified in the
applicable FCIC issued procedures, and complies with the requirements in
section 14.
Code of Federal Regulations (CFR). The codification of general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. Rules published in
the Federal Register by FCIC are contained in 7 CFR chapter IV. The full
text of the CFR is available in electronic format at http://
www.access.gpo.gov/ or a successor Web site.
Commodity Exchange Price Provisions (CEPP). A part of the policy
that is used for all crops for which revenue protection is available,
regardless of whether you elect revenue protection or yield protection
for such crops. This document includes the information necessary to
derive the projected price and the harvest price for the insured crop,
as applicable.
Consent. Approval in writing by us allowing you to take a specific
action.
Contract. (See ``policy'').
Contract change date. The calendar date by which changes to the
policy, if any, will be made available in accordance with section 4 of
these Basic Provisions.
Conventional farming practice. A system or process that is necessary
to produce an agricultural commodity, excluding organic farming
practices.
Cooperative Extension System. A nationwide network consisting of a
State office located at each State's land-grant university, and local or
regional offices. These offices are staffed by one or more agricultural
experts, who work in cooperation with the Cooperative State Research,
Education and Extension Service, and who provide information to
agricultural producers and others.
County. Any county, parish, or other political subdivision of a
state shown on your accepted application, including acreage in a field
that extends into an adjoining county if the county boundary is not
readily discernible.
Coverage. The insurance provided by this policy, against insured
loss of production or value, by unit as shown on your summary of
coverage.
Coverage begins, date. The calendar date insurance begins on the
insured crop, as contained in the Crop Provisions, or the date planting
begins on the unit (see section 11 of these Basic Provisions for
specific provisions relating to prevented planting).
Cover crop. A crop generally recognized by agricultural experts as
agronomically sound for the area for erosion control or other purposes
related to conservation or soil improvement. A cover crop may be
considered to be a second crop (see the definition of ``second crop'').
Crop Provisions. The part of the policy that contains the specific
provisions of insurance for each insured crop.
Crop year. The period within which the insured crop is normally
grown, regardless of whether or not it is actually grown, and designated
by the calendar year in which the insured crop is normally harvested,
unless otherwise specified in the Crop Provisions.
Damage. Injury, deterioration, or loss of production of the insured
crop due to insured or uninsured causes.
Days. Calendar days.
Deductible. The amount determined by subtracting the coverage level
percentage you choose from 100 percent. For example, if you elected a 65
percent coverage level, your deductible would be 35 percent (100% - 65%
= 35%).
Delinquent debt. Has the same meaning as the term defined in 7 CFR
part 400, subpart U.
Disinterested third party. A person that does not have any familial
relationship (parents, brothers, sisters, children, spouse,
grandchildren, aunts, uncles, nieces, nephews, first cousins, or
grandparents, related by blood, adoption or marriage, are considered to
have a familial relationship) with you or who will not benefit
financially from the sale of the insured crop. Persons who are
authorized to conduct quality analysis in accordance with the Crop
Provisions are considered disinterested third parties unless there is a
familial relationship.
Double crop. Producing two or more crops for harvest on the same
acreage in the same crop year.
Earliest planting date. The initial planting date contained in the
Special Provisions, which is the earliest date you may plant an
[[Page 127]]
insured agricultural commodity and qualify for a replanting payment if
such payments are authorized by the Crop Provisions.
End of insurance period, date of. The date upon which your crop
insurance coverage ceases for the crop year (see Crop Provisions and
section 11).
Enterprise unit. All insurable acreage of the same insured crop in
the county in which you have a share on the date coverage begins for the
crop year, provided the requirements of section 34 are met.
Field. All acreage of tillable land within a natural or artificial
boundary (e.g., roads, waterways, fences, etc.). Different planting
patterns or planting different crops do not create separate fields.
Final planting date. The date contained in the Special Provisions
for the insured crop by which the crop must initially be planted in
order to be insured for the full production guarantee or amount of
insurance per acre.
First insured crop. With respect to a single crop year and any
specific crop acreage, the first instance that an agricultural commodity
is planted for harvest or prevented from being planted and is insured
under the authority of the Act. For example, if winter wheat that is not
insured is planted on acreage that is later planted to soybeans that are
insured, the first insured crop would be soybeans. If the winter wheat
was insured, it would be the first insured crop.
FSA. The Farm Service Agency, an agency of the USDA, or a successor
agency.
FSA farm serial number. The number assigned to the farm by the local
FSA office.
Generally recognized. When agricultural experts or organic
agricultural experts, as applicable, are aware of the production method
or practice and there is no genuine dispute regarding whether the
production method or practice allows the crop to make normal progress
toward maturity and produce at least the yield used to determine the
production guarantee or amount of insurance.
Good farming practices. The production methods utilized to produce
the insured crop and allow it to make normal progress toward maturity
and produce at least the yield used to determine the production
guarantee or amount of insurance, including any adjustments for late
planted acreage, which are: (1) For conventional or sustainable farming
practices, those generally recognized by agricultural experts for the
area; or (2) for organic farming practices, those generally recognized
by organic agricultural expertsfor the area or contained in the organic
plan. We may, or you may request us to, contact FCIC to determine
whether or not production methods will be considered to be ``good
farming practices.''
Harvest price. A price determined in accordance with the Commodity
Exchange Price Provisions and used to value production to count for
revenue protection.
Harvest price exclusion. Revenue protection with the use of the
harvest price excluded when determining your revenue protection
guarantee. This election is continuous unless canceled by the
cancellation date.
Household. A domestic establishment including the members of a
family (parents, brothers, sisters, children, spouse, grandchildren,
aunts, uncles, nieces, nephews, first cousins, or grandparents, related
by blood, adoption or marriage, are considered to be family members) and
others who live under the same roof.
Insurable interest. Your percentage of the insured crop that is at
financial risk.
Insurable loss. Damage for which coverage is provided under the
terms of your policy, and for which you accept an indemnity payment.
Insured. The named person as shown on the application accepted by
us. This term does not extend to any other person having a share or
interest in the crop (for example, a partnership, landlord, or any other
person) unless specifically indicated on the accepted application.
Insured crop. The crop in the county for which coverage is available
under your policy as shown on the application accepted by us.
Intended acreage report. A report of the acreage you intend to
plant, by crop, for the current crop year and used solely for the
purpose of establishing eligible prevented planting acreage, as required
in section 17.
Interplanted. Acreage on which two or more crops are planted in a
manner that does not permit separate agronomic maintenance or harvest of
the insured crop.
Irrigated practice. A method of producing a crop by which water is
artificially applied during the growing season by appropriate systems
and at the proper times, with the intention of providing the quantity of
water needed to produce at least the yield used to establish the
irrigated production guarantee or amount of insurance on the irrigated
acreage planted to the insured crop.
Late planted. Acreage initially planted to the insured crop after
the final planting date.
Late planting period. The period that begins the day after the final
planting date for the insured crop and ends 25 days after the final
planting date, unless otherwise specified in the Crop Provisions or
Special Provisions.
Liability. Your total amount of insurance, value of your production
guarantee, or revenue protection guarantee for the unit determined in
accordance with the Settlement of Claim provisions of the applicable
Crop Provisions.
Limited resource farmer. Has the same meaning as the term defined by
USDA at http://www.lrftool.sc.egov.usda.gov/LRP-D.htm.
Native sod. Acreage that has no record of being tilled (determined
in accordance with
[[Page 128]]
FSA or other verifiable records acceptable to us) for the production of
an annual crop on or before May 22, 2008, and on which the plant cover
is composed principally of native grasses, grass-like plants, forbs, or
shrubs suitable for grazing and browsing.
Negligence. The failure to use such care as a reasonably prudent and
careful person would use under similar circumstances.
Non-contiguous. Acreage of an insured crop that is separated from
other acreage of the same insured crop by land that is neither owned by
you nor rented by you for cash or a crop share. However, acreage
separated by only a public or private right-of-way, waterway, or an
irrigation canal will be considered as contiguous.
Offset. The act of deducting one amount from another amount.
Organic agricultural experts. Persons who are employed by the
following organizations: Appropriate Technology Transfer for Rural
Areas, Sustainable Agriculture Research and Education or the Cooperative
Extension System, the agricultural departments of universities, or other
persons approved by FCIC, whose research or occupation is related to the
specific organic crop or practice for which such expertise is sought.
Organic crop. An agricultural commodity that is organically produced
consistent with section 2103 of the Organic Foods Production Act of 1990
(7 U.S.C. 6502).
Organic farming practice. A system of plant production practices
used to produce an organic crop that is approved by a certifying agent
in accordance with 7 CFR part 205.
Organic plan. A written plan, in accordance with the National
Organic Program published in 7 CFR part 205, that describes the organic
farming practices that you and a certifying agent agree upon annually or
at such other times as prescribed by the certifying agent.
Organic standards. Standards in accordance with the Organic Foods
Production Act of 1990 (7 U.S.C. 6501 et seq.) and 7 CFR part 205.
Perennial crop. A plant, bush, tree or vine crop that has a life
span of more than one year.
Person. An individual, partnership, association, corporation,
estate, trust, or other legal entity, and wherever applicable, a State
or a political subdivision or agency of a State. ``Person'' does not
include the United States Government or any agency thereof.
Planted acreage. Land in which seed, plants, or trees have been
placed, appropriate for the insured crop and planting method, at the
correct depth, into a seedbed that has been properly prepared for the
planting method and production practice.
Policy. The agreement between you and us to insure an agricultural
commodity and consisting of the accepted application, these Basic
Provisions, the Crop Provisions, the Special Provisions, the Commodity
Exchange Price Provisions, if applicable, other applicable endorsements
or options, the actuarial documents for the insured agricultural
commodity, the Catastrophic Risk Protection Endorsement, if applicable,
and the applicable regulations published in 7 CFR chapter IV. Insurance
for each agricultural commodity in each county will constitute a
separate policy.
Practical to replant. Our determination, after loss or damage to the
insured crop, based on all factors, including, but not limited to
moisture availability, marketing window, condition of the field, and
time to crop maturity, that replanting the insured crop will allow the
crop to attain maturity prior to the calendar date for the end of the
insurance period. It will be considered to be practical to replant
regardless of availability of seed or plants, or the input costs
necessary to produce the insured crop such as those that would be
incurred for seed or plants, irrigation water, etc.
Prairie Pothole National Priority Area. Consists of specific
counties within the States of Iowa, Minnesota, Montana, North Dakota or
South Dakota as specified on the RMA's Web site at http://
www.rma.usda.gov/, or a successor Web site, or the Farm Service Agency,
Agricultural Resource Conservation Program 2-CRP (Revision 4), dated
April 28, 2008, or a subsequent publication.
Premium billing date. The earliest date upon which you will be
billed for insurance coverage based on your acreage report. The premium
billing date is contained in the Special Provisions.
Prevented planting. Failure to plant the insured crop by the final
planting date designated in the Special Provisions for the insured crop
in the county, or within any applicable late planting period, due to an
insured cause of loss that is general to the surrounding area and that
prevents other producers from planting acreage with similar
characteristics. Failure to plant because of uninsured causes such as
lack of proper equipment or labor to plant the acreage, or use of a
particular production method, is not considered prevented planting.
Price election. The amounts contained in the Special Provisions, or
in an addendum thereto, that is the value per pound, bushel, ton,
carton, or other applicable unit of measure for the purposes of
determining premium and indemnity under the policy. A price election is
not applicable for crops for which revenue protection is available.
Production guarantee (per acre). The number of pounds, bushels,
tons, cartons, or other applicable units of measure determined by
multiplying the approved yield per acre by the coverage level percentage
you elect.
Production report. A written record showing your annual production
and used by us to determine your yield for insurance purposes in
[[Page 129]]
accordance with section 3. The report contains yield information for
previous years, including planted acreage and production. This report
must be supported by written verifiable records from a warehouseman or
buyer of the insured crop, by measurement of farm-stored production, or
by other records of production approved by us on an individual case
basis in accordance with FCIC approved procedures.
Prohibited substance. Any biological, chemical, or other agent that
is prohibited from use or is not included in the organic standards for
use on any certified organic, transitional or buffer zone acreage. Lists
of such substances are contained at 7 CFR part 205.
Projected price. The price for each crop determined in accordance
with the Commodity Exchange Price Provisions. The applicable projected
price is used for each crop for which revenue protection is available,
regardless of whether you elect to obtain revenue protection or yield
protection for such crop.
Replanted crop. The same agricultural commodity replanted on the
same acreage as the first insured crop for harvest in the same crop year
if the replanting is specifically made optional by the policy and you
elect to replant the crop and insure it under the policy covering the
first insured crop, or replanting is required by the policy.
Replanting. Performing the cultural practices necessary to prepare
the land to replace the seed or plants of the damaged or destroyed
insured crop and then replacing the seed or plants of the same crop in
the same insured acreage. The same crop does not necessarily mean the
same type or variety of the crop unless different types or varieties
constitute separate crops or it is otherwise specified in the policy.
Representative sample. Portions of the insured crop that must remain
in the field for examination and review by our loss adjuster when making
a crop appraisal, as specified in the Crop Provisions. In certain
instances we may allow you to harvest the crop and require only that
samples of the crop residue be left in the field.
Revenue protection. A plan of insurance that provides protection
against loss of revenue due to a production loss, price decline or
increase, or a combination of both. If the harvest price exclusion is
elected, the insurance coverage provides protection only against loss of
revenue due to a production loss, price decline, or a combination of
both.
Revenue protection guarantee (per acre). For revenue protection
only, the amount determined by multiplying the production guarantee (per
acre) by the greater of your projected price or your harvest price. If
the harvest price exclusion is elected, the production guarantee (per
acre) is only multiplied by your projected price.
RMA's Web site. A Web site hosted by RMA and located at http://
www.rma.usda.gov/or a successor Web site.
Sales closing date. A date contained in the Special Provisions by
which an application must be filed. The last date by which you may
change your crop insurance coverage for a crop year.
Second crop. With respect to a single crop year, the next occurrence
of planting any agricultural commodity for harvest following a first
insured crop on the same acreage. The second crop may be the same or a
different agricultural commodity as the first insured crop, except the
term does not include a replanted crop. A cover crop, planted after a
first insured crop and planted for the purpose of haying, grazing or
otherwise harvesting in any manner or that is hayed or grazed during the
crop year, or that is otherwise harvested is considered to be a second
crop. A cover crop that is covered by FSA's noninsured crop disaster
assistance program (NAP) or receives other USDA benefits associated with
forage crops will be considered as planted for the purpose of haying,
grazing or otherwise harvesting. A crop meeting the conditions stated
herein will be considered to be a second crop regardless of whether or
not it is insured. Notwithstanding the references to haying and grazing
as harvesting in these Basic Provisions, for the purpose of determining
the end of the insurance period, harvest of the crop will be as defined
in the applicable Crop Provisions.
Section. For the purposes of unit structure, a unit of measure under
a rectangular survey system describing a tract of land usually one mile
square and usually containing approximately 640 acres.
Share. Your insurable interest in the insured crop as an owner,
operator, or tenant at the time insurance attaches. However, only for
the purpose of determining the amount of indemnity, your share will not
exceed your share at the earlier of the time of loss or the beginning of
harvest.
Special Provisions. The part of the policy that contains specific
provisions of insurance for each insured crop that may vary by
geographic area.
State. The state shown on your accepted application.
Substantial beneficial interest. An interest held by any person of
at least 10 percent in you (e.g., there are two partnerships that each
have a 50 percent interest in you and each partnership is made up of two
individuals, each with a 50 percent share in the partnership. In this
case, each individual would be considered to have a 25 percent interest
in you, and both the partnerships and the individuals would have a
substantial beneficial interest in you. The spouses of the individuals
would not be considered to have a substantial beneficial interest unless
the spouse was one of the individuals that made
[[Page 130]]
up the partnership. However, if each partnership is made up of six
individuals with equal interests, then each would only have an 8.33
percent interest in you and although the partnership would still have a
substantial beneficial interest in you, the individuals would not for
the purposes of reporting in section 2). The spouse of any individual
applicant or individual insured will be presumed to have a substantial
beneficial interest in the applicant or insured unless the spouses can
prove they are legally separated or otherwise legally separate under the
applicable State dissolution of marriage laws. Any child of an
individual applicant or individual insured will not be considered to
have a substantial beneficial interest in the applicant or insured
unless the child has a separate legal interest in such person.
Summary of coverage. Our statement to you, based upon your acreage
report, specifying the insured crop and the guarantee or amount of
insurance coverage provided by unit.
Sustainable farming practice. A system or process for producing an
agricultural commodity, excluding organic farming practices, that is
necessary to produce the crop and is generally recognized by
agricultural experts for the area to conserve or enhance natural
resources and the environment.
Tenant. A person who rents land from another person for a share of
the crop or a share of the proceeds of the crop (see the definition of
``share'' above).
Termination date. The calendar date contained in the Crop Provisions
upon which your insurance ceases to be in effect because of nonpayment
of any amount due us under the policy, including premium.
Tilled. The termination of existing plants by plowing, disking,
burning, application of chemicals, or by other means to prepare acreage
for the production of an annual crop.
Timely planted. Planted on or before the final planting date
designated in the Special Provisions for the insured crop in the county.
Transitional acreage. Acreage on which organic farming practices are
being followed that does not yet qualify to be designated as organic
acreage.
USDA. United States Department of Agriculture.
Verifiable records. Has the same meaning as the term defined in 7
CFR part 400, subpart G.
Void. When the policy is considered not to have existed for a crop
year.
Whole-farm unit. All insurable acreage of all the insured crops
planted in the county in which you have a share on the date coverage
begins for each crop for the crop year and for which the whole-farm unit
structure is available in accordance with section 34.
Written agreement. A document that alters designated terms of a
policy as authorized under these Basic Provisions, the Crop Provisions,
or the Special Provisions for the insured crop (see section 18).
Yield protection. A plan of insurance that only provides protection
against a production loss and is available only for crops for which
revenue protection is available.
Yield protection guarantee (per acre). When yield protection is
selected for a crop that has revenue protection available, the amount
determined by multiplying the production guarantee by your projected
price.
2. Life of Policy, Cancellation, and Termination
(a) This is a continuous policy and will remain in effect for each
crop year following the acceptance of the original application until
canceled by you in accordance with the terms of the policy or terminated
by operation of the terms of the policy or by us. In accordance with
section 4, FCIC may change the coverage provided from year to year.
(b) With respect to your application for insurance:
(1) You must include your social security number (SSN) if you are an
individual (if you are an individual applicant operating as a business,
you may provide an employer identification number (EIN) but you must
also provide your SSN); or
(2) You must include your EIN if you are a person other than an
individual;
(3) In addition to the requirements of section 2(b)(1) or (2), you
must include the following for all persons who have a substantial
beneficial interest in you:
(i) The SSN for individuals; or
(ii) The EIN for persons other than individuals and the SSNs for all
individuals that comprise the person with the EIN if such individuals
also have a substantial beneficial interest in you;
(4) You must include:
(i) Your election of revenue protection, yield protection, or other
available plan of insurance; coverage level; percentage of price
election or percentage of projected price, as applicable; crop, type,
variety, or class; and any other material information required on the
application to insure the crop; and
(ii) All the information required in section 2(b)(4)(i) or your
application will not be accepted and no coverage will be provided;
(5) Your application will not be accepted and no insurance will be
provided for the year of application if the application does not contain
your SSN or EIN. If your application contains an incorrect SSN or EIN
for you, your application will be considered not to have been accepted,
no insurance will be provided for the year of application and for any
subsequent crop years, as applicable, and such policies will be void if:
(i) Such number is not corrected by you; or
(ii) You correct the SSN or EIN but:
[[Page 131]]
(A) You cannot prove that any error was inadvertent (Simply stating
the error was inadvertent is not sufficient to prove the error was
inadvertent); or
(B) It is determined that the incorrect number would have allowed
you to obtain disproportionate benefits under the crop insurance
program, you are determined to be ineligible for insurance or you could
avoid an obligation or requirement under any State or Federal law;
(6) With respect to persons with a substantial beneficial interest
in you:
(i) The insurance coverage for all crops included on your
application will be reduced proportionately by the percentage interest
in you of persons with a substantial beneficial interest in you
(presumed to be 50 percent for spouses of individuals) if the SSNs or
EINs of such persons are included on your application, the SSNs or EINs
are correct, and the persons with a substantial beneficial interest in
you are ineligible for insurance;
(ii) Your policies for all crops included on your application, and
for all applicable crop years, will be void if the SSN or EIN of any
person with a substantial beneficial interest in you is incorrect or is
not included on your application and:
(A) Such number is not corrected or provided by you, as applicable;
(B) You cannot prove that any error or omission was inadvertent
(Simply stating the error or omission was inadvertent is not sufficient
to prove the error or omission was inadvertent); or
(C) Even after the correct SSN or EIN is provided by you, it is
determined that the incorrect or omitted SSN or EIN would have allowed
you to obtain disproportionate benefits under the crop insurance
program, the person with a substantial beneficial interest in you is
determined to be ineligible for insurance, or you or the person with a
substantial beneficial interest in you could avoid an obligation or
requirement under any State or Federal law; or
(iii) Except as provided in sections 2(b)(6)(ii)(B) and (C), your
policies will not be voided if you subsequently provide the correct SSN
or EIN for persons with a substantial beneficial interest in you and the
persons are eligible for insurance;
(7) When any of your policies are void under sections 2(b)(5) or
(6):
(i) You must repay any indemnity, prevented planting payment or
replant payment that may have been paid for all applicable crops and
crop years;
(ii) Even though the policies are void, you will still be required
to pay an amount equal to 20 percent of the premium that you would
otherwise be required to pay; and
(iii) If you previously paid premium or administrative fees, any
amount in excess of the amount required in section 2(b)(7)(ii) will be
returned to you;
(8) Notwithstanding any of the provisions in this section, if you
certify to an incorrect SSN or EIN, or receive an indemnity, prevented
planting payment or replant payment and the SSN or EIN was not correct,
you may be subject to civil, criminal or administrative sanctions;
(9) If any of the information regarding persons with a substantial
beneficial interest in you changes after the sales closing date for the
previous crop year, you must revise your application by the sales
closing date for the current crop year to reflect the correct
information. However, if such information changed less than 30 days
before the sales closing date for the current crop year, you must revise
your application by the sales closing date for the next crop year. If
you fail to provide the required revisions, the provisions in section
2(b)(6) will apply; and
(10) If you are, or a person with a substantial beneficial interest
in you is, not eligible to obtain a SSN or EIN, whichever is required,
you must request an assigned number for the purposes of this policy from
us:
(i) A number will be provided only if you can demonstrate you are,
or a person with a substantial beneficial interest in you is, eligible
to receive Federal benefits;
(ii) If a number cannot be provided for you in accordance with
section 2(b)(10)(i), your application will not be accepted; or
(iii) If a number cannot be provided for any person with a
substantial beneficial interest in you in accordance with section
2(b)(10)(i), the amount of coverage for all crops on the application
will be reduced proportionately by the percentage interest of such
person in you.
(c) After acceptance of the application, you may not cancel this
policy for the initial crop year. Thereafter, the policy will continue
in force for each succeeding crop year unless canceled or terminated as
provided below.
(d) Either you or we may cancel this policy after the initial crop
year by providing written notice to the other on or before the
cancellation date shown in the Crop Provisions.
(e) Any amount due to us for any policy authorized under the Act
will be offset from any indemnity or prevented planting payment due you
for this or any other crop insured with us under the authority of the
Act.
(1) Even if your claim has not yet been paid, you must still pay the
premium and administrative fee on or before the termination date for you
to remain eligible for insurance.
(2) If we offset any amount due us from an indemnity or prevented
planting payment owed to you, the date of payment for the purpose of
determining whether you have a delinquent debt will be the date that you
submit the claim for indemnity in accordance with section 14(e) (Your
Duties).
(f) A delinquent debt for any policy will make you ineligible to
obtain crop insurance
[[Page 132]]
authorized under the Act for any subsequent crop year and result in
termination of all policies in accordance with section 2(f)(2).
(1) With respect to ineligibility:
(i) Ineligibility for crop insurance will be effective on:
(A) The date that a policy was terminated in accordance with section
2(f)(2) for the crop for which you failed to pay premium, an
administrative fee, or any related interest owed, as applicable;
(B) The payment due date contained in any notification of
indebtedness for any overpaid indemnity, prevented planting payment or
replanting payment, if you fail to pay the amount owed, including any
related interest owed, as applicable, by such due date;
(C) The termination date for the crop year prior to the crop year in
which a scheduled payment is due under a written payment agreement if
you fail to pay the amount owed by any payment date in any agreement to
pay the debt; or
(D) The termination date the policy was or would have been
terminated under sections 2(f)(2)(i)(A), (B) or (C) if your bankruptcy
petition is dismissed before discharge.
(ii) If you are ineligible and a policy has been terminated in
accordance with section 2(f)(2), you will not receive any indemnity,
prevented planting payment or replanting payment, if applicable, and
such ineligibility and termination of the policy may affect your
eligibility for benefits under other USDA programs. Any indemnity,
prevented planting payment or replanting payment that may be owed for
the policy before it has been terminated will remain owed to you, but
may be offset in accordance with section 2(e), unless your policy was
terminated in accordance with sections 2(f)(2)(i)(A), (B), (D), or (E).
(2) With respect to termination:
(i) Termination will be effective on:
(A) For a policy with unpaid administrative fees or premiums, the
termination date immediately subsequent to the billing date for the crop
year (For policies for which the sales closing date is prior to the
termination date, such policies will terminate for the current crop year
even if insurance attached prior to the termination date. Such
termination will be considered effective as of the sales closing date
and no insurance will be considered to have attached for the crop year
and no indemnity, prevented planting or replant payment will be owed);
(B) For a policy with other amounts due, the termination date
immediately following the date you have a delinquent debt (For policies
for which the sales closing date is prior to the termination date, such
policies will terminate for the current crop year even if insurance
attached prior to the termination date. Such termination will be
considered effective as of the sales closing date and no insurance will
be considered to have attached for the crop year and no indemnity,
prevented planting or replant payment will be owed);
(C) For all other policies that are issued by us under the authority
of the Act, the termination date that coincides with the termination
date for the policy with the delinquent debt or, if there is no
coincidental termination date, the termination date immediately
following the date you become ineligible;
(D) For execution of a written payment agreement and failure to make
any scheduled payment, the termination date for the crop year prior to
the crop year in which you failed to make the scheduled payment (for
this purpose only, the crop year will start the day after the
termination date and end on the next termination date, e.g., if the
termination date is November 30 and you fail to make a payment on
November 15, 2011, your policy will terminate on November 30, 2010, for
the 2011 crop year); or
(E) For dismissal of a bankruptcy petition before discharge, the
termination date the policy was or would have been terminated under
sections 2(f)(2)(i)(A), (B) or (C).
(ii) For all policies terminated under sections 2(f)(2)(i)(A), (B),
(D), or (E), any indemnities, prevented planting payments or replanting
payments paid subsequent to the termination date must be repaid.
(iii) Once the policy is terminated, it cannot be reinstated for the
current crop year unless the termination was in error. Failure to timely
pay because of illness, bad weather, or other such extenuating
circumstances is not grounds for reinstatement in the current year.
(3) To regain eligibility, you must:
(i) Repay the delinquent debt in full;
(ii) Execute a written payment agreement and make payments in
accordance with the agreement (We will not enter into a written payment
agreement with you if you have previously failed to make a scheduled
payment under the terms of any other payment agreement with us or any
other insurance provider); or
(iii) File a petition to have your debts discharged in bankruptcy
(Dismissal of the bankruptcy petition before discharge will terminate
all policies in effect retroactive to the date your policy would have
been terminated in accordance with section 2(f)(2)(i)).
(4) After you become eligible for crop insurance, if you want to
obtain coverage for your crops, you must submit a new application on or
before the sales closing date for the crop (Since applications for crop
insurance cannot be accepted after the sales closing date, if you make
any payment after the sales closing date, you cannot apply for insurance
until the next crop year).
(5) For example, for the 2011 crop year, if crop A, with a
termination date of October 31, 2010, and crop B, with a termination
date
[[Page 133]]
of March 15, 2011, are insured and you do not pay the premium for crop A
by the termination date, you are ineligible for crop insurance as of
October 31, 2010, and crop A's policy is terminated as of that date.
Crop B's policy does not terminate until March 15, 2011, and an
indemnity for the 2010 crop year may still be owed. If you enter into a
written payment agreement on September 25, 2011, the earliest date by
which you can obtain crop insurance for crop A is to apply for crop
insurance by the October 31, 2011, sales closing date and for crop B is
to apply for crop insurance by the March 15, 2012, sales closing date.
If you fail to make a payment that was scheduled to be made on April 1,
2012, your policy will terminate as of October 31, 2011, for crop A, and
March 15, 2012, for crop B, and no indemnity, prevented planting payment
or replant payment will be due for that crop year for either crop. You
will not be eligible to apply for crop insurance for any crop until
after the amounts owed are paid in full or you file a petition to
discharge the debt in bankruptcy.
(6) If you are determined to be ineligible under section 2(f),
persons with a substantial beneficial interest in you may also be
ineligible until you become eligible again.
(g) In cases where there has been a death, disappearance, judicially
declared incompetence, or dissolution of any insured person:
(1) If any married individual insured dies, disappears, or is
judicially declared incompetent, the named insured on the policy will
automatically convert to the name of the spouse if:
(i) The spouse was included on the policy as having a substantial
beneficial interest in the named insured; and
(ii) The spouse has a share of the crop.
(2) The provisions in section 2(g)(3) will be applicable if:
(i) Any partner, member, shareholder, etc., of an insured entity
dies, disappears, or is judicially declared incompetent, and such event
automatically dissolves the entity; or
(ii) An individual, whose estate is left to a beneficiary other than
a spouse or left to the spouse and the criteria in section 2(g)(1) are
not met, dies, disappears, or is judicially declared incompetent.
(3) If section 2(g)(2) applies and the death, disappearance, or
judicially declared incompetence occurred:
(i) More than 30 days before the cancellation date, the policy is
automatically canceled as of the cancellation date and a new application
must be submitted; or
(ii) Thirty days or less before the cancellation date, or after the
cancellation date, the policy will continue in effect through the crop
year immediately following the cancellation date and be automatically
canceled as of the cancellation date immediately following the end of
the insurance period for the crop year, unless canceled by the
cancellation date prior to the start of the insurance period:
(A) A new application for insurance must be submitted prior to the
sales closing date for coverage for the subsequent crop year; and
(B) Any indemnity, replant payment or prevented planting payment
will be paid to the person or persons determined to be beneficially
entitled to the payment and such person or persons must comply with all
policy provisions and pay the premium.
(4) If any insured entity is dissolved for reasons other than death,
disappearance, or judicially declared incompetence:
(i) Before the cancellation date, the policy is automatically
canceled as of the cancellation date and a new application must be
submitted; or
(ii) On or after the cancellation date, the policy will continue in
effect through the crop year immediately following the cancellation date
and be automatically canceled as of the cancellation date immediately
following the end of the insurance period for the crop year, unless
canceled by the cancellation date prior to the start of the insurance
period:
(A) A new application for insurance must be submitted prior to the
sales closing date for coverage for the subsequent crop year; and
(B) Any indemnity, replant payment or prevented planting payment
will be paid to the person or persons determined to be beneficially
entitled to the payment and such person or persons must comply with all
policy provisions and pay the premium.
(5) If section 2(g)(2) or (4) applies, a remaining member of the
insured person or the beneficiary is required to report to us the death,
disappearance, judicial incompetence, or other event that causes
dissolution not later than the next cancellation date, except if section
2(g)(3)(ii) applies, notice must be provided by the cancellation date
for the next crop year. If notice is not provided timely, the provisions
of section 2(g)(2) or (4) will apply retroactive to the date such notice
should have been provided and any payments made after the date the
policy should have been canceled must be returned.
(h) We may cancel your policy if no premium is earned for 3
consecutive years.
(i) The cancellation and termination dates are contained in the Crop
Provisions.
(j) When obtaining catastrophic, or additional coverage, you must
provide information regarding crop insurance coverage on any crop
previously obtained at any other local FSA office or from an approved
insurance provider, including the date such insurance was obtained and
the amount of the administrative fee.
(k) Any person may sign any document relative to crop insurance
coverage on behalf of any other person covered by such a policy,
[[Page 134]]
provided that the person has a properly executed power of attorney or
such other legally sufficient document authorizing such person to sign.
You are still responsible for the accuracy of all information provided
on your behalf and may be subject to the consequences in section 6(g),
and any other applicable consequences, if any information has been
misreported.
3. Insurance Guarantees, Coverage Levels, and Prices
(a) Unless adjusted or limited in accordance with your policy, the
production guarantee or amount of insurance, coverage level, and price
at which an indemnity will be determined for each unit will be those
used to calculate your summary of coverage for each crop year.
(b) With respect to the insurance choices:
(1) For all acreage of the insured crop in the county, unless one of
the conditions in section 3(b)(2) exists, you must select the same:
(i) Plan of insurance (e.g., yield protection, revenue protection,
actual production history, amount of insurance, etc.);
(ii) Level of coverage (all catastrophic risk protection or the same
level of additional coverage); and
(iii) Percentage of the available price election, or projected price
for yield protection. For revenue protection, the percentage of price is
specified in section 3(c)(2). If different prices are provided by type
or variety, insurance will be based on the price provided for each type
or variety and the same price percentage will apply to all types or
varieties.
(2) You do not have to select the same plan of insurance, level of
coverage or percentage of available price election or projected price
if:
(i) The applicable Crop Provisions allow you the option to
separately insure individual crop types or varieties. In this case, each
individual type or variety insured by you will be subject to separate
administrative fees. For example, if two grape varieties in California
are insured under the Catastrophic Risk Protection Endorsement and two
varieties are insured under an additional coverage policy, a separate
administrative fee will be charged for each of the four varieties; or
(ii) You have additional coverage for the crop in the county and the
acreage has been designated as ``high-risk'' by FCIC. In such case, you
will be able to exclude coverage for the high-risk land under the
additional coverage policy and insure such acreage under a separate
Catastrophic Risk Protection Endorsement, provided the Catastrophic Risk
Protection Endorsement is obtained from the same insurance provider from
which the additional coverage was obtained. If you have revenue
protection and exclude high-risk land, the catastrophic risk protection
coverage will be yield protection only for the excluded high-risk land.
(c) With respect to revenue protection, if available for the crop:
(1) You may change to another plan of insurance and change your
coverage level or elect the harvest price exclusion by giving written
notice to us not later than the sales closing date for the insured crop;
(2) Your projected price and harvest price will be 100 percent of
the projected price and harvest price issued by FCIC;
(3) If the harvest price exclusion is:
(i) Not elected, your projected price is used to initially determine
the revenue protection guarantee (per acre), and if the harvest price is
greater than the projected price, the revenue protection guarantee (per
acre) will be recomputed using your harvest price; or
(ii) Elected, your projected price is used to compute your revenue
protection guarantee (per acre);
(4) Your projected price is used to calculate your premium, any
replant payment, and any prevented planting payment; and
(5) If the projected price or harvest price cannot be calculated for
the current crop year under the provisions contained in the Commodity
Exchange Price Provisions:
(i) For the projected price:
(A) Revenue protection will not be provided and you will
automatically be covered under the yield protection plan of insurance
for the current crop year unless you cancel your coverage by the
cancellation date or change your plan of insurance by the sales closing
date;
(B) Notice will be provided on RMA's Web site by the date specified
in the applicable projected price definition contained in the Commodity
Exchange Price Provisions;
(C) The projected price will be determined by FCIC and will be
released by the date specified in the applicable projected price
definition contained in the Commodity Exchange Price Provisions; and
(D) Your coverage will automatically revert to revenue protection
for the next crop year that revenue protection is available unless you
cancel your coverage by the cancellation date or change your coverage by
the sales closing date; or
(ii) For the harvest price:
(A) Revenue protection will continue to be available; and
(B) The harvest price will be determined and announced by FCIC.
(d) With respect to yield protection, if available for the crop:
(1) You may change to another plan of insurance and change your
percentage of price and your coverage level by giving written notice to
us not later than the sales closing date for the insured crop;
(2) The percentage of the projected price selected by you multiplied
by the projected
[[Page 135]]
price issued by FCIC is your projected price that is used to compute the
value of your production guarantee (per acre) and the value of the
production to count; and
(3) Since the projected price may change each year, if you do not
select a new percentage of the projected price on or before the sales
closing date, we will assign a percentage which bears the same
relationship to the percentage that was in effect for the preceding year
(e.g., if you selected 100 percent of the projected price for the
previous crop year and you do not select a new percentage for the
current crop year, we will assign 100 percent for the current crop
year).
(e) With respect to all plans of insurance other than revenue
protection and yield protection (e.g., APH, dollar amount plans of
insurance, etc.):
(1) In addition to the price election or amount of insurance
available on the contract change date, we may provide an additional
price election or amount of insurance no later than 15 days prior to the
sales closing date.
(i) You must select the additional price election or amount of
insurance on or before the sales closing date for the insured crop.
(ii) These additional price elections or amounts of insurance will
not be less than those available on the contract change date.
(iii) If you elect the additional price election or amount of
insurance, any claim settlement and amount of premium will be based on
your additional price election or amount of insurance.
(2) You may change to another plan of insurance or change your
coverage level, amount of insurance or percentage of the price election,
as applicable, for the following crop year by giving written notice to
us not later than the sales closing date for the insured crop.
(3) Your amount of insurance will be the amount of insurance issued
by FCIC multiplied by the coverage level percentage you elected. Your
price election will be the price election issued by FCIC multiplied by
the percentage of price you elected.
(4) Since the amount of insurance or price election may change each
year, if you do not select a new amount of insurance or percentage of
the price election on or before the sales closing date, we will assign
an amount of insurance or percentage of the price election which bears
the same relationship to the amount of insurance or percentage of the
price election that was in effect for the preceding year (e.g., if you
selected 100 percent of the price election for the previous crop year
and you do not select a new percentage of the price election for the
current crop year, we will assign 100 percent of the price election for
the current crop year).
(f) You must report all production of the crop (insured and
uninsured) to us for the previous crop year by the earlier of the
acreage reporting date or 45 days after the cancellation date, unless
otherwise stated in the Special Provisions or as specified in section
18:
(1) If you do not provide the required production report, we will
assign a yield for the previous crop year. The yield assigned by us will
not be more than 75 percent of the yield used by us to determine your
coverage for the previous crop year. The production report or assigned
yield will be used to compute your approved yield for the purpose of
determining your coverage for the current crop year.
(2) If you have filed a claim for any crop year, the documents
signed by you which state the amount of production used to complete the
claim for indemnity will be the production report for that year unless
otherwise specified by FCIC.
(3) Production and acreage for the prior crop year must be reported
for each proposed optional unit by the production reporting date. If you
do not provide the information stated above, the optional units will be
combined into the basic unit.
(4) Appraisals obtained from only a portion of the acreage in a
field that remains unharvested after the remainder of the crop within
the field has been destroyed or put to another use will not be used to
establish your actual yield unless representative samples are required
to be left by you in accordance with the Crop Provisions.
(g) It is your responsibility to accurately report all information
that is used to determine your approved yield.
(1) You must certify to the accuracy of this information on your
production report.
(2) If you fail to accurately report any information or if you do
not provide any required records, you will be subject to the provisions
regarding misreporting contained in section 6(g), unless the information
is corrected:
(i) On or before the production reporting date; or
(ii) Because the incorrect information was the result of our error
or the error of someone from USDA.
(3) If you do not have written verifiable records to support the
information on your production report, you will receive an assigned
yield in accordance with section 3(f)(1) and 7 CFR part 400, subpart G
for those crop years for which you do not have such records.
(4) At any time we discover you have misreported any material
information used to determine your approved yield or your approved yield
is not correct, the following actions will be taken, as applicable:
(i) We will correct your approved yield for the crop year such
information is not correct, and all subsequent crop years;
(ii) We will correct the unit structure, if necessary;
[[Page 136]]
(iii) Any overpaid or underpaid indemnity or premium must be repaid;
and
(iv) You will be subject to the provisions regarding misreporting
contained in section 6(g)(1), unless the incorrect information was the
result of our error or the error of someone from USDA.
(h) In addition to any consequences in section 3(g), at any time the
circumstances described below are discovered, your approved yield will
be adjusted:
(1) By including an assigned yield determined in accordance with
section 3(f)(1) and 7 CFR part 400, subpart G, if the actual yield
reported in the database is excessive for any crop year, as determined
by FCIC under its procedures, and you do not provide verifiable records
to support the yield in the database (If there are verifiable records
for the yield in your database, the yield is significantly different
from the other yields in the county or your other yields for the crop
and you cannot prove there is a valid basis to support the differences
in the yields, the yield will be the average of the yields for the crop
or the applicable county transitional yield if you have no other yields
for the crop);
(2) By reducing it to an amount consistent with the average of the
approved yields for other databases for your farming operation with the
same crop, type, and practice or the county transitional yield, as
applicable, if:
(i) The approved APH yield is greater than 115 percent of the
average of the approved yields of all applicable databases for your
farming operation that have actual yields in them or it is greater than
115 percent of the county transitional yield if no applicable databases
exist for comparison;
(ii) The current year's insurable acreage (including applicable
prevented planting acreage) is greater than 400 percent of the average
number of acres in the database or the acres contained in two or more
individual years in the database are each less than 10 percent of the
current year's insurable acreage in the unit (including applicable
prevented planting acreage); and
(iii) We determine there is no valid agronomic basis to support the
approved yield; or
(3) To an amount consistent with the production methods actually
carried out for the crop year if you use a different production method
than was previously used and the production method actually carried out
is likely to result in a yield lower than the average of your previous
actual yields. The yield will be adjusted based on your other units
where such production methods were carried out or to the applicable
county transitional yield for the production methods if other such units
do not exist. You must notify us of changes in your production methods
by the acreage reporting date. If you fail to notify us, in addition to
the reduction of your approved yield described herein, you will be
considered to have misreported information and you will be subject to
the consequences in section 6(g). For example, for a non-irrigated unit,
your yield is based upon acreage of the crop that is watered once prior
to planting, and the crop is not watered prior to planting for the
current crop year. Your approved APH yield will be reduced to an amount
consistent with the actual production history of your other non-
irrigated units where the crop has not been watered prior to planting or
limited to the non-irrigated transitional yield for the unit if other
such units do not exist.
(i) Unless you meet the double cropping requirements contained in
section 17(f)(4), if you elect to plant a second crop on acreage where
the first insured crop was prevented from being planted, you will
receive a yield equal to 60 percent of the approved yield for the first
insured crop to calculate your average yield for subsequent crop years
(Not applicable to crops if the APH is not the basis for the insurance
guarantee). If the unit contains both prevented planting and planted
acreage of the same crop, the yield for such acreage will be determined
by:
(1) Multiplying the number of insured prevented planting acres by 60
percent of the approved yield for the first insured crop;
(2) Adding the totals from section 3(i)(1) to the amount of
appraised or harvested production for all of the insured planted
acreage; and
(3) Dividing the total in section 3(i)(2) by the total number of
acres in the unit.
(j) Hail and fire coverage may be excluded from the covered causes
of loss for an insured crop only if you select additional coverage of
not less than 65 percent of the approved yield indemnified at the 100
percent price election, or an equivalent coverage as established by
FCIC, and you have purchased the same or a higher dollar amount of
coverage for hail and fire from us or any other source. If you elected a
whole-farm unit, you may exclude hail and fire coverage only if allowed
by the Special Provisions.
(k) The applicable premium rate, or formula to calculate the premium
rate, and transitional yield will be those contained in the actuarial
documents except, in the case of high-risk land, a written agreement may
be requested to change such transitional yield or premium rate.
4. Contract Changes
(a) We may change the terms of your coverage under this policy from
year to year.
(b) Any changes in policy provisions, amounts of insurance, premium
rates, program dates, price elections or the Commodity Exchange Price
Provisions, if applicable, can be viewed on RMA's Web site not later
than the contract change date contained in the Crop Provisions (except
as allowed herein or as specified in section 3). We may only revise this
information after the
[[Page 137]]
contract change date to correct clear errors (e.g., the price for oats
was announced at $25.00 per bushel instead of $2.50 per bushel or the
final planting date should be May 10 but the final planting date in the
Special Provisions states August 10).
(c) After the contract change date, all changes specified in section
4(b) will also be available upon request from your crop insurance agent.
You will be provided, in writing, a copy of the changes to the Basic
Provisions, Crop Provisions, Commodity Exchange Price Provisions, if
applicable, and Special Provisions not later than 30 days prior to the
cancellation date for the insured crop. If available from us, you may
elect to receive these documents and changes electronically. Acceptance
of the changes will be conclusively presumed in the absence of notice
from you to change or cancel your insurance coverage.
5. [Reserved]
6. Report of Acreage
(a) An annual acreage report must be submitted to us on our form for
each insured crop in the county on or before the acreage reporting date
contained in the Special Provisions, except as follows:
(1) If you insure multiple crops with us that have final planting
dates on or after August 15 but before December 31, you must submit an
acreage report for all such crops on or before the latest applicable
acreage reporting date for such crops; and
(2) If you insure multiple crops with us that have final planting
dates on or after December 31 but before August 15, you must submit an
acreage report for all such crops on or before the latest applicable
acreage reporting date for such crops.
(3) Notwithstanding the provisions in sections 6(a) (1) and (2):
(i) If the Special Provisions designate separate planting periods
for a crop, you must submit an acreage report for each planting period
on or before the acreage reporting date contained in the Special
Provisions for the planting period; and
(ii) If planting of the insured crop continues after the final
planting date or you are prevented from planting during the late
planting period, the acreage reporting date will be the later of:
(A) The acreage reporting date contained in the Special Provisions;
(B) The date determined in accordance with sections (a)(1) or (2);
or
(C) Five (5) days after the end of the late planting period for the
insured crop, if applicable.
(b) If you do not have a share in an insured crop in the county for
the crop year, you must submit an acreage report, on or before the
acreage reporting date, so indicating.
(c) Your acreage report must include the following information, if
applicable:
(1) The amount of acreage of the crop in the county (insurable and
not insurable) in which you have a share and the date the insured crop
was planted on the unit as follows:
(i) The last date any timely planted acreage was planted and the
number of acres planted by such date; and
(ii) The date of planting and the number of acres planted per day
for acreage planted during the late planting period (If you fail to
report the number of acres planted on a daily basis, all acreage planted
in the late planting period will be presumed to have been planted on the
last day planting took place in the late planting period for the
purposes of section 16);
(2) Your share at the time coverage begins;
(3) The practice;
(4) The type; and
(5) The land identifier for the crop acreage (e.g., legal
description, FSA farm serial number or common land unit number if
provided to you by FSA, etc.) as required on our form.
(d) Regarding the ability to revise an acreage report you have
submitted to us:
(1) For planted acreage, you cannot revise any information
pertaining to the planted acreage after the acreage reporting date
without our consent (Consent may only be provided when no cause of loss
has occurred; our appraisal has determined that the insured crop will
produce at least 90 percent of the yield used to determine your
guarantee or the amount of insurance for the unit (including reported
and unreported acreage), except when there are unreported units (see
section 6(f)); the information on the acreage report is clearly
transposed; you provide adequate evidence that we or someone from USDA
have committed an error regarding the information on your acreage
report; or if expressly permitted by the policy);
(2) For prevented planting acreage:
(i) On or before the acreage reporting date, you can change any
information on any initially submitted acreage report, except as
provided in section 6(d)(2)(iii) (e.g., you can correct the reported
share, add acreage of the insured crop that was prevented from being
planted, etc.);
(ii) After the acreage reporting date, you cannot revise any
information on the acreage report (e.g., if you have failed to report
prevented planting acreage on or before the acreage reporting date, you
cannot revise it after the acreage reporting date to include prevented
planting acreage) but we will revise information that is clearly
transposed or if you provide adequate evidence that we or someone from
USDA have committed an error regarding the information on your acreage
report; and
(iii) You cannot revise your initially submitted acreage report at
any time to change
[[Page 138]]
the insured crop, or type, that was reported as prevented from being
planted;
(3) You may request an acreage measurement from FSA or a business
that provides such measurement service prior to the acreage reporting
date, submit documentation of such request and an acreage report with
estimated acreage by the acreage reporting date, and if the acreage
measurement shows the estimated acreage was incorrect, we will revise
your acreage report to reflect the correct acreage:
(i) If an acreage measurement is only requested for a portion of the
acreage within a unit, you must separately designate the acreage for
which an acreage measurement has been requested;
(ii) If an acreage measurement is not provided to us by the time we
receive a notice of loss, we may:
(A) Defer finalization of the claim until the measurement is
completed, and:
(1) Make all necessary loss determinations, except the acreage
measurement; and
(2) Finalize the claim in accordance with applicable policy
provisions after you provide the acreage measurement to us (If you fail
to provide the measurement, your claim will not be paid); or
(B) Elect to measure the acreage, and:
(1) Finalize your claim in accordance with applicable policy
provisions; and
(2) Estimated acreage under this section will not be accepted from
you for any subsequent acreage report; and
(iii) Premium will still be due in accordance with sections 2(e) and
7. If the acreage is not measured as specified in section 6(d)(3)(ii)
and the acreage measurement is not provided to us at least 15 days prior
to the premium billing date, your premium will be based on the estimated
acreage and will be revised, if necessary, when the acreage measurement
is provided. If the acreage measurement is not provided by the
termination date, you will be precluded from providing any estimated
acreage for all subsequent crop years.
(4) If there is an irreconcilable difference between:
(i) The acreage measured by FSA or a measuring service and our on-
farm measurement, our on-farm measurement will be used; or
(ii) The acreage measured by a measuring service, other than our on-
farm measurement, and FSA, the FSA measurement will be used; and
(5) If the acreage report has been revised in accordance with
section 6(d)(1), (2), or (3), the information on the initial acreage
report will not be considered misreported for the purposes of section
6(g).
(e) We may elect to determine all premiums and indemnities based on
the information you submit on the acreage report or upon the factual
circumstances we determine to have existed, subject to the provisions
contained in section 6(g).
(f) If you do not submit an acreage report by the acreage reporting
date, or if you fail to report all units, we may elect to determine by
unit the insurable crop acreage, share, type and practice, or to deny
liability on such units. If we deny liability for the unreported units,
your share of any production from the unreported units will be
allocated, for loss purposes only, as production to count to the
reported units in proportion to the liability on each reported unit.
However, such production will not be allocated to prevented planting
acreage or otherwise affect any prevented planting payment.
(g) You must provide all required reports and you are responsible
for the accuracy of all information contained in those reports. You
should verify the information on all such reports prior to submitting
them to us.
(1) Except as provided in section 6(g)(2), if you submit information
on any report that is different than what is determined to be correct
and such information results in:
(i) A lower liability than the actual liability determined, the
production guarantee or amount of insurance on the unit will be reduced
to an amount consistent with the reported information (In the event the
insurable acreage is under-reported for any unit, all production or
value from insurable acreage in that unit will be considered production
or value to count in determining the indemnity); or
(ii) A higher liability than the actual liability determined, the
information contained in the acreage report will be revised to be
consistent with the correct information.
(2) If your share is misreported and the share is:
(i) Under-reported, any claim will be determined using the share you
reported; or
(ii) Over-reported, any claim will be determined using the share we
determine to be correct.
(h) If we discover you have incorrectly reported any information on
the acreage report for any crop year, you may be required to provide
documentation in subsequent crop years substantiating your report of
acreage for those crop years, including, but not limited to, an acreage
measurement service at your own expense. If the correction of any
misreported information would affect an indemnity, prevented planting
payment or replant payment that was paid in a prior crop year, such
claim will be adjusted and you will be required to repay any overpaid
amounts.
(i) Errors in reporting units may be corrected by us at the time of
adjusting a loss to reduce our liability and to conform to applicable
unit division guidelines.
[[Page 139]]
7. Annual Premium and Administrative Fees
(a) The annual premium is earned and payable at the time coverage
begins. You will be billed for the premium and administrative fee not
earlier than the premium billing date specified in the Special
Provisions.
(b) Premium or administrative fees owed by you will be offset from
an indemnity or prevented planting payment due you in accordance with
section 2(e).
(c) The annual premium amount is determined, as applicable, by
either:
(1) Multiplying the production guarantee per acre times your price
election or your projected price, as applicable, times the premium rate,
times the insured acreage, times your share at the time coverage begins,
and times any premium adjustment percentages that may apply; or
(2) Multiplying your amount of insurance per acre times the premium
rate, times the insured acreage, times your share at the time coverage
begins, and times any premium adjustment percentages that may apply.
(d) The information needed to determine the premium rate and any
premium adjustment percentages that may apply are contained in the
actuarial documents or an approved written agreement.
(e) In addition to the premium charged:
(1) You, unless otherwise authorized in 7 CFR part 400, must pay an
administrative fee each crop year of $30 per crop per county for all
levels of coverage in excess of catastrophic risk protection.
(2) The administrative fee must be paid no later than the time that
premium is due.
(3) Payment of an administrative fee will not be required if you
file a bona fide zero acreage report on or before the acreage reporting
date for the crop. If you falsely file a zero acreage report you may be
subject to criminal and administrative sanctions.
(4) The administrative fee will be waived if you request it and:
(i) You qualify as a limited resource farmer; or
(ii) You were insured prior to the 2005 crop year or for the 2005
crop year and your administrative fee was waived for one or more of
those crop years because you qualified as a limited resource farmer
under a policy definition previously in effect, and you remain qualified
as a limited resource farmer under the definition that was in effect at
the time the administrative fee was waived.
(5) Failure to pay the administrative fees when due may make you
ineligible for certain other USDA benefits.
(f) If the amount of premium (gross premium less premium subsidy
paid on your behalf by FCIC) and administrative fee you are required to
pay for any acreage exceeds the liability for the acreage, coverage for
those acres will not be provided (no premium or administrative fee will
be due and no indemnity will be paid for such acreage).
8. Insured Crop
(a) The insured crop will be that shown on your accepted application
and as specified in the Crop Provisions or Special Provisions and must
be grown on insurable acreage.
(b) A crop which will NOT be insured will include, but will not be
limited to, any crop:
(1) That is not grown on planted acreage (except for the purposes of
prevented planting coverage), or that is a type, class or variety or
where the conditions under which the crop is planted are not generally
recognized for the area (For example, where agricultural experts
determine that planting a non-irrigated corn crop after a failed small
grain crop on the same acreage in the same crop year is not appropriate
for the area);
(2) For which the information necessary for insurance (price
election, amount of insurance, projected price and harvest price, as
applicable, premium rate, etc.) is not included in the actuarial
documents, unless such information is provided by a written agreement in
accordance with section 18;
(3) That is a volunteer crop;
(4) Planted following the same crop on the same acreage and the
first planting of the crop has been harvested in the same crop year
unless specifically permitted by the Crop Provisions or the Special
Provisions (For example, the second planting of grain sorghum would not
be insurable if grain sorghum had already been planted and harvested on
the same acreage during the crop year);
(5) That is planted for the development or production of hybrid seed
or for experimental purposes, unless permitted by the Crop Provisions or
by written agreement to insure such crop; or
(6) That is used solely for wildlife protection or management. If
the lease states that specific acreage must remain unharvested, only
that acreage is uninsurable. If the lease specifies that a percentage of
the crop must be left unharvested, your share will be reduced by such
percentage.
(c) Although certain policy documents may state that a crop type,
class, variety or practice is not insurable, it does not mean all other
crop types, classes, varieties or practices are insurable. To be
insurable the crop type, class, variety or practice must meet all the
conditions in this section.
9. Insurable Acreage
(a) All acreage planted to the insured crop in the county in which
you have a share:
(1) Except as provided in section 9(a)(2), is insurable if the
acreage has been planted and harvested or insured (including insured
acreage that was prevented from being planted) in any one of the three
previous crop years.
[[Page 140]]
Acreage that has not been planted and harvested (grazing is not
considered harvested for the purposes of section 9(a)(1)) or insured in
at least one of the three previous crop years may still be insurable if:
(i) Such acreage was not planted:
(A) In at least two of the three previous crop years to comply with
any other USDA program;
(B) Due to the crop rotation, the acreage would not have been
planted in the previous three years (e.g., a crop rotation of corn,
soybeans, and alfalfa; and the alfalfa remained for four years before
the acreage was planted to corn again); or
(C) Because a perennial tree, vine, or bush crop was on the acreage
in at least two of the previous three crop years;
(ii) Such acreage constitutes five percent or less of the insured
planted acreage in the unit;
(iii) Such acreage was not planted or harvested because it was
pasture or rangeland, the crop to be insured is also pasture or
rangeland, and the Crop Provisions, Special Provisions, or a written
agreement specifically allow insurance for such acreage; or
(iv) The Crop Provisions, Special Provisions, or a written agreement
specifically allow insurance for such acreage; or
(2) Is not insurable if:
(i) The only crop that has been planted and harvested on the acreage
in the three previous crop years is a cover, hay (except wheat harvested
for hay) or forage crop (except insurable silage). However, such acreage
may be insurable only if:
(A) The crop to be insured is a hay or forage crop and the Crop
Provisions, Special Provisions, or a written agreement specifically
allow insurance for such acreage; or
(B) The hay or forage crop was part of a crop rotation;
(ii) The acreage has been strip-mined. However, such acreage may be
insurable only if:
(A) An agricultural commodity, other than a cover, hay (except wheat
harvested for hay), or forage crop (except insurable silage) has been
harvested from the acreage for at least five crop years after the strip-
mined land was reclaimed; or
(B) A written agreement specifically allows insurance for such
acreage;
(iii) The actuarial documents do not provide the information
necessary to determine the premium rate, unless insurance is allowed by
a written agreement;
(iv) The insured crop is damaged and it is practical to replant the
insured crop, but the insured crop is not replanted;
(v) The acreage is interplanted, unless insurance is allowed by the
Crop Provisions;
(vi) The acreage is otherwise restricted by the Crop Provisions or
Special Provisions;
(vii) The acreage is planted in any manner other than as specified
in the policy provisions for the crop unless a written agreement
specifically allows insurance for such planting;
(viii) The acreage is of a second crop, if you elect not to insure
such acreage when an indemnity for a first insured crop may be subject
to reduction in accordance with the provisions of section 15 and you
intend to collect an indemnity payment that is equal to 100 percent of
the insurable loss for the first insured crop acreage. This election
must be made on a first insured crop unit basis (e.g., if the first
insured crop unit contains 40 planted acres that may be subject to an
indemnity reduction, then no second crop can be insured on any of the 40
acres). In this case:
(A) If the first insured crop is insured under this policy, you must
provide written notice to us of your election not to insure acreage of a
second crop at the time the first insured crop acreage is released by us
(if no acreage in the first insured crop unit is released, this election
must be made by the earlier of the acreage reporting date for the second
crop or when you sign the claim for indemnity for the first insured
crop) or, if the first insured crop is insured under the Group Risk
Protection Plan of Insurance or successor provisions (7 CFR part 407),
this election must be made before the second crop insured under this
policy is planted, and if you fail to provide such notice, the second
crop acreage will be insured in accordance with the applicable policy
provisions and you must repay any overpaid indemnity for the first
insured crop;
(B) In the event a second crop is planted and insured with a
different insurance provider, or planted and insured by a different
person, you must provide written notice to each insurance provider that
a second crop was planted on acreage on which you had a first insured
crop; and
(C) You must report the crop acreage that will not be insured on the
applicable acreage report; or
(ix) The acreage is of a crop planted following a second crop or
following an insured crop that is prevented from being planted after a
first insured crop, unless it is a practice that is generally recognized
by agricultural experts or organic agricultural experts for the area to
plant three or more crops for harvest on the same acreage in the same
crop year, and additional coverage insurance provided under the
authority of the Act is offered for the third or subsequent crop in the
same crop year. Insurance will only be provided for a third or
subsequent crop as follows:
(A) You must provide records acceptable to us that show:
(1) You have produced and harvested the insured crop following two
other crops harvested on the same acreage in the same crop year in at
least two of the last four years in which you produced the insured crop;
or
[[Page 141]]
(2) The applicable acreage has had three or more crops produced and
harvested on it in the same crop year in at least two of the last four
years in which the insured crop was grown on the acreage; and
(B) The amount of insurable acreage will not exceed 100 percent of
the greatest number of acres for which you provide the records required
in section 9(a)(2)(ix)(A).
(b) If insurance is provided for an irrigated practice, you must
report as irrigated only that acreage for which you have adequate
facilities and adequate water, or the reasonable expectation of
receiving adequate water at the time coverage begins, to carry out a
good irrigation practice. If you knew or had reason to know that your
water may be reduced before coverage begins, no reasonable expectation
exists.
(c) Notwithstanding the provisions in section 8(b)(2), if acreage is
irrigated and a premium rate is not provided for an irrigated practice,
you may either report and insure the irrigated acreage as ``non-
irrigated,'' or report the irrigated acreage as not insured (If you
elect to insure such acreage under a non-irrigated practice, your
irrigated yield will only be used to determine your approved yield if
you continue to use a good irrigation practice. If you do not use a good
irrigation practice, you will receive a yield determined in accordance
with section 3(h)(3)).
(d) We may restrict the amount of acreage that we will insure to the
amount allowed under any acreage limitation program established by the
United States Department of Agriculture if we notify you of that
restriction prior to the sales closing date.
(e) Notwithstanding the provisions in section 9(a)(1), if the
Governor of a State designated within the Prairie Pothole National
Priority Area elects to make section 508(o) of the Act effective for the
State, any native sod acreage greater than five acres located in a
county contained within the Prairie Pothole National Priority Area that
has been tilled after May 22, 2008, is not insurable for the first five
crop years of planting following the date the native sod acreage is
tilled.
(1) If the Governor makes this election after you have received an
indemnity or other payment for native sod acreage, you will be required
to repay the amount received and any premium for such acreage will be
refunded to you.
(2) If we determine you have tilled less than five acres of native
sod a year for more than one crop year, we will add all the native sod
acreage tilled after May 22, 2008, and all such acreage will be
ineligible for insurance for the first five crop years of planting
following the date the cumulative native sod acreage tilled exceeds five
acres.
10. Share Insured
(a) Insurance will attach:
(1) Only if the person completing the application has a share in the
insured crop; and
(2) Only to that person's share, except that insurance may attach to
another person's share of the insured crop if the other person has a
share of the crop and:
(i) The application clearly states the insurance is requested for a
person other than an individual (e.g., a partnership or a joint
venture); or
(ii) The application clearly states you as a landlord will insure
your tenant's share, or you as a tenant will insure your landlord's
share. If you as a landlord will insure your tenant's share, or you as a
tenant will insure your landlord's share, you must provide evidence of
the other party's approval (lease, power of attorney, etc.) and such
evidence will be retained by us:
(A) You also must clearly set forth the percentage shares of each
person on the acreage report; and
(B) For each landlord or tenant, you must report the landlord's or
tenant's social security number, employer identification number, or
other identification number we assigned for the purposes of this policy,
as applicable.
(b) With respect to your share:
(1) We will consider to be included in your share under your policy,
any acreage or interest reported by or for:
(i) Your spouse, unless such spouse can prove he/she has a separate
farming operation, which includes, but is not limited to, separate land
(transfers of acreage from one spouse to another is not considered
separate land), separate capital, separate inputs, separate accounting,
and separate maintenance of proceeds; or
(ii) Your child who resides in your household or any other member of
your household, unless such child or other member of the household can
demonstrate such person has a separate share in the crop (Children who
do not reside in your household are not included in your share); and
(2) If it is determined that the spouse, child or other member of
the household has a separate policy but does not have a separate farming
operation or share of the crop, as applicable:
(i) The policy for one spouse or child or other member of the
household will be void and the policy remaining in effect will be
determined in accordance with section 22(a)(1) and (2);
(ii) The acreage or share reported under the policy that is voided
will be included under the remaining policy; and
(iii) No premium will be due and no indemnity will be paid for the
voided policy.
(c) Acreage rented for a percentage of the crop, or a lease
containing provisions for both a minimum payment (such as a specified
amount of cash, bushels, pounds, etc.,)
[[Page 142]]
and a crop share will be considered a crop share lease.
(d) Acreage rented for cash, or a lease containing provisions for
either a minimum payment or a crop share (such as a 50/50 share or
$100.00 per acre, whichever is greater) will be considered a cash lease.
11. Insurance Period
(a) Except for prevented planting coverage (see section 17),
coverage begins on each unit or part of a unit at the later of:
(1) The date we accept your application (For the purposes of this
paragraph, the date of acceptance is the date that you submit a properly
executed application in accordance with section 2);
(2) The date the insured crop is planted; or
(3) The calendar date contained in the Crop Provisions for the
beginning of the insurance period.
(b) Coverage ends on each unit or part of a unit at the earliest of:
(1) Total destruction of the insured crop;
(2) Harvest of the insured crop;
(3) Final adjustment of a loss on a unit;
(4) The calendar date contained in the Crop Provisions or Special
Provisions for the end of the insurance period;
(5) Abandonment of the insured crop; or
(6) As otherwise specified in the Crop Provisions.
(c) Except as provided in the Crop Provisions or applicable
endorsement, in addition to the requirements of section 11(b), coverage
ends on any acreage within a unit once any event specified in section
11(b) occurs on that acreage. Coverage only remains in effect on acreage
that has not been affected by an event specified in section 11(b).
12. Causes of Loss
Insurance is provided only to protect against unavoidable, naturally
occurring events. A list of the covered naturally occurring events is
contained in the applicable Crop Provisions. All other causes of loss,
including but not limited to the following, are not covered:
(a) Any act by any person that affects the yield, quality or price
of the insured crop (e.g., chemical drift, fire, terrorism, etc.);
(b) Failure to follow recognized good farming practices for the
insured crop;
(c) Water that is contained by or within structures that are
designed to contain a specific amount of water, such as dams, locks or
reservoir projects, etc., on any acreage when such water stays within
the designed limits (For example, a dam is designed to contain water to
an elevation of 1,200 feet but you plant a crop on acreage at an
elevation of 1,100 feet. A storm causes the water behind the dam to rise
to an elevation of 1,200 feet. Under such circumstances, the resulting
damage would not be caused by an insurable cause of loss. However, if
you planted on acreage that was above 1,200 feet elevation, any damage
caused by water that exceeded that elevation would be caused by an
insurable cause of loss);
(d) Failure or breakdown of the irrigation equipment or facilities,
or the inability to prepare the land for irrigation using your
established irrigation method (e.g., furrow irrigation), unless the
failure, breakdown or inability is due to a cause of loss specified in
the Crop Provisions.
(1) You must make all reasonable efforts to restore the equipment or
facilities to proper working order within a reasonable amount of time
unless we determine it is not practical to do so.
(2) Cost will not be considered when determining whether it is
practical to restore the equipment or facilities;
(e) Failure to carry out a good irrigation practice for the insured
crop, if applicable; or
(f) Any cause of loss that results in damage that is not evident or
would not have been evident during the insurance period, including, but
not limited to, damage that only becomes evident after the end of the
insurance period unless expressly authorized in the Crop Provisions.
Even though we may not inspect the damaged crop until after the end of
the insurance period, damage due to insured causes that would have been
evident during the insurance period will be covered.
13. Replanting Payment
(a) If allowed by the Crop Provisions, a replanting payment may be
made on an insured crop replanted after we have given consent and the
acreage replanted is at least the lesser of 20 acres or 20 percent of
the insured planted acreage for the unit (as determined on the final
planting date or within the late planting period if a late planting
period is applicable). If the crops to be replanted are in a whole-farm
unit, the 20 acres or 20 percent requirement is to be applied separately
to each crop to be replanted in the whole-farm unit.
(b) No replanting payment will be made on acreage:
(1) On which our appraisal establishes that production will exceed
the level set by the Crop Provisions;
(2) Initially planted prior to the earliest planting date
established by the Special Provisions; or
(3) On which one replanting payment has already been allowed for the
crop year.
(c) The replanting payment per acre will be:
(1) The lesser of your actual cost for replanting or the amount
specified in the Crop Provisions or Special Provisions; or
(2) If the Crop Provisions or Special Provisions specify that your
actual cost will not be used to determine your replant payment,
[[Page 143]]
the amount determined in accordance with the Crop Provisions or Special
Provisions.
(d) No replanting payment will be paid if we determine it is not
practical to replant.
14. Duties in the Event of Damage, Loss, Abandonment, Destruction, or
Alternative Use of Crop or Acreage
Your Duties--
(a) In the case of damage or loss of production or revenue to any
insured crop, you must protect the crop from further damage by providing
sufficient care.
(b) Notice provisions:
(1) For a planted crop, when there is damage or loss of production,
you must give us notice, by unit, within 72 hours of your initial
discovery of damage or loss of production (but not later than 15 days
after the end of the insurance period, even if you have not harvested
the crop).
(2) For crops for which revenue protection is elected, if there is
no damage or loss of production, you must give us notice not later than
45 days after the latest date the harvest price is released for any crop
in the unit where there is a revenue loss.
(3) In the event you are prevented from planting an insured crop
that has prevented planting coverage, you must notify us within 72 hours
after:
(i) The final planting date, if you do not intend to plant the
insured crop during the late planting period or if a late planting
period is not applicable; or
(ii) You determine you will not be able to plant the insured crop
within any applicable late planting period.
(4) All notices required in this section that must be received by us
within 72 hours may be made by telephone or in person to your crop
insurance agent but must be confirmed in writing within 15 days.
(5) If you fail to comply with these notice requirements, any loss
or prevented planting claim will be considered solely due to an
uninsured cause of loss for the acreage for which such failure occurred,
unless we determine that we have the ability to accurately adjust the
loss. If we determine that we do not have the ability to accurately
adjust the loss:
(i) For any prevented planting claim, no prevented planting coverage
will be provided and no premium will be owed or prevented planting
payment will be paid; or
(ii) For any claim for indemnity, no indemnity will be paid but you
will still be required to pay all premiums owed.
(c) Representative samples:
(1) If representative samples are required by the Crop Provisions,
you must leave representative samples of the unharvested crop intact:
(i) If you report damage less than 15 days before the time you will
begin harvest or during harvest of the damaged unit; or
(ii) At any time when required by us.
(2) The samples must be left intact until we inspect them or until
15 days after completion of harvest on the remainder of the unit,
whichever is earlier.
(3) Unless otherwise specified in the Crop Provisions or Special
Provisions, the samples of the crop in each field in the unit must be 10
feet wide and extend the entire length of the rows, if the crop is
planted in rows, or if the crop is not planted in rows, the longest
dimension of the field.
(4) The period to retain representative samples may be extended if
it is necessary to accurately determine the loss. You will be notified
in writing of any such extension.
(d) Consent:
(1) You must obtain consent from us before, and notify us after you:
(i) Destroy any of the insured crop that is not harvested;
(ii) Put the insured crop to an alternative use;
(iii) Put the acreage to another use; or
(iv) Abandon any portion of the insured crop.
(2) We will not give consent for any of the actions in section
14(d)(1)(i) through (iv) if it is practical to replant the crop or until
we have made an appraisal of the potential production of the crop.
(3) Failure to obtain our consent will result in the assignment of
an amount of production or value to count in accordance with the
Settlement of Claim provisions of the applicable Crop Provisions.
(e) Claims:
(1) Except as otherwise provided in your policy, you must submit a
claim declaring the amount of your loss by the dates shown in section
14(e)(3), unless you:
(i) Request an extension in writing by such date and we agree to
such request (Extensions will only be granted if the amount of the loss
can not be determined within such time period because the information
needed to determine the amount of the loss is not available); or
(ii) Have harvested farm-stored grain production and elect, in
writing, to delay measurement of your farm-stored production and
settlement of any potential associated claim for indemnity (Extensions
will be granted for this purpose up to 180 days after the end of the
insurance period).
(A) For policies that require APH, if such extension continues
beyond the date you are required to submit your production report, you
will be assigned the previous year's approved yield as a temporary yield
in accordance with applicable procedures.
(B) Any extension does not extend any date specified in the policy
by which premiums, administrative fees, or other debts owed must be
paid.
[[Page 144]]
(C) Damage that occurs after the end of the insurance period (for
example, while the harvested crop production is in storage) is not
covered; and
(2) Failure to timely submit a claim or provide the required
information necessary to determine the amount of the claim will result
in no indemnity, prevented planting payment or replant payment:
(i) Even though no indemnity or replant payment is due, you will
still be required to pay the premium due under the policy for the unit;
or
(ii) Failure to timely submit a prevented planting claim will result
in no prevented planting coverage and no premium will be due.
(3) You must submit a claim not later than:
(i) For policies other than revenue protection, 60 days after the
date the insurance period ends for all acreage in the unit (When there
is acreage in the unit where the insurance period ended on different
dates, it is the last date the insurance period ends on the unit. For
example, if a unit has corn acreage that was put to another use on July
15 and corn acreage where harvest was completed on September 30, the
claim must be submitted not later than 60 days after September 30); or
(ii) For revenue protection, the later of:
(A) 60 days after the last date the harvest price is released for
any crop in the unit; or
(B) The date determined in accordance with section 14(e)(3)(i).
(4) To receive any indemnity (or receive the rest of an indemnity in
the case of acreage that is planted to a second crop), prevented
planting payment or replant payment, you must, if applicable:
(i) Provide:
(A) A complete harvesting, production, and marketing record of each
insured crop by unit including separate records showing the same
information for production from any acreage not insured.
(B) Records as indicated below if you insure any acreage that may be
subject to an indemnity reduction as specified in section 15(e)(2):
(1) Separate records of production from such acreage for all insured
crops planted on the acreage (e.g., if you have an insurable loss on 10
acres of wheat and subsequently plant cotton on the same 10 acres, you
must provide records of the wheat and cotton production on the 10 acres
separate from any other wheat and cotton production that may be planted
in the same unit). If you fail to provide separate records for such
acreage, we will allocate the production of each crop to the acreage in
proportion to our liability for the acreage; or
(2) If there is no loss on the unit that includes acreage of the
second crop, no separate records need to be submitted for the second
crop and you can receive the rest of the indemnity for the first insured
crop.
(C) Any other information we may require to settle the claim.
(ii) Cooperate with us in the investigation or settlement of the
claim, and, as often as we reasonably require:
(A) Show us the damaged crop;
(B) Allow us to remove samples of the insured crop; and
(C) Provide us with records and documents we request and permit us
to make copies.
(iii) Establish:
(A) The total production or value received for the insured crop on
the unit;
(B) That any loss occurred during the insurance period;
(C) That the loss was caused by one or more of the insured causes
specified in the Crop Provisions; and
(D) That you have complied with all provisions of this policy.
(iv) Upon our request, or that of any USDA employee authorized to
conduct investigations of the crop insurance program, submit to an
examination under oath.
(5) Failure to comply with any requirement contained in section
14(e)(4) will result in denial of the claim and any premium will still
be owed, unless the claim denied is for prevented planting.
Our Duties--
(f) If you have complied with all the policy provisions, we will pay
your loss within 30 days after the later of:
(1) We reach agreement with you;
(2) Completion of arbitration, reconsideration of determinations
regarding good farming practices or any other appeal that results in an
award in your favor, unless we exercise our right to appeal such
decision;
(3) Completion of any investigation by USDA, if applicable, of your
current or any past claim for indemnity if no evidence of wrongdoing has
been found (If any evidence of wrongdoing has been discovered, the
amount of any indemnity, prevented planting or replant overpayment as a
result of such wrongdoing may be offset from any indemnity or prevented
planting payment owed to you); or
(4) The entry of a final judgment by a court of competent
jurisdiction.
(g) In the event we are unable to pay your loss within 30 days, we
will give you notice of our intentions within the 30-day period.
(h) We may defer the adjustment of a loss until the amount of loss
can be accurately determined. We will not pay for additional damage
resulting from your failure to provide sufficient care for the crop
during the deferral period.
(i) We recognize and apply the loss adjustment procedures
established or approved by the Federal Crop Insurance Corporation.
(j) For revenue protection, we may make preliminary indemnity
payments for crop
[[Page 145]]
production losses prior to the release of the harvest price if you have
not elected the harvest price exclusion.
(1) First, we may pay an initial indemnity based upon your projected
price, in accordance with the applicable Crop Provisions provided that
your production to count and share have been established; and
(2) Second, after the harvest price is released, and if it is not
equal to the projected price, we will recalculate the indemnity payment
and pay any additional indemnity that may be due.
15. Production Included in Determining an Indemnity and Payment
Reductions.
(a) The total production to be counted for a unit will include all
production determined in accordance with the policy.
(b) Appraised production will be used to calculate your claim if you
are not going to harvest your acreage. Such appraisals may be conducted
after the end of the insurance period. If you harvest the crop after the
crop has been appraised:
(1) You must provide us with the amount of harvested production (If
you fail to provide verifiable records of harvested production, no
indemnity will be paid and you will be required to return any previously
paid indemnity for the unit that was based on an appraised amount of
production); and
(2) If the harvested production exceeds the appraised production,
claims will be adjusted using the harvested production, and you will be
required to repay any overpaid indemnity; or
(3) If the harvested production is less than the appraised
production, and:
(i) You harvest after the end of the insurance period, your
appraised production will be used to adjust the loss unless you can
prove that no additional causes of loss or deterioration of the crop
occurred after the end of the insurance period; or
(ii) You harvest before the end of the insurance period, your
harvested production will be used to adjust the loss.
(c) If you elect to exclude hail and fire as insured causes of loss
and the insured crop is damaged by hail or fire, appraisals will be made
as described in our form used to exclude fire and hail.
(d) The amount of an indemnity that may be determined under the
applicable provisions of your policy may be reduced by an amount,
determined in accordance with the Crop Provisions or Special Provisions,
to reflect out-of-pocket expenses that were not incurred by you as a
result of not planting, caring for, or harvesting the crop. Indemnities
paid for acreage prevented from being planted will be based on a reduced
guarantee as provided for in the policy and will not be further reduced
to reflect expenses not incurred.
(e) With respect to acreage where you have suffered an insurable
loss to planted acreage of your first insured crop in the crop year,
except in the case of double cropping described in section 15(h):
(1) You may elect to not plant or to plant and not insure a second
crop on the same acreage for harvest in the same crop year and collect
an indemnity payment that is equal to 100 percent of the insurable loss
for the first insured crop; or
(2) You may elect to plant and insure a second crop on the same
acreage for harvest in the same crop year (you will pay the full premium
and, if there is an insurable loss to the second crop, receive the full
amount of indemnity that may be due for the second crop, regardless of
whether there is a subsequent crop planted on the same acreage) and:
(i) Collect an indemnity payment that is 35 percent of the insurable
loss for the first insured crop;
(ii) Be responsible for premium that is 35 percent of the premium
that you would otherwise owe for the first insured crop; and
(iii) If the second crop does not suffer an insurable loss:
(A) Collect an indemnity payment for the other 65 percent of
insurable loss that was not previously paid under section 15(e)(2)(i);
and
(B) Be responsible for the remainder of the premium for the first
insured crop that you did not pay under section 15(e)(2)(ii).
(f) With respect to acreage where you were prevented from planting
the first insured crop in the crop year, except in the case of double
cropping described in section 15(h):
(1) If a second crop is not planted on the same acreage for harvest
in the same crop year, you may collect a prevented planting payment that
is equal to 100 percent of the prevented planting payment for the
acreage for the first insured crop; or
(2) If a second crop is planted on the same acreage for harvest in
the same crop year (you will pay the full premium and, if there is an
insurable loss to the second crop, receive the full amount of indemnity
that may be due for the second crop, regardless of whether there is a
subsequent crop planted on the same acreage) and:
(i) Provided the second crop is not planted on or before the final
planting date or during the late planting period (as applicable) for the
first insured crop, you may collect a prevented planting payment that is
35 percent of the prevented planting payment for the first insured crop;
and
(ii) Be responsible for premium that is 35 percent of the premium
that you would otherwise owe for the first insured crop.
(g) The reduction in the amount of indemnity or prevented planting
payment and premium specified in sections 15(e) and 15(f), as
applicable, will apply:
[[Page 146]]
(1) Notwithstanding the priority contained in the Agreement to
Insure section, which states that the Crop Provisions have priority over
the Basic Provisions when a conflict exists, to any premium owed or
indemnity or prevented planting payment made in accordance with the Crop
Provisions, and any applicable endorsement.
(2) Even if another person plants the second crop on any acreage
where the first insured crop was planted or was prevented from being
planted, as applicable.
(3) For prevented planting only:
(i) If a volunteer crop or cover crop is hayed or grazed from the
same acreage, after the late planting period (or after the final
planting date if a late planting period is not applicable) for the first
insured crop in the same crop year, or is otherwise harvested anytime
after the late planting period (or after the final planting date if a
late planting period is not applicable); or
(ii) If you receive cash rent for any acreage on which you were
prevented from planting.
(h) You may receive a full indemnity, or a full prevented planting
payment for a first insured crop when a second crop is planted on the
same acreage in the same crop year, regardless of whether or not the
second crop is insured or sustains an insurable loss, if each of the
following conditions are met:
(1) It is a practice that is generally recognized by agricultural
experts or the organic cultural experts for the area to plant two or
more crops for harvest in the same crop year;
(2) The second or more crops are customarily planted after the first
insured crop for harvest on the same acreage in the same crop year in
the area;
(3) Additional coverage insurance offered under the authority of the
Act is available in the county on the two or more crops that are double
cropped;
(4) You provide records acceptable to us of acreage and production
that show you have double cropped acreage in at least two of the last
four crop years in which the first insured crop was planted, or that
show the applicable acreage was double cropped in at least two of the
last four crop years in which the first insured crop was grown on it;
and
(5) In the case of prevented planting, the second crop is not
planted on or prior to the final planting date or, if applicable, prior
to the end of the late planting period for the first insured crop.
(i) The receipt of a full indemnity or prevented planting payment on
both crops that are double cropped is limited to the number of acres for
which you can demonstrate you have double cropped or that have been
historically double cropped as specified in section 15(h).
(1) If the records you provided are from acreage you double cropped
in at least two of the last four crop years, you may apply your history
of double cropping to any acreage of the insured crop in the county
(e.g., if you have double cropped 100 acres of wheat and soybeans in the
county and you acquire an additional 100 acres in the county, you can
apply that history of double cropped acreage to any of the 200 acres in
the county as long as it does not exceed 100 acres); or
(2) If the records you provided are from acreage that another
producer double cropped in at least two of the last four crop years, you
may only use the history of double cropping for the same physical acres
from which double cropping records were provided (e.g., if a neighbor
has double cropped 100 acres of wheat and soybeans in the county and you
acquire your neighbor's 100 double cropped acres and an additional 100
acres in the county, you can only apply your neighbor's history of
double cropped acreage to the same 100 acres that your neighbor double
cropped).
(j) If any Federal or State agency requires destruction of any
insured crop or crop production, as applicable, because it contains
levels of a substance, or has a condition, that is injurious to human or
animal health in excess of the maximum amounts allowed by the Food and
Drug Administration, other public health organizations of the United
States or an agency of the applicable State, you must destroy the
insured crop or crop production, as applicable, and certify that such
insured crop or crop production has been destroyed prior to receiving an
indemnity payment. Failure to destroy the insured crop or crop
production, as applicable, will result in you having to repay any
indemnity paid and you may be subject to administrative sanctions in
accordance with section 515(h) of the Act and 7 CFR part 400, subpart R,
and any applicable civil or criminal sanctions.
16. Late Planting
Unless limited by the Crop Provisions, insurance will be provided
for acreage planted to the insured crop after the final planting date in
accordance with the following:
(a) The production guarantee or amount of insurance for each acre
planted to the insured crop during the late planting period will be
reduced by 1 percent per day for each day planted after the final
planting date.
(b) Acreage planted after the late planting period (or after the
final planting date for crops that do not have a late planting period)
may be insured as follows:
(1) The production guarantee or amount of insurance for each acre
planted as specified in this subsection will be determined by
multiplying the production guarantee or amount of insurance that is
provided for acreage of the insured crop that is timely planted by the
prevented planting coverage level percentage you elected, or that is
contained in the Crop Provisions if you did not elect a
[[Page 147]]
prevented planting coverage level percentage;
(2) Planting on such acreage must have been prevented by the final
planting date (or during the late planting period, if applicable) by an
insurable cause occurring within the insurance period for prevented
planting coverage; and
(3) All production from insured acreage as specified in this section
will be included as production to count for the unit.
(c) The premium amount for insurable acreage specified in this
section will be the same as that for timely planted acreage. If the
amount of premium you are required to pay (gross premium less our
subsidy) for such acreage exceeds the liability, coverage for those
acres will not be provided (no premium will be due and no indemnity will
be paid).
(d) Any acreage on which an insured cause of loss is a material
factor in preventing completion of planting, as specified in the
definition of ``planted acreage'' (e.g., seed is broadcast on the soil
surface but cannot be incorporated) will be considered as acreage
planted after the final planting date and the production guarantee will
be calculated in accordance with section 16(b)(1).
17. Prevented Planting
(a) Unless limited by the policy provisions, a prevented planting
payment may be made to you for eligible acreage if:
(1) You are prevented from planting the insured crop on insurable
acreage by an insured cause of loss that occurs:
(i) On or after the sales closing date contained in the Special
Provisions for the insured crop in the county for the crop year the
application for insurance is accepted; or
(ii) For any subsequent crop year, on or after the sales closing
date for the previous crop year for the insured crop in the county,
provided insurance has been in force continuously since that date.
Cancellation for the purpose of transferring the policy to a different
insurance provider for the subsequent crop year will not be considered a
break in continuity for the purpose of the preceding sentence;
(2) You include on your acreage report any insurable acreage of the
insured crop that was prevented from being planted; and
(3) You did not plant the insured crop during or after the late
planting period. Acreage planted to the insured crop during or after the
late planting period is covered under the late planting provisions.
(b) The actuarial documents may contain additional levels of
prevented planting coverage that you may purchase for the insured crop:
(1) Such purchase must be made on or before the sales closing date.
(2) If you do not purchase one of those additional levels by the
sales closing date, you will receive the prevented planting coverage
specified in the Crop Provisions.
(3) If you have a Catastrophic Risk Protection Endorsement for any
crop, the additional levels of prevented planting coverage will not be
available for that crop.
(4) You cannot increase your elected or assigned prevented planting
coverage level for any crop year if a cause of loss that could prevent
planting (even though it is not known whether such cause will actually
prevent planting) has occurred during the prevented planting insurance
period specified in section 17(a)(1)(i) or (ii) and prior to your
request to change your prevented planting coverage level.
(c) The premium amount for acreage that is prevented from being
planted will be the same as that for timely planted acreage except as
specified in section 15(f). If the amount of premium you are required to
pay (gross premium less the subsidy) for acreage that is prevented from
being planted exceeds the liability on such acreage, coverage for those
acres will not be provided (no premium will be due and no indemnity will
be paid for such acreage).
(d) Prevented planting coverage will be provided against:
(1) Drought, failure of the irrigation water supply, failure or
breakdown of irrigation equipment or facilities, or the inability to
prepare the land for irrigation using your established irrigation
method, due to an insured cause of loss only if, on the final planting
date (or within the late planting period if you elect to try to plant
the crop), you provide documentation acceptable to us to establish:
(i) For non-irrigated acreage, the area that is prevented from being
planted has insufficient soil moisture for germination of seed or
progress toward crop maturity due to a prolonged period of dry weather.
The documentation for prolonged period of dry weather must be verifiable
using information collected by sources whose business it is to record
and study the weather, including, but not limited to, local weather
reporting stations of the National Weather Service; or
(ii) For irrigated acreage:
(A) Due to an insured cause of loss, there is not a reasonable
expectation of having adequate water to carry out an irrigated practice
or you are unable to prepare the land for irrigation using your
established irrigation method:
(1) If you knew or had reason to know on the final planting date or
during the late planting period that your water will be reduced, no
reasonable expectation exists; and
(2) Available water resources will be verified using information
from State Departments of Water Resources, U.S. Bureau of Reclamation,
Natural Resources Conservation Service or other sources whose
[[Page 148]]
business includes collection of water data or regulation of water
resources; or
(B) The irrigation equipment or facilities have failed or broken
down if such failure or breakdown is due to an insured cause of loss
specified in section 12(d).
(2) Causes other than drought, failure of the irrigation water
supply, failure or breakdown of the irrigation equipment or facilities,
or your inability to prepare the land for irrigation using your
established irrigation method, provided the cause of loss is specified
in the Crop Provisions. However, if it is possible for you to plant on
or prior to the final planting date when other producers in the area are
planting and you fail to plant, no prevented planting payment will be
made.
(e) The maximum number of acres that may be eligible for a prevented
planting payment for any crop will be determined as follows:
(1) The total number of acres eligible for prevented planting
coverage for all crops cannot exceed the number of acres of cropland in
your farming operation for the crop year, unless you are eligible for
prevented planting coverage on double cropped acreage in accordance with
section 17(f)(4). The eligible acres for each insured crop will be
determined as follows:
(i) If you have planted any crop in the county for which prevented
planting insurance was available (you will be considered to have planted
if your APH database contains actual planted acres) or have received a
prevented planting insurance guarantee in any one or more of the four
most recent crop years, and the insured crop is not required to be
contracted with a processor to be insured:
(A) The number of eligible acres will be the maximum number of acres
certified for APH purposes, or insured acres reported, for the crop in
any one of the four most recent crop years (not including reported
prevented planting acreage that was planted to a second crop unless you
meet the double cropping requirements in section 17(f)(4)).
(B) If you acquire additional land for the current crop year, the
number of eligible acres determined in section 17(e)(1)(i)(A) for a crop
may be increased by multiplying it by the ratio of the total cropland
acres that you are farming this year (if greater) to the total cropland
acres that you farmed in the previous year, provided that:
(1) You submit proof to us that you acquired additional acreage for
the current crop year by any of the methods specified in section
17(f)(12);
(2) The additional acreage was acquired in time to plant it for the
current crop year using good farming practices; and
(3) No cause of loss has occurred at the time you acquire the
acreage that may prevent planting (except acreage you lease the previous
year and continue to lease in the current crop year).
(C) If you add adequate irrigation facilities to your existing non-
irrigated acreage or if you acquire additional land for the current crop
year that has adequate irrigation facilities, the number of eligible
acres determined in section 17(e)(1)(i)(A) for irrigated acreage of a
crop may be increased by multiplying it by the ratio of the total
irrigated acres that you are farming this year (if greater) to the total
irrigated acres that you farmed in the previous year, provided the
conditions in sections 17(e)(1)(i)(B)(1), (2) and (3) are met. If there
were no irrigated acres in the previous year, the eligible irrigated
acres for a crop will be limited to the lesser of the number of eligible
non-irrigated acres of the crop or the number of acres on which adequate
irrigation facilities were added.
(ii) If you have not planted any crop in the county for which
prevented planting insurance was available (you will be considered to
have planted if your APH database contains actual planted acres) or have
not received a prevented planting insurance guarantee in all of the four
most recent crop years, and the insured crop is not required to be
contracted with a processor to be insured:
(A) The number of eligible acres will be:
(1) The number of acres specified on your intended acreage report,
which must be submitted to us by the sales closing date for all crops
you insure for the crop year and that is accepted by us; or
(2) The number of acres specified on your intended acreage report,
which must be submitted to us within 10 days of the time you acquire the
acreage and that is accepted by us, if, on the sales closing date, you
do not have any acreage in a county and you subsequently acquire acreage
through a method described in section 17(f)(12) in time to plant it
using good farming practices.
(B) The total number of acres listed on the intended acreage report
may not exceed the number of acres of cropland in your farming operation
at the time you submit the intended acreage report.
(C) If you acquire additional acreage after we accept your intended
acreage report, the number of acres determined in section
17(e)(1)(ii)(A) may be increased in accordance with section
17(e)(1)(i)(B) and (C).
(D) Prevented planting coverage will not be provided for any acreage
included on the intended acreage report or any increased amount of
acreage determined in accordance with section 17(e)(1)(ii)(C) if a cause
of loss that may prevent planting occurred before the acreage was
acquired, as determined by us.
(iii) For any crop that must be contracted with a processor to be
insured:
(A) The number of eligible acres will be:
(1) The number of acres of the crop specified in the processor
contract, if the contract specifies a number of acres contracted for the
crop year;
[[Page 149]]
(2) The result of dividing the quantity of production stated in the
processor contract by your approved yield, if the processor contract
specifies a quantity of production that will be accepted (for the
purposes of establishing the number of prevented planting acres, any
reductions applied to the transitional yield for failure to certify
acreage and production for four prior years will not be used); or
(3) Notwithstanding sections 17(e)(1)(iii)(A)(1) and (2), if a
minimum number of acres or amount of production is specified in the
processor contract, this amount will be used to determine the eligible
acres.
(B) If a processor cancels or does not provide contracts, or reduces
the contracted acreage or production from what would have otherwise been
allowed, solely because the acreage was prevented from being planted due
to an insured cause of loss, we will determine the number of eligible
acres based on the number of acres or amount of production you had
contracted in the county in the previous crop year. If the applicable
Crop Provisions require that the price election be based on a contract
price, and a contract is not in force for the current year, the price
election will be based on the contract price in place for the previous
crop year. If you did not have a processor contract in place for the
previous crop year, you will not have any eligible prevented planting
acreage for the applicable processor crop. The total eligible prevented
planting acres in all counties cannot exceed the total number of acres
or amount of production contracted in all counties in the previous crop
year.
(2) Any eligible acreage determined in accordance with section
17(e)(1) will be reduced by subtracting the number of acres of the crop
(insured and uninsured) that are timely and late planted, including
acreage specified in section 16(b).
(f) Regardless of the number of eligible acres determined in section
17(e), prevented planting coverage will not be provided for any acreage:
(1) That does not constitute at least 20 acres or 20 percent of the
insurable crop acreage in the unit, whichever is less (If the crop is in
a whole-farm unit, the 20 acre or 20 percent requirement will be applied
separately to each crop in the whole-farm unit). Any prevented planting
acreage within a field that contains planted acreage will be considered
to be acreage of the same crop, type, and practice that is planted in
the field unless:
(i) The acreage that was prevented from being planted constitutes at
least 20 acres or 20 percent of the total insurable acreage in the field
and you produced both crops, crop types, or followed both practices in
the same field in the same crop year within any one of the four most
recent crop years;
(ii) You were prevented from planting a first insured crop and you
planted a second crop in the field (There can only be one first insured
crop in a field unless the requirements in section 17(f)(1)(i) or (iii)
are met); or
(iii) The insured crop planted in the field would not have been
planted on the remaining prevented planting acreage (e.g., where
rotation requirements would not be met or you already planted the total
number of acres specified in the processor contact);
(2) For which the actuarial documents do not provide the information
needed to determine the premium rate, unless a written agreement
designates such premium rate;
(3) Used for conservation purposes, intended to be left unplanted
under any program administered by the USDA or other government agency,
or required to be left unharvested under the terms of the lease or any
other agreement (The number of acres eligible for prevented planting
will be limited to the number of acres specified in the lease for which
you are required to pay either cash or share rent);
(4) On which the insured crop is prevented from being planted, if
you or any other person receives a prevented planting payment for any
crop for the same acreage in the same crop year, excluding share
arrangements, unless:
(i) It is a practice that is generally recognized by agricultural
experts or organic agricultural experts in the area to plant the insured
crop for harvest following harvest of the first insured crop, and
additional coverage insurance offered under the authority of the Act is
available in the county for both crops in the same crop year;
(ii) For the insured crop that is prevented from being planted, you
provide records acceptable to us of acreage and production that show, in
at least two of the last four crop years:
(A) You have double cropped acreage on which the insured crop that
is prevented from being planted in the current crop year was grown (You
may apply your history of double cropping to any acreage of the insured
crop in the county (e.g., if you have double cropped 100 acres of wheat
and soybeans in the county and you acquire an additional 100 acres in
the county, you can apply that history of double cropped acreage to any
of the 200 acres in the county as long as it does not exceed 100
acres)); or
(B) The acreage you are prevented from planting in the current crop
year was double cropped with the insured crop that is prevented from
being planted (You may only use the history of double cropping for the
same physical acres from which double cropping records were provided
(e.g., if a neighbor has double cropped 100 acres of wheat and soybeans
in the county and you acquire your neighbor's 100 double cropped acres
and an
[[Page 150]]
additional 100 acres in the county, you can only apply your neighbor's
history of double cropped acreage to the same 100 acres that your
neighbor double cropped)); and
(iii) The amount of acreage you are double cropping in the current
crop year does not exceed the number of acres for which you provided the
records required in section 17(f)(4)(ii);
(5) On which the insured crop is prevented from being planted, if:
(i) Any crop is planted within or prior to the late planting period
or on or prior to the final planting date if no late planting period is
applicable, unless:
(A) You meet the double cropping requirements in section 17(f)(4);
(B) The crop planted was a cover crop; or
(C) No benefit, including any benefit under any USDA program, was
derived from the crop; or
(ii) Any volunteer or cover crop is hayed, grazed or otherwise
harvested within or prior to the late planting period or on or prior to
the final planting date if no late planting period is applicable;
(6) For which planting history or conservation plans indicate the
acreage would have remained fallow for crop rotation purposes or on
which any pasture or forage crop is in place on the acreage during the
time planting of the insured crop generally occurs in the area. Cover
plants that are seeded, transplanted, or that volunteer:
(i) More than 12 months prior to the final planting date for the
insured crop that was prevented from being planted will be considered
pasture or a forage crop that is in place (e.g., the cover crop is
planted 15 months prior to the final planting date and remains in place
during the time the insured crop would normally be planted); or
(ii) Less than 12 months prior to the final planting date for the
insured crop that was prevented from being planted will not be
considered pasture or a forage crop that is in place;
(7) That exceeds the number of acres eligible for a prevented
planting payment;
(8) That exceeds the number of eligible acres physically available
for planting;
(9) For which you cannot provide proof that you had the inputs
(including, but not limited to, sufficient equipment and manpower)
available to plant and produce a crop with the expectation of producing
at least the yield used to determine your production guarantee or amount
of insurance. Evidence that you previously had planted the crop on the
unit will be considered adequate proof unless:
(i) There has been a change in the availability of inputs since the
crop was last planted that could affect your ability to plant and
produce the insured crop;
(ii) We determine you have insufficient inputs to plant the total
number of insured crop acres (e.g., you will not receive a prevented
planting payment if you have sufficient inputs to plant only 80 acres
but you have already planted 80 acres and are claiming prevented
planting on an additional 100 acres); or
(iii) Your planting practices or rotational requirements show the
acreage would have remained fallow or been planted to another crop;
(10) Based on an irrigated practice production guarantee or amount
of insurance unless adequate irrigation facilities were in place to
carry out an irrigated practice on the acreage prior to the insured
cause of loss that prevented you from planting. Acreage with an
irrigated practice production guarantee will be limited to the number of
acres allowed for that practice under sections 17(e) and (f);
(11) Based on a crop type that you did not plant, or did not receive
a prevented planting insurance guarantee for, in at least one of the
four most recent crop years:
(i) Types for which separate projected prices or price elections, as
applicable, amounts of insurance, or production guarantees are available
must be included in your APH database in at least one of the four most
recent crop years (Crops for which the insurance guarantee is not based
on APH must be reported on your acreage report in at least one of the
four most recent crop years) except as allowed in section 17(e)(1)(ii)
or (iii); and
(ii) We will limit prevented planting payments based on a specific
crop type to the number of acres allowed for that crop type as specified
in sections 17(e) and (f); or
(12) If a cause of loss has occurred that may prevent planting at
the time:
(i) You lease the acreage (except acreage you leased the previous
crop year and continue to lease in the current crop year);
(ii) You buy the acreage;
(iii) The acreage is released from a USDA program which prohibits
harvest of a crop;
(iv) You request a written agreement to insure the acreage; or
(v) You acquire the acreage through means other than lease or
purchase (such as inherited or gifted acreage).
(g) If you purchased an additional coverage policy for a crop, and
you executed a High-Risk Land Exclusion Option that separately insures
acreage which has been designated as ``high-risk'' land by FCIC under a
Catastrophic Risk Protection Endorsement for that crop, the maximum
number of acres eligible for a prevented planting payment will be
limited for each policy as specified in sections 17(e) and (f).
(h) If you are prevented from planting a crop for which you do not
have an adequate base of eligible prevented planting acreage, as
determined in accordance with section 17(e)(1), we will use acreage from
another
[[Page 151]]
crop insured for the current crop year for which you have remaining
eligible prevented planting acreage.
(1) The crop first used for this purpose will be the insured crop
that would have a prevented planting payment most similar to the payment
for the crop that was prevented from being planted.
(i) If there are still insufficient eligible prevented planting
acres, the next crop used will be the insured crop that would have the
next closest prevented planting payment.
(ii) In the event payment amounts based on other crops are an equal
amount above and below the payment amount for the crop that was
prevented from being planted, eligible acres for the crop with the
higher payment amount will be used first.
(2) The prevented planting payment and premium will be based on:
(i) The crop that was prevented from being planted if the insured
crop with remaining eligible acreage would have resulted in a higher
prevented planting payment than would have been paid for the crop that
was prevented from being planted; or
(ii) The crop from which eligible acres are being used if the
insured crop with remaining eligible acreage will result in a lower
prevented planting payment than would have been paid for the crop that
was prevented from being planted.
(3) For example, assume you were prevented from planting 200 acres
of corn and you have 100 acres eligible for a corn prevented planting
guarantee that would result in a payment of $40 per acre. You also had
50 acres of potato eligibility that would result in a $100 per acre
payment and 90 acres of grain sorghum eligibility that would result in a
$30 per acre payment. Your prevented planting coverage will be based on
100 acres of corn ($40 per acre), 90 acres of grain sorghum ($30 per
acre), and an additional 10 acres of corn (using potato eligible acres
and paid as corn at $40 per acre). Your prevented planting payment would
be $7,100 ($4,000 + $2,700 + $400).
(4) Prevented planting coverage will be allowed as specified in
section 17(h) only if the crop that was prevented from being planted
meets all the policy provisions, except for having an adequate base of
eligible prevented planting acreage. Payment may be made based on crops
other than those that were prevented from being planted even though
other policy provisions, including but not limited to, processor
contract and rotation requirements, have not been met for the crop whose
eligible acres are being used.
(5) An additional administrative fee will not be due as a result of
using eligible prevented planting acreage as specified in section 17(h).
(i) The prevented planting payment for any eligible acreage within a
unit will be determined by:
(1) Multiplying the prevented planting coverage level percentage you
elected, or that is contained in the Crop Provisions if you did not
elect a prevented planting coverage level percentage, by:
(i) Your amount of insurance per acre; or
(ii) The amount determined by multiplying the production guarantee
(per acre) for timely planted acreage of the insured crop (or type, if
applicable) by your price election or your projected price, whichever is
applicable;
(2) Multiplying the result of section 17(i)(1) by the number of
eligible prevented planting acres in the unit; and
(3) Multiplying the result of section 17(i)(2) by your share.
18. Written Agreements
Terms of this policy which are specifically designated for the use
of written agreements may be altered by written agreement in accordance
with the following:
(a) You must apply in writing for each written agreement (including
renewal of a written agreement) no later than the sales closing date,
except as provided in section 18(e);
(b) The application for a written agreement must contain all
variable terms of the contract between you and us that will be in effect
if the written agreement is not approved;
(c) If approved by FCIC, the written agreement will include all
variable terms of the contract, including, but not limited to, the crop;
practice, type or variety; guarantee; premium rate; and projected price,
harvest price, price election or amount of insurance, as applicable, or
the information needed to determine such variable terms. If the written
agreement is for a county:
(1) That has a price election or amount of insurance stated in the
Special Provisions, or an addendum thereto, for the crop, practice, type
or variety, the written agreement will contain the price election or
amount of insurance stated in the Special Provisions, or an addendum
thereto, for the crop, practice, type or variety;
(2) That does not have price elections or amounts of insurance
stated in the Special Provisions, or an addendum thereto, for the crop,
practice, type or variety, the written agreement will contain a price
election or amount of insurance that does not exceed the price election
or amount of insurance contained in the Special Provisions, or an
addendum thereto, for the county that is used to establish the other
terms of the written agreement, unless otherwise authorized by the Crop
Provisions;
(3) For which revenue protection is not available for the crop, but
revenue protection is available in the State for the crop, the written
agreement will contain the information used to establish the projected
price
[[Page 152]]
and harvest price, as applicable, for that State; or
(4) In a State for which revenue protection is not available for the
crop, but revenue protection is available for the crop in another State,
the written agreement is available for yield protection only, and will
contain the information needed to determine the projected price for the
crop from another State as determined by FCIC;
(d) Each written agreement will only be valid for the number of crop
years specified in the written agreement, and a multi-year written
agreement:
(1) Will only apply for any particular crop year designated in the
written agreement if all terms and conditions in the written agreement
are still applicable for the crop year and the conditions under which
the written agreement has been provided have not changed prior to the
beginning of the insurance period (If conditions change during or prior
to the crop year, the written agreement will not be effective for that
crop year but may still be effective for a subsequent crop year if
conditions under which the written agreement has been provided exist for
such year);
(2) May be canceled in writing by:
(i) FCIC not less than 30 days before the cancellation date if it
discovers that any term or condition of the written agreement, including
the premium rate, is not appropriate for the crop; or
(ii) You or us on or before the cancellation date;
(3) That is not renewed in writing after it expires, is not
applicable for a crop year, or is canceled, then insurance coverage will
be in accordance with the terms and conditions stated in this policy,
without regard to the written agreement; and
(4) Will be automatically canceled if you transfer your policy to
another insurance provider (No notice will be provided to you and for
any subsequent crop year, for a written agreement to be effective, you
must timely request renewal of the written agreement in accordance with
this section);
(e) A request for a written agreement may be submitted:
(1) After the sales closing date, but on or before the acreage
reporting date, if you demonstrate your physical inability to submit the
request on or before the sales closing date (e.g., you have been
hospitalized or a blizzard has made it impossible to submit the written
agreement request in person or by mail);
(2) For the first year the written agreement is requested:
(i) On or before the acreage reporting date to:
(A) Insure unrated land, or an unrated practice, type or variety of
a crop; although, if required by FCIC, such written agreements may be
approved only after appraisal of the acreage by us and:
(1) The crop's potential is equal to or exceeds 90 percent of the
yield used to determine your production guarantee or amount of
insurance; and
(2) You sign the written agreement no later than the date the first
field is appraised or by the expiration date for you to accept the
offer, whichever comes first; or
(B) Establish optional units in accordance with FCIC procedures that
otherwise would not be allowed, change the premium rate or transitional
yield for designated high-risk land, or insure acreage that is greater
than five percent of the planted acreage in the unit where the acreage
has not been planted and harvested or insured in any of the three
previous crop years;
(ii) On or before the cancellation date to insure a crop in a county
that does not have actuarial documents for the crop (If the Crop
Provisions do not provide a cancellation date for the county, the
cancellation date for other insurable crops in the same State that have
similar final planting and harvesting dates will be applicable); or
(iii) On or before the date specified in the Crop Provisions or
Special Provisions; or
(3) For adding land or a crop to either an existing written
agreement or a request for a written agreement, provided the request is
submitted by the applicable deadline specified in section 18;
(f) A request for a written agreement must contain:
(1) For all written agreement requests:
(i) A completed ``Request for Actuarial Change'' form;
(ii) An APH form (except for policies that do not require APH)
containing all the information needed to determine the approved yield
for the current crop year (completed APH form), signed by you, or an
unsigned, completed APH form with the applicable production reports
signed and dated by you that are based on verifiable records of actual
yields for the crop and county for which the written agreement is being
requested (the actual yields do not necessarily have to be from the same
physical acreage for which you are requesting a written agreement) for
at least the most recent crop year in which the crop was planted during
the base period and verifiable records of actual yields if required by
FCIC;
(iii) Evidence from agricultural experts or organic agricultural
experts, as applicable, that the crop can be produced in the area if the
request is to provide insurance for practices, types, or varieties that
are not insurable, unless we are notified in writing by FCIC that such
evidence is not required by FCIC;
(iv) The legal description of the land (in areas where legal
descriptions are available) and the FSA farm serial number including
[[Page 153]]
tract and field numbers, if available. The submission must also include
an FSA aerial photograph, or field boundaries derived by a Geographic
Information System or Global Positioning System, or other legible maps
delineating field boundaries where you intend to plant the crop for
which insurance is requested;
(v) For any perennial crop, an inspection report completed by us;
and
(vi) All other information that supports your request for a written
agreement (including but not limited to records pertaining to levees,
drainage systems, flood frequency data, soil types, elevation, etc.);
(2) For written agreement requests for counties without actuarial
documents for the crop, the requirements in section 18(f)(1) (except
section 18(f)(1)(ii)) and:
(i) For a crop you have previously planted in the county or area for
at least three years:
(A) A completed APH form signed by you (only for crop policies that
require APH) based on verifiable production records for at least the
three most recent crop years in which the crop was planted; and
(B) Verifiable production records for at least the three most recent
crop years in which the crop was planted:
(1) The verifiable production records do not necessarily have to be
from the same physical acreage for which you are requesting a written
agreement; and
(2) Verifiable production records do not have to be submitted if you
have insured the crop in the county or area for at least the previous
three crop years and have certified the yields on the applicable
production reports or the yields are based on your insurance claim
(although you are not required to submit production records, you still
must maintain production records in accordance with section 21);
(ii) For a crop you have not previously planted in the county or
area for at least three years:
(A) A completed APH form signed by you (only for crop policies that
require APH) based on verifiable production records for at least the
three most recent crop years for a similar crop from acreage:
(1) In the county; or
(2) In the area if you have not produced the crop in the county; and
(B) Verifiable production records for at least the three most recent
crop years in which the similar crop was planted:
(1) The verifiable production records for the similar crop do not
necessarily have to be from the same physical acreage for which you are
requesting a written agreement; and
(2) Verifiable production records do not have to be submitted if you
have insured the similar crop for at least the three previous crop years
and have certified the yields on the applicable production reports or
the yields are based on your insurance claim (although you are not
required to submit production records, you still must maintain
production records in accordance with section 21);
(C) If you have at least one year of production records, but less
than three years of production records, for the crop in the county or
area but have production records for a similar crop in the county or
area such that the combination of both sets of records results in at
least three years of production records, you must provide the
information required in sections 18(f)(2)(i)(A) & (B) for the years you
grew the crop in the county or area and the information required in
sections 18(f)(2)(ii)(A) & (B) regarding the similar crop for the
remaining years; and
(D) A similar crop to the crop for which a written agreement is
being requested must:
(1) Be included in the same category of crops, e.g., row crops
(including, but not limited to, small grains, coarse grains, and oil
seed crops), vegetable crops grown in rows, tree crops, vine crops, bush
crops, etc., as defined by FCIC;
(2) Have substantially the same growing season (i.e., normally
planted around the same dates and harvested around the same dates);
(3) Require comparable agronomic conditions (e.g., comparable needs
for water, soil, etc.); and
(4) Be subject to substantially the same risks (frequency and
severity of loss would be expected to be comparable from the same cause
of loss);
(iii) The dates you and other growers in the area normally plant and
harvest the crop, if applicable;
(iv) The name, location of, and approximate distance to the place
the crop will be sold or used by you;
(v) For any irrigated practice, the water source, method of
irrigation, and the amount of water needed for an irrigated practice for
the crop; and
(vi) All other information that supports your request for a written
agreement (such as publications regarding yields, practices, risks,
climatic data, etc.); and
(3) Such other information as specified in the Special Provisions or
required by FCIC;
(g) A request for a written agreement will not be accepted if:
(1) The request is submitted to us after the applicable deadline
contained in sections 18(a) or (e);
(2) All the information required in section 18(f) is not submitted
to us with the request for a written agreement (The request for a
written agreement may be accepted if any missing information is
available from other acceptable sources);
(3) The request is to add land to an existing written agreement or
to add land to a request for a written agreement and the request to add
the land is not submitted by the
[[Page 154]]
applicable deadline specified in sections 18(a) or (e); or
(4) The request is not authorized by the policy;
(h) A request for a written agreement will be denied if:
(1) FCIC determines the risk is excessive;
(2) Your APH history demonstrates you have not produced at least 50
percent of the transitional yield for the crop, type, and practice
obtained from a county with similar agronomic conditions and risk
exposure;
(3) There is not adequate information available to establish an
actuarially sound premium rate and insurance coverage for the crop and
acreage;
(4) The crop was not previously grown in the county or there is no
evidence of a market for the crop based on sales receipts,
contemporaneous feeding records or a contract for the crop (applicable
only for counties without actuarial documents); or
(5) Agricultural experts or organic agricultural experts determine
the crop is not adapted to the county;
(i) A written agreement will be denied unless:
(1) FCIC approves the written agreement;
(2) The original written agreement is signed by you and delivered to
us, or postmarked, not later than the expiration date for you to accept
the offer;
(3) We accept the written agreement offer; and
(4) The crop meets the minimum appraisal amount specified in section
18(e)(2)(i)(A)(1), if applicable;
(j) Multi-year written agreements may be canceled and requests for
renewal may be rejected if the severity or frequency of your loss
experience under the written agreement is significantly worse than
expected based on the information provided by you or used to establish
your premium rate and the loss experience of other crops with similar
risks in the area;
(k) With respect to your and our ability to reject an offer for a
written agreement:
(1) When a single Request for Actuarial Change form is submitted,
regardless of how many requests for changes are contained on the form,
you and we can only accept or reject the written agreement in its
entirety (you cannot reject specific terms of the written agreement and
accept others);
(2) When multiple Request for Actuarial Change forms are submitted,
regardless of when the forms are submitted, for the same condition or
for the same crop (i.e., to insure corn on ten legal descriptions where
there are no actuarial documents in the county or the request is to
change the premium rates from the high-risk rates) all these forms may
be treated as one request and you and we will only have the option of
accepting or rejecting the written agreement in its entirety (you cannot
reject specific terms of the written agreement and accept others);
(3) When multiple Request for Actuarial Change forms are submitted,
regardless of when the forms are submitted, for the different conditions
or for different crops, separate agreements may be issued and you and we
will have the option to accept or reject each written agreement; and
(4) If we reject an offer for a written agreement approved by FCIC,
you may seek arbitration or mediation of our decision to reject the
offer in accordance with section 20;
(l) Any information that is submitted by you after the applicable
deadlines in sections 18(a) and (e) will not be considered, unless such
information is specifically requested in accordance with section
18(f)(3);
(m) If the written agreement or the policy is canceled for any
reason, or the period for which an existing written agreement is in
effect ends, a request for renewal of the written agreement must contain
all the information required by this section and be submitted in
accordance with section 18(a), unless otherwise specified by FCIC;
(n) If a request for a written agreement is not approved by FCIC, a
request for a written agreement for any subsequent crop year that fails
to address the stated basis for the denial will not be accepted (If the
request for a written agreement contains the same information that was
previously rejected or denied, you will not have any right to arbitrate,
mediate or appeal the non-acceptance of your request); and
(o) If you disagree with any determination made by FCIC under
section 18, you may obtain administrative review in accordance with 7
CFR part 400, subpart J or appeal in accordance with 7 CFR part 11,
unless you have failed to comply with the provisions contained in
section 18(g) or section 18(i)(2) or (4).
19. Crops as Payment
You must not abandon any crop to us. We will not accept any crop as
compensation for payments due us.
[For FCIC Policies]
20. Appeal, Reconsideration, Administrative and Judicial Review
(a) All determinations required by the policy will be made by us.
(b) If you disagree with our determinations:
(1) Except for determinations specified in section 18(g), section
18(i)(2) or section 20(b)(2) or (3), you may obtain an administrative
review in accordance with 7 CFR part 400, subpart J (administrative
review) or appeal in accordance with 7 CFR part 11 (appeal);
(2) Regarding whether you have used good farming practices
(excluding determinations
[[Page 155]]
of the amount of assigned production for uninsured causes for your
failure to use good farming practices), you may request reconsideration
in accordance with the reconsideration process established for this
purpose and published at 7 CFR part 400, subpart J (reconsideration). To
appeal or request administrative review of determinations of the amount
of assigned production, you must use the appeal or administration review
process; or
(3) Any determination made by us that is a matter of general
applicability is not subject to administrative review under 7 CFR part
400, subpart J or appeal under 7 CFR part 11. If you want to seek
judicial review of any determination that is a matter of general
applicability, you must request a determination of non-appealability
from the Director of the National Appeals Division in accordance with 7
CFR part 11.6 prior to seeking judicial review.
(c) If you fail to exhaust your right to appeal, you will not be
able to resolve the dispute through judicial review.
(d) You are not required to exhaust your right to reconsideration
prior to seeking judicial review. If you do not request reconsideration
and you elect to file suit, such suit must be brought in accordance with
section 20(e)(2) and must be filed not later than one year after the
date the determination regarding whether you used good farming practices
was made.
(e) If reconsideration or appeal has been initiated within the time
frames specified in those sections and judicial review is sought, any
suit against us must be:
(1) Filed not later than one year after the date of the decision
rendered in the reconsideration or appeal; and
(2) Brought in the United States district court for the district in
which the insured farm involved in the decision is located.
(f) You may only recover contractual damages from us. Under no
circumstances can you recover any attorney fees or other expenses, or
any punitive, compensatory or any other damages from us in
administrative review, appeal, reconsideration or litigation.
[For Reinsured Policies]
20. Mediation, Arbitration, Appeal, Reconsideration, and Administrative
and Judicial Review
(a) If you and we fail to agree on any determination made by us
except those specified in section 20(d) or (e), the disagreement may be
resolved through mediation in accordance with section 20(g). If
resolution cannot be reached through mediation, or you and we do not
agree to mediation, the disagreement must be resolved through
arbitration in accordance with the rules of the American Arbitration
Association (AAA), except as provided in sections 20(c) and (f), and
unless rules are established by FCIC for this purpose. Any mediator or
arbitrator with a familial, financial or other business relationship to
you or us, or our agent or loss adjuster, is disqualified from hearing
the dispute.
(1) All disputes involving determinations made by us, except those
specified in section 20(d) or (e), are subject to mediation or
arbitration. However, if the dispute in any way involves a policy or
procedure interpretation, regarding whether a specific policy provision
or procedure is applicable to the situation, how it is applicable, or
the meaning of any policy provision or procedure, either you or we must
obtain an interpretation from FCIC in accordance with 7 CFR part 400,
subpart X or such other procedures as established by FCIC.
(i) Any interpretation by FCIC will be binding in any mediation or
arbitration.
(ii) Failure to obtain any required interpretation from FCIC will
result in the nullification of any agreement or award.
(iii) An interpretation by FCIC of a policy provision is considered
a determination that is a matter of general applicability.
(iv) An interpretation by FCIC of a procedure may be appealed to the
National Appeals Division in accordance with 7 CFR part 11.
(2) Unless the dispute is resolved through mediation, the arbitrator
must provide to you and us a written statement describing the issues in
dispute, the factual findings, the determinations and the amount and
basis for any award and breakdown by claim for any award. The statement
must also include any amounts awarded for interest. Failure of the
arbitrator to provide such written statement will result in the
nullification of all determinations of the arbitrator. All agreements
reached through settlement, including those resulting from mediation,
must be in writing and contain at a minimum a statement of the issues in
dispute and the amount of the settlement.
(b) Regardless of whether mediation is elected:
(1) The initiation of arbitration proceedings must occur within one
year of the date we denied your claim or rendered the determination with
which you disagree, whichever is later;
(2) If you fail to initiate arbitration in accordance with section
20(b)(1) and complete the process, you will not be able to resolve the
dispute through judicial review;
(3) If arbitration has been initiated in accordance with section
20(b)(1) and completed, and judicial review is sought, suit must be
filed not later than one year after the date the arbitration decision
was rendered; and
(4) In any suit, if the dispute in any way involves a policy or
procedure interpretation, regarding whether a specific policy provision
or procedure is applicable to the situation,
[[Page 156]]
how it is applicable, or the meaning of any policy provision or
procedure, an interpretation must be obtained from FCIC in accordance
with 7 CFR part 400, subpart X or such other procedures as established
by FCIC. Such interpretation will be binding.
(c) Any decision rendered in arbitration is binding on you and us
unless judicial review is sought in accordance with section 20(b)(3).
Notwithstanding any provision in the rules of the AAA, you and we have
the right to judicial review of any decision rendered in arbitration.
(d) With respect to good farming practices:
(1) We will make decisions regarding what constitutes a good farming
practice and determinations of assigned production for uninsured causes
for your failure to use good farming practices.
(i) If you disagree with our decision of what constitutes a good
farming practice, you must request a determination from FCIC of what
constitutes a good farming practice before filing any suit against FCIC.
(ii) If you disagree with our determination of the amount of
assigned production, you must use the arbitration or mediation process
contained in this section.
(iii) You may not sue us for our decisions regarding whether good
farming practices were used by you.
(2) FCIC will make determinations regarding what constitutes a good
farming practice. If you do not agree with any determination made by
FCIC:
(i) You may request reconsideration by FCIC of this determination in
accordance with the reconsideration process established for this purpose
and published at 7 CFR part 400, subpart J; or
(ii) You may file suit against FCIC.
(A) You are not required to request reconsideration from FCIC before
filing suit.
(B) Any suit must be brought against FCIC in the United States
district court for the district in which the insured acreage is located.
(C) Suit must be filed against FCIC not later than one year after
the date:
(1) Of the determination; or
(2) Reconsideration is completed, if reconsideration was requested
under section 20(d)(2)(i).
(e) Except as provided in sections 18(n) or (o), or 20(d) or (k), if
you disagree with any other determination made by FCIC or any claim
where FCIC is directly involved in the claims process or directs us in
the resolution of the claim, you may obtain an administrative review in
accordance with 7 CFR part 400, subpart J (administrative review) or
appeal in accordance with 7 CFR part 11 (appeal).
(1) If you elect to bring suit after completion of any appeal, such
suit must be filed against FCIC not later than one year after the date
of the decision rendered in such appeal.
(2) Such suit must be brought in the United States district court
for the district in which the insured acreage is located.
(3) Under no circumstances can you recover any attorney fees or
other expenses, or any punitive, compensatory or any other damages from
FCIC.
(f) In any mediation, arbitration, appeal, administrative review,
reconsideration or judicial process, the terms of this policy, the Act,
and the regulations published at 7 CFR chapter IV, including the
provisions of 7 CFR part 400, subpart P, are binding. Conflicts between
this policy and any state or local laws will be resolved in accordance
with section 31. If there are conflicts between any rules of the AAA and
the provisions of your policy, the provisions of your policy will
control.
(g) To resolve any dispute through mediation, you and we must both:
(1) Agree to mediate the dispute;
(2) Agree on a mediator; and
(3) Be present, or have a designated representative who has
authority to settle the case present, at the mediation.
(h) Except as provided in section 20(i), no award or settlement in
mediation, arbitration, appeal, administrative review or reconsideration
process or judicial review can exceed the amount of liability
established or which should have been established under the policy,
except for interest awarded in accordance with section 26.
(i) In a judicial review only, you may recover attorneys fees or
other expenses, or any punitive, compensatory or any other damages from
us only if you obtain a determination from FCIC that we, our agent or
loss adjuster failed to comply with the terms of this policy or
procedures issued by FCIC and such failure resulted in you receiving a
payment in an amount that is less than the amount to which you were
entitled. Requests for such a determination should be addressed to the
following: USDA/RMA/Deputy Administrator of Compliance/Stop 0806, 1400
Independence Avenue, SW., Washington, DC 20250-0806.
(j) If FCIC elects to participate in the adjustment of your claim,
or modifies, revises or corrects your claim, prior to payment, you may
not bring an arbitration, mediation or litigation action against us. You
must request administrative review or appeal in accordance with section
20(e).
(k) Any determination made by FCIC that is a matter of general
applicability is not subject to administrative review under 7 CFR part
400, subpart J or appeal under 7 CFR part 11. If you want to seek
judicial review of any FCIC determination that is a matter of general
applicability, you must request a determination of non-appealability
from the Director of the National Appeals
[[Page 157]]
Division in accordance with 7 CFR 11.6 before seeking judicial review.
21. Access to Insured Crop and Records, and Record Retention
(a) We, and any employee of USDA authorized to investigate or review
any matter relating to crop insurance, have the right to examine the
insured crop and all records related to the insured crop and any
mediation, arbitration or litigation involving the insured crop as often
as reasonably required during the record retention period.
(b) You must retain, and provide upon our request, or the request of
any employee of USDA authorized to investigate or review any matter
relating to crop insurance:
(1) Complete records of the planting, replanting, inputs,
production, harvesting, and disposition of the insured crop on each unit
for three years after the end of the crop year (This requirement also
applies to all such records for acreage that is not insured);
(2) All records used to establish the amount of production you
certified on your production reports used to compute your approved yield
for three years after the calendar date for the end of the insurance
period for the crop year for which you initially certified such records,
unless such records have already been provided to us (e.g., if you are a
new insured and you certify 2007 through 2010 crop year production
records in 2011 to determine your approved yield for the 2011 crop year,
you must retain all records from the 2007 through 2010 crop years
through the 2014 crop year. If you subsequently certify records of the
2011 crop year in 2012 to determine your approved yield for the 2012
crop year, you must retain the 2011 crop year records through the 2015
crop year and so forth for each subsequent year of production records
certified); and
(3) While you are not required to maintain records beyond the record
retention period specified in section 21(b)(2), at any time, if we or
FCIC have evidence that you, or anyone assisting you, knowingly
misreported any information related to any yield you have certified, we
or FCIC will replace all yields in your APH database determined to be
incorrect with the lesser of an assigned yield determined in accordance
with section 3 or the yield determined to be correct:
(i) If an overpayment has been made to you, you will be required to
repay the overpaid amount; and
(ii) Replacement of yields in accordance with section 21(b)(3) does
not exempt you from other sanctions applicable under the terms of the
policy or any applicable law.
(c) We, or any employee of USDA authorized to investigate or review
any matter relating to crop insurance, may extend the record retention
period beyond three years by notifying you of such extension in writing.
(d) By signing the application for insurance authorized under the
Act or by continuing insurance for which you have previously applied,
you authorize us or USDA, or any person acting for us or USDA authorized
to investigate or review any matter relating to crop insurance, to
obtain records relating to the planting, replanting, inputs, production,
harvesting, and disposition of the insured crop from any person who may
have custody of such records, including but not limited to, FSA offices,
banks, warehouses, gins, cooperatives, marketing associations, and
accountants. You must assist in obtaining all records we or any employee
of USDA authorized to investigate or review any matter relating to crop
insurance request from third parties.
(e) Failure to provide access to the insured crop or the farm,
authorize access to the records maintained by third parties or assist in
obtaining such records will result in a determination that no indemnity
is due for the crop year in which such failure occurred.
(f) Failure to maintain or provide records will result in:
(1) The imposition of an assigned yield in accordance with section
3(f)(1) and 7 CFR part 400, subpart G for those crop years for which you
do not have the required production records to support a certified
yield;
(2) A determination that no indemnity is due if you fail to provide
records necessary to determine your loss;
(3) Combination of the optional units into the applicable basic
unit;
(4) Assignment of production to the units by us if you fail to
maintain separate records:
(i) For your basic units; or
(ii) For any uninsurable acreage; and
(5) The imposition of consequences specified in section 6(g), as
applicable.
(g) If the imposition of an assigned yield under section 21(f)(1)
would affect an indemnity, prevented planting payment or replant payment
that was paid in a prior crop year, such claim will be adjusted and you
will be required to repay any overpaid amounts.
22. Other Insurance
(a) Other Like Insurance--Nothing in this section prevents you from
obtaining other insurance not authorized under the Act. However, unless
specifically required by policy provisions, you must not obtain any
other crop insurance authorized under the Act on your share of the
insured crop. If you cannot demonstrate that you did not intend to have
more than one policy in effect, you may be subject to the consequences
authorized under this policy, the Act, or any other applicable statute.
If you can demonstrate that you did not intend to have more than one
policy in effect (For example, an application to transfer your policy or
written notification to an insurance provider that states
[[Page 158]]
you want to purchase, or transfer, insurance and you want any other
policies for the crop canceled would demonstrate you did not intend to
have duplicate policies), and:
(1) One is an additional coverage policy and the other is a
Catastrophic Risk Protection policy:
(i) The additional coverage policy will apply if both policies are
with the same insurance provider or, if not, both insurance providers
agree; or
(ii) The policy with the earliest date of application will be in
force if both insurance providers do not agree; or
(2) Both are additional coverage policies or both are Catastrophic
Risk Protection policies, the policy with the earliest date of
application will be in force and the other policy will be void, unless
both policies are with:
(i) The same insurance provider and the insurance provider agrees
otherwise; or
(ii) Different insurance providers and both insurance providers
agree otherwise.
(b) Other Insurance Against Fire. If you have other insurance,
whether valid or not, against damage to the insured crop by fire during
the insurance period, and you have not excluded coverage for fire from
this policy, we will be liable for loss due to fire caused by a
naturally occurring event only for the smaller of:
(1) The amount of indemnity determined pursuant to this policy
without regard to such other insurance; or
(2) The amount by which the loss from fire is determined to exceed
the indemnity paid or payable under such other insurance.
(c) For the purpose of section 22(b), the amount of loss from fire
will be the difference between the total value of the insured crop
before the fire and the total value of the insured crop after the fire.
This amount will be determined in accordance with the provisions in
section 35.
23. Conformity to Food Security Act
Although your violation of a number of federal statutes, including
the Act, may cause cancellation, termination, or voidance of your
insurance contract, you should be specifically aware that your policy
will be canceled if you are determined to be ineligible to receive
benefits under the Act due to violation of the controlled substance
provisions (title XVII) of the Food Security Act of 1985 (Pub. L. 99-
198) and the regulations promulgated under the Act by USDA. Your
insurance policy will be canceled if you are determined, by the
appropriate Agency, to be in violation of these provisions. We will
recover any and all monies paid to you or received by you during your
period of ineligibility, and your premium will be refunded, less an
amount for expenses and handling equal to 20 percent of the premium paid
or to be paid by you.
For FCIC policies
24. Amounts Due Us
(a) Any amount illegally or erroneously paid to you or that is owed
to us but is delinquent may be recovered by us through offset by
deducting it from any loan or payment due you under any Act of Congress
or program administered by any United States Government Agency, or by
other collection action.
(b) Interest will accrue at the rate of 1.25 percent simple interest
per calendar month, or any part thereof, on any unpaid premium amount or
administrative fee due us. With respect to any premiums or
administrative fees owed, interest will start to accrue on the first day
of the month following the premium billing date specified in the Special
Provisions.
(c) For the purpose of any other amounts due us, such as repayment
of indemnities found not to have been earned:
(1) Interest will start on the date that notice is issued to you for
the collection of the unearned amount;
(2) Amounts found due under this paragraph will not be charged
interest if payment is made within 30 days of issuance of the notice by
us;
(3) The amount will be considered delinquent if not paid within 30
days of the date the notice is issued by us;
(4) Penalties and interest will be charged in accordance with 31
U.S.C. 3717 and 4 CFR part 102; and
(5) The penalty for accounts more than 90 days delinquent is an
additional 6 percent per annum.
(d) Interest on any amount due us found to have been received by you
because of fraud, misrepresentation or presentation by you of a false
claim will start on the date you received the amount with the additional
6 percent penalty beginning on the 31st day after the notice of amount
due is issued to you. This interest is in addition to any other amount
found to be due under any other federal criminal or civil statute.
If we determine that it is necessary to contract with a collection
agency, refer the debt to government collection centers, the Department
of Treasury Offset Program, or to employ an attorney to assist in
collection, you agree to pay all the expenses of collection.
(f) All amounts paid will be applied first to expenses of collection
if any, second to the reduction of any penalties which may have been
assessed, then to reduction of accrued interest, and finally to
reduction of the principal balance.
[[Page 159]]
For reinsured policies
24. Amounts Due Us
(a) Interest will accrue at the rate of 1.25 percent simple interest
per calendar month, or any portion thereof, on any unpaid amount owed to
us or on any unpaid administrative fees owed to FCIC. For the purpose of
premium amounts owed to us or administrative fees owed to FCIC, interest
will start to accrue on the first day of the month following the premium
billing date specified in the Special Provisions. We will collect any
unpaid amounts owed to us and any interest owed thereon and, prior to
the termination date, we will collect any administrative fees and
interest owed thereon to FCIC. After the termination date, FCIC will
collect any unpaid administrative fees and any interest owed thereon for
any catastrophic risk protection policy and we will collect any unpaid
administrative fees and any interest owed thereon for additional
coverage policies.
(b) For the purpose of any other amounts due us, such as repayment
of indemnities found not to have been earned, interest will start to
accrue on the date that notice is issued to you for the collection of
the unearned amount. Amounts found due under this paragraph will not be
charged interest if payment is made within 30 days of issuance of the
notice by us. The amount will be considered delinquent if not paid
within 30 days of the date the notice is issued by us.
(c) All amounts paid will be applied first to expenses of collection
(see subsection (d) of this section) if any, second to the reduction of
accrued interest, and then to the reduction of the principal balance.
(d) If we determine that it is necessary to contract with a
collection agency or to employ an attorney to assist in collection, you
agree to pay all of the expenses of collection.
(e) The portion of the amounts owed by you for a policy authorized
under the Act that are owed to FCIC may be collected in part through
administrative offset from payments you receive from United States
government agencies in accordance with 31 U.S.C. chapter 37. Such
amounts include all administrative fees, and the share of the overpaid
indemnities and premiums retained by FCIC plus any interest owed
thereon.
25. [Reserved]
26. Interest Limitations
We will pay simple interest computed on the net indemnity ultimately
found to be due by us or by a final judgment of a court of competent
jurisdiction, from and including the 61st day after the date you sign,
date, and submit to us the properly completed claim on our form.
Interest will be paid only if the reason for our failure to timely pay
is NOT due to your failure to provide information or other material
necessary for the computation or payment of the indemnity. The interest
rate will be that established by the Secretary of the Treasury under
section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) and
published in the Federal Register semiannually on or about January 1 and
July 1 of each year, and may vary with each publication.
27. Concealment, Misrepresentation or Fraud
(a) If you have falsely or fraudulently concealed the fact that you
are ineligible to receive benefits under the Act or if you or anyone
assisting you has intentionally concealed or misrepresented any material
fact relating to this policy:
(1) This policy will be voided; and
(2) You may be subject to remedial sanctions in accordance with 7
CFR part 400, subpart R.
(b) Even though the policy is void, you will still be required to
pay 20 percent of the premium that you would otherwise be required to
pay to offset costs incurred by us in the service of this policy. If
previously paid, the balance of the premium will be returned.
(c) Voidance of this policy will result in you having to reimburse
all indemnities paid for the crop year in which the voidance was
effective.
(d) Voidance will be effective on the first day of the insurance
period for the crop year in which the act occurred and will not affect
the policy for subsequent crop years unless a violation of this section
also occurred in such crop years.
(e) If you willfully and intentionally provide false or inaccurate
information to us or FCIC or you fail to comply with a requirement of
FCIC, in accordance with 7 CFR part 400, subpart R, FCIC may impose on
you:
(1) A civil fine for each violation in an amount not to exceed the
greater of:
(i) The amount of the pecuniary gain obtained as a result of the
false or inaccurate information provided or the noncompliance with a
requirement of FCIC; or
(ii) $10,000; and
(2) A disqualification for a period of up to 5 years from receiving
any monetary or non-monetary benefit provided under each of the
following:
(i) Any crop insurance policy offered under the Act;
(ii) The Farm Security and Rural Investment Act of 2002 (7 U.S.C.
7333 et seq.);
(iii) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.);
(iv) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et
seq.);
(v) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.);
(vi) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et
seq.);
(vii) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921
et seq.); and
[[Page 160]]
(viii) Any federal law that provides assistance to a producer of an
agricultural commodity affected by a crop loss or a decline in the
prices of agricultural commodities.
28. Transfer of Coverage and Right to Indemnity
If you transfer any part of your share during the crop year, you may
transfer your coverage rights, if the transferee is eligible for crop
insurance. We will not be liable for any more than the liability
determined in accordance with your policy that existed before the
transfer occurred. The transfer of coverage rights must be on our form
and will not be effective until approved by us in writing. Both you and
the transferee are jointly and severally liable for the payment of the
premium and administrative fees. The transferee has all rights and
responsibilities under this policy consistent with the transferee's
interest.
29. Assignment of Indemnity
(a) You may assign your right to an indemnity for the crop year only
to creditors or other persons to whom you have a financial debt or other
pecuniary obligation. You may be required to provide proof of the debt
or other pecuniary obligation before we will accept the assignment of
indemnity.
(b) All assignments must be on our form and must be provided to us.
Each assignment form may contain more than one creditor or other person
to whom you have a financial debt or other pecuniary obligation.
(c) Unless you have provided us with a properly executed assignment
of indemnity, we will not make any payment to a lienholder or other
person to whom you have a financial debt or other pecuniary obligation
even if you may have a lien or other assignment recorded elsewhere.
Under no circumstances will we be liable:
(1) To any lienholder or other person to whom you have a financial
debt or other pecuniary obligation where you have failed to include such
lienholder or person on a properly executed assignment of indemnity
provided to us; or
(2) To pay to all lienholders or other persons to whom you have a
financial debt or other pecuniary obligation any amount greater than the
total amount of indemnity owed under the policy.
(d) If we have received the properly executed assignment of
indemnity form:
(1) Only one payment will be issued jointly in the names of all
assignees and you; and
(2) Any assignee will have the right to submit all loss notices and
forms as required by the policy.
(e) If you have suffered a loss from an insurable cause and fail to
file a claim for indemnity within the period specified in section 14(e),
the assignee may submit the claim for indemnity not later than 30 days
after the period for filing a claim has expired. We will honor the terms
of the assignment only if we can accurately determine the amount of the
claim. However, no action will lie against us for failure to do so.
30. [Reserved]
31. Applicability of State and Local Statutes
If the provisions of this policy conflict with statutes of the State
or locality in which this policy is issued, the policy provisions will
prevail. State and local laws and regulations in conflict with federal
statutes, this policy, and the applicable regulations do not apply to
this policy.
32. Descriptive Headings
The descriptive headings of the various policy provisions are
formulated for convenience only and are not intended to affect the
construction or meaning of any of the policy provisions.
33. Notices
(a) All notices required to be given by you must be in writing and
received by your crop insurance agent within the designated time unless
otherwise provided by the notice requirement. Notices required to be
given immediately may be by telephone or in person and confirmed in
writing. Time of the notice will be determined by the time of our
receipt of the written notice. If the date by which you are required to
submit a report or notice falls on Saturday, Sunday, or a Federal
holiday, or if your agent's office is, for any reason, not open for
business on the date you are required to submit such notice or report,
such notice or report must be submitted on the next business day.
(b) All notices and communications required to be sent by us to you
will be mailed to the address contained in your records located with
your crop insurance agent. Notice sent to such address will be
conclusively presumed to have been received by you. You should advise us
immediately of any change of address.
34. Units
(a) You may elect an enterprise unit or whole-farm unit in
accordance with the following:
(1) For crops for which revenue protection is available, you may
elect:
(i) An enterprise unit if you elected revenue protection or yield
protection; or
(ii) A whole-farm unit if you elected:
(A) Revenue protection and revenue protection is provided unless
limited by the Special Provisions; or
(B) Yield protection only if whole-farm units are allowed by the
Special Provisions;
[[Page 161]]
(2) For crops for which revenue protection is not available,
enterprise units or whole-farm units are available only if allowed by
the Special Provisions;
(3) You must make such election on or before the earliest sales
closing date for the insured crops in the unit and report such unit
structure on your acreage report:
(i) For counties in which the actuarial documents specify a fall or
winter sales closing date and a spring sales closing date, you may
change your unit election on or before the spring sales closing date
(earliest spring sales closing date for crops in the unit if electing a
whole-farm unit) if you do not have any insured fall planted acreage of
the insured crop;
(ii) Your unit selection will remain in effect from year to year
unless you notify us in writing by the earliest sales closing date for
the crop year for which you wish to change this election; and
(iii) These units may not be further divided except as specified
herein;
(4) For an enterprise unit:
(i) To qualify, an enterprise unit must contain all of the insurable
acreage of the same insured crop in:
(A) Two or more sections, if sections are the basis for optional
units where the insured acreage is located;
(B) Two or more section equivalents determined in accordance with
FCIC issued procedures, if section equivalents are the basis for
optional units where the insured acreage is located or are applicable to
the insured acreage;
(C) Two or more FSA farm serial numbers, if FSA farm serial numbers
are the basis for optional units where the insured acreage is located;
(D) Any combination of two or more sections, section equivalents, or
FSA farm serial numbers, if more than one of these are the basis for
optional units where the acreage is located or are applicable to the
insured acreage (e.g., if a portion of your acreage is located where
sections are the basis for optional units and another portion of your
acreage is located where FSA farm serial numbers are the basis for
optional units, you may qualify for an enterprise unit based on a
combination of these two parcels);
(E) One section, section equivalent, or FSA farm serial number that
contains at least 660 planted acres of the insured crop. You may qualify
under this paragraph based only on the type of parcel that is utilized
to establish optional units where your insured acreage is located (e.g.,
if having two or more sections is the basis for optional units where the
insured acreage is located, you may qualify for an enterprise unit if
you have at least 660 planted acres of the insured crop in one section);
or
(F) Two or more units established by written agreement; and
(ii) At least two of the sections, section equivalents, FSA farm
serial numbers, or units established by written agreement in section
34(a)(4)(i)(A), (B), (C), (D), or (F) must each have planted acreage
that constitutes at least the lesser of 20 acres or 20 percent of the
insured crop acreage in the enterprise unit. If there is planted acreage
in more than two sections, section equivalents, FSA farm serial numbers
or units established by written agreement in section 34(a)(4)(i)(A),
(B), (C), (D), or (F), these can be aggregated to form at least two
parcels to meet this requirement. For example, if sections are the basis
for optional units where the insured acreage is located and you have 80
planted acres in section one, 10 planted acres in section two, and 10
planted acres in section three, you may aggregate sections two and three
to meet this requirement.
(iii) The crop must be insured under revenue protection or yield
protection, unless otherwise specified in the Special Provisions;
(iv) If you want to change your unit structure from enterprise units
to basic or optional units in any subsequent crop year, you must
maintain separate records of acreage and production:
(A) For each basic unit, to be eligible to use records to establish
the production guarantee for the basic unit; or
(B) For optional units, to qualify for optional units and to be
eligible to use such records to establish the production guarantee for
the optional units;
(v) If you do not comply with the production reporting provisions in
section 3(f) for the enterprise unit, your yield for the enterprise unit
will be determined in accordance with section 3(f)(1);
(vi) You must separately designate on the acreage report each
section or other basis in section 34(a)(4)(i) you used to qualify for an
enterprise unit; and
(vii) If we discover you do not qualify for an enterprise unit and
such discovery is made:
(A) On or before the acreage reporting date, your unit division will
be based on the basic or optional units, whichever you report on your
acreage report and qualify for; or
(B) At any time after the acreage reporting date, we will assign the
basic unit structure; and
(5) For a whole-farm unit:
(i) To qualify:
(A) All crops in the whole-farm unit must be insured:
(1) Under revenue protection (if you elected the harvest price
exclusion for any crop, you must elect it for all crops in the whole-
farm unit), unless the Special Provisions allow whole-farm units for
another plan of insurance and you insure all crops in the whole-farm
unit under such plan (e.g., if you plant corn and soybeans for which you
have elected revenue protection and you plant
[[Page 162]]
canola for which you have elected yield protection, the corn, soybeans
and canola would be assigned the unit structure in accordance with
section 34(a)(5)(v));
(2) With us (e.g., if you insure your corn and canola with us and
your soybeans with a different insurance provider, the corn, soybeans
and canola would be assigned the unit structure in accordance with
section 34(a)(5)(v)); and
(3) At the same coverage level (e.g., if you elect to insure your
corn and canola at the 65 percent coverage level and your soybeans at
the 75 percent coverage level, the corn, soybeans and canola would be
assigned the unit structure in accordance with section 34(a)(5)(v));
(B) A whole-farm unit must contain all of the insurable acreage of
at least two crops; and
(C) At least two of the insured crops must each have planted acreage
that constitutes 10 percent or more of the total planted acreage
liability of all insured crops in the whole-farm unit (For crops for
which revenue protection is available, liability will be based on the
applicable projected price only for the purpose of section
34(a)(5)(i)(C));
(ii) You will be required to pay separate administrative fees for
each crop included in the whole-farm unit;
(iii) You must separately designate on the acreage report each basic
unit for each crop in the whole-farm unit;
(iv) If you want to change your unit structure from a whole-farm
unit to basic or optional units in any subsequent crop year, you must
maintain separate records of acreage and production:
(A) For each basic unit, to be eligible to use such records to
establish the production guarantee for the basic units; or
(B) For optional units, to qualify for optional units and to be
eligible to use such records to establish the production guarantee for
the optional units; and
(v) If we discover you do not qualify for a whole-farm unit for at
least one insured crop because, even though you elected revenue
protection for all your crops:
(A) You do not meet all of the other requirements in section
34(a)(5)(i), and such discovery is made:
(1) On or before the acreage reporting date, your unit division for
all crops for which you elected a whole-farm unit will be based on basic
or optional units, whichever you report on your acreage report and
qualify for; or
(2) At any time after the acreage reporting date, we will assign the
basic unit structure for all crops for which you elected a whole-farm
unit; or
(B) It was not possible to establish a projected price for at least
one of your crops, your unit division will be based on the unit
structure you report on your acreage report and qualify for only for the
crop for which a projected price could not be established, unless the
remaining crops in the unit would no longer qualify for a whole-farm
unit, in such case your unit division for the remaining crops will be
based on the unit structure you report on your acreage report and
qualify for.
(b) Unless limited by the Crop Provisions or Special Provisions, a
basic unit as defined in section 1 of the Basic Provisions may be
divided into optional units if, for each optional unit, you meet the
following:
(1) You must plant the crop in a manner that results in a clear and
discernible break in the planting pattern at the boundaries of each
optional unit;
(2) All optional units you select for the crop year are identified
on the acreage report for that crop year (Units will be determined when
the acreage is reported but may be adjusted or combined to reflect the
actual unit structure when adjusting a loss. No further unit division
may be made after the acreage reporting date for any reason);
(3) You have records, that are acceptable to us, for at least the
previous crop year for all optional units that you will report in the
current crop year (You may be required to produce the records for all
optional units for the previous crop year); and
(4) You have records of marketed or stored production from each
optional unit maintained in such a manner that permits us to verify the
production from each optional unit, or the production from each optional
unit is kept separate until loss adjustment is completed by us.
(c) Each optional unit must meet one or more of the following,
unless otherwise specified in the Crop Provisions or allowed by written
agreement:
(1) Optional units may be established if each optional unit is
located in a separate section where the boundaries are readily
discernible:
(i) In the absence of sections, we may consider parcels of land
legally identified by other methods of measure, such as Spanish grants,
provided the boundaries are readily discernible, if such parcels can be
considered as the equivalent of sections for unit purposes in accordance
with FCIC issued procedures; or
(ii) In the absence of sections as described in section 34(c)(1) or
other methods of measure used to establish section equivalents as
described in section 34(c)(1)(i), optional units may be established if
each optional unit is located in a separate FSA farm serial number in
accordance with FCIC issued procedure;
(2) In addition to, or instead of, establishing optional units by
section, section equivalent or FSA farm serial number, optional units
may be based on irrigated and non-irrigated acreage. To qualify as
separate irrigated and non-irrigated optional units,
[[Page 163]]
the non-irrigated acreage may not continue into the irrigated acreage in
the same rows or planting pattern. The irrigated acreage may not extend
beyond the point at which the irrigation system can deliver the quantity
of water needed to produce the yield on which the guarantee is based,
except the corners of a field in which a center-pivot irrigation system
is used may be considered as irrigated acreage if the corners of a field
in which a center-pivot irrigation system is used do not qualify as a
separate non-irrigated optional unit. In this case, production from both
practices will be used to determine your approved yield; and
(3) In addition to, or instead of, establishing optional units by
section, section equivalent or FSA farm serial number, or irrigated and
non-irrigated acreage, separate optional units may be established for
acreage of the insured crop grown and insured under an organic farming
practice. Certified organic, transitional and buffer zone acreages do
not individually qualify as separate units. (See section 37 for
additional provisions regarding acreage insured under an organic farming
practice).
(d) Optional units are not available for crops insured under a
Catastrophic Risk Protection Endorsement.
(e) If you do not comply fully with the provisions in this section,
we will combine all optional units that are not in compliance with these
provisions into the basic unit from which they were formed. We will
combine the optional units at any time we discover that you have failed
to comply with these provisions. If failure to comply with these
provisions is determined by us to be inadvertent, and the optional units
are combined into a basic unit, that portion of the additional premium
paid for the optional units that have been combined will be refunded to
you for the units combined.
35. Multiple Benefits
(a) If you are eligible to receive an indemnity and are also
eligible to receive benefits for the same loss under any other USDA
program, you may receive benefits under both programs, unless
specifically limited by the crop insurance contract or by law.
(b) Any amount received for the same loss from any USDA program, in
addition to the crop insurance payment, will not exceed the difference
between the crop insurance payment and the actual amount of the loss,
unless otherwise provided by law. The amount of the actual loss is the
difference between the total value of the insured crop before the loss
and the total value of the insured crop after the loss.
(1) For crops for which revenue protection is not available:
(i) If you have an approved yield, the total value of the crop
before the loss is your approved yield times the highest price election
for the crop; and
(ii) If you have an approved yield, the total value of the crop
after the loss is your production to count times the highest price
election for the crop; or
(iii) If you have an amount of insurance, the total value of the
crop before the loss is the highest amount of insurance available for
the crop; and
(iv) If you have an amount of insurance, the total value of the crop
after the loss is your production to count times the price contained in
the Crop Provisions for valuing production to count.
(2) For crops for which revenue protection is available and:
(i) You elect yield protection:
(A) The total value of the crop before the loss is your approved
yield times the applicable projected price (at the 100 percent price
level) for the crop; and
(B) The total value of the crop after the loss is your production to
count times the applicable projected price (at the 100 percent price
level) for the crop; or
(ii) You elect revenue protection:
(A) The total value of the crop before the loss is your approved
yield times the higher of the applicable projected price or harvest
price for the crop (If you have elected the harvest price exclusion, the
applicable projected price for the crop will be used); and
(B) The total value of the crop after the loss is your production to
count times the harvest price for the crop.
(c) FSA or another USDA agency, as applicable, will determine and
pay the additional amount due you for any applicable USDA program, after
first considering the amount of any crop insurance indemnity.
36. Substitution of Yields.
(a) When you have actual yields in your production history database
that, due to an insurable cause of loss, are less than 60 percent of the
applicable transitional yield you may elect, on an individual actual
yield basis, to exclude and replace one or more of any such yields
within each database.
(b) Each election made in section 36(a) must be made on or before
the production reporting date for the insured crop and each such
election will remain in effect for succeeding years unless canceled by
the production reporting date for the succeeding crop year. If you
cancel an election, the actual yield will be used in the database. For
example, if you elected to substitute yields in your database for the
1998 and 2000 crop year, for any subsequent crop year, you can elect to
cancel the substitution for either or both years.
(c) Each excluded actual yield will be replaced with a yield equal
to 60 percent of the applicable transitional yield for the crop year in
which the yield is being replaced (For
[[Page 164]]
example, if you elect to exclude a 2001 crop year actual yield, the
transitional yield in effect for the 2001 crop year in the county will
be used. If you also elect to exclude a 2002 crop year actual yield, the
transitional yield in effect for the 2002 crop year in the county will
be used). The replacement yields will be used in the same manner as
actual yields for the purpose of calculating the approved yield.
(d) Once you have elected to exclude an actual yield from the
database, the replacement yield will remain in effect until such time as
that crop year is no longer included in the database unless this
election is canceled in accordance with section 36(b).
(e) Although your approved yield will be used to determine your
amount of premium owed, the premium rate will be increased to cover the
additional risk associated with the substitution of higher yields.
37. Organic Farming Practices.
(a) In accordance with section 8(b)(2), insurance will not be
provided for any crop grown using an organic farming practice, unless
the information needed to determine a premium rate for an organic
farming practice is specified on the actuarial table, or insurance is
allowed by a written agreement.
(b) If insurance is provided for an organic farming practice as
specified in section 37(a), only the following acreage will be insured
under such practice:
(1) Certified organic acreage;
(2) Transitional acreage being converted to certified organic
acreage in accordance with an organic plan; and
(3) Buffer zone acreage.
(c) On the date you report your acreage, you must have:
(1) For certified organic acreage, a written certification in effect
from a certifying agent indicating the name of the entity certified,
effective date of certification, certificate number, types of
commodities certified, and name and address of the certifying agent (A
certificate issued to a tenant may be used to qualify a landlord or
other similar arrangement);
(2) For transitional acreage, a certificate as described in section
37(c)(1), or written documentation from a certifying agent indicating an
organic plan is in effect for the acreage; and
(3) Records from the certifying agent showing the specific location
of each field of certified organic, transitional, buffer zone, and
acreage not maintained under organic management.
(d) If you claim a loss on any acreage insured under an organic
farming practice, you must provide us with copies of the records
required in section 37(c).
(e) If any acreage qualifies as certified organic or transitional
acreage on the date you report such acreage, and such certification is
subsequently revoked by the certifying agent, or the certifying agent no
longer considers the acreage as transitional acreage for the remainder
of the crop year, that acreage will remain insured under the reported
practice for which it qualified at the time the acreage was reported.
Any loss due to failure to comply with organic standards will be
considered an uninsured cause of loss.
(f) Contamination by application or drift of prohibited substances
onto land on which crops are grown using organic farming practices will
not be an insured peril on any certified organic, transitional or buffer
zone acreage.
(g) In addition to the provisions contained in section 17(f),
prevented planting coverage will not be provided for any acreage based
on an organic farming practice in excess of the number of acres that
will be grown under an organic farming practice and shown as such in the
records required in section 37(c).
(h) In lieu of the provisions contained in section 17(f)(1) that
specify prevented planting acreage within a field that contains planted
acreage will be considered to be acreage of the same practice that is
planted in the field, prevented planting acreage will be considered as
organic practice acreage if it is identified as certified organic,
transitional, or buffer zone acreage in the organic plan.
[56 FR 1351, Jan. 14, 1991]
Editorial Note: For Federal Register citations affecting Sec. 457.8,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.fdsys.gov.
Sec. 457.9 Appropriation contingency.
Notwithstanding the cancellation date stated in the policy, if there
are insufficient funds appropriated by the Congress to deliver the crop
insurance program, the policy will automatically terminate without
liability.
[59 FR 45972, Sept. 6, 1994]
Sec. Sec. 457.10-457.100 [Reserved]
Sec. 457.101 Small grains crop insurance.
The small grains crop insurance provisions for the 2011 and
succeeding crop years are as follows:
United States Department of Agriculture
Federal Crop Insurance Corporation
Small Grains Crop Provisions
1. Definitions
Adequate stand. A population of live plants per unit of acreage
which will produce at
[[Page 165]]
least the yield used to establish your production guarantee.
Harvest. Combining or threshing the insured crop for grain or
cutting for hay or silage on any acreage. A crop which is swathed prior
to combining is not considered harvested.
Initially planted. The first occurrence of planting the insured crop
on insurable acreage for the crop year.
Khorasan. The common name for a variety of wheat (Triticum
turanicum) that is marketed under trademarks such as Kamut. Khorasan is
considered to be spring wheat for the purposes of this policy.
Latest final planting date--
(1) The final planting date for spring-planted acreage in all
counties for which the Special Provisions designate a final planting
date for spring-planted acreage only;
(2) The final planting date for fall-planted acreage in all counties
for which the Special Provisions designate a final planting date for
fall-planted acreage only; or
(3) The final planting date for spring-planted acreage in all
counties for which the Special Provisions designate final planting dates
for both spring-planted and fall-planted acreage.
Local market price. The cash grain price per bushel for the
applicable quality level indicated below and offered by buyers in the
area in which you normally market the insured crop. The local market
price will reflect the maximum limits of quality deficiencies allowable
for the applicable quality level indicated below. Factors not associated
with the specified quality levels, including but not limited to protein,
oil or moisture content, or milling quality will not be considered.
(1) U.S. No. 2 for Wheat (subclass hard amber durum for durum wheat
and subclass northern spring for hard red spring wheat), except
Khorasan; barley (including hull-less barley); oats (including hull-less
oats); rye; and flax.
(2) The quality factor levels required for durum wheat to grade U.S.
No. 2 for Khorasan.
(3) No. 2 grade buckwheat determined in accordance with the
applicable state grading standards.
Nurse crop (companion crop). A crop planted into the same acreage as
another crop, that is intended to be harvested separately, and which is
planted to improve growing conditions for the crop with which it is
grown.
Planted acreage. In addition to the definition contained in the
Basic Provisions, except for flax, land on which seed is initially
spread onto the soil surface by any method and subsequently is
mechanically incorporated into the soil in a timely manner and at the
proper depth will be considered planted. Flax seed must initially be
planted in rows to be considered planted, unless otherwise provided by
the Special Provisions, actuarial documents, or by written agreement.
Prevented planting. As defined in the Basic Provisions, except that
the references to ``final planting date'' contained in the definition in
the Basic Provisions are replaced with the ``latest final planting
date.''
Small grains. Wheat, including only common wheat (Triticum
aestivum), club wheat (T. compactum), durum wheat (T. durum) and
Khorasan (T. turanicum); barley (Hordeum vulgare), including hull-less
barley and excluding black barley; oats (Avena sativa, and A.
byzantina), and hull-less oats (A. Nuda); rye (Secale cereale); flax
(Linum usitatissimum); and buckwheat (Fagopyrum esculentum).
Swathed-- Severance of the stem and grain head from the ground
without removal of the seed from the head and placing into a windrow.
2. Unit Division
In addition to the requirements of section 34(b) of the Basic
Provisions, for wheat only, in addition to, or instead of, establishing
optional units by section, section equivalent or FSA farm serial number
and by irrigated and non-irrigated practices, optional units may be
established if each optional unit contains only initially planted winter
wheat, only initially planted spring wheat, only initially planted club
wheat or only initially planted durum wheat. Separate optional units for
initially planted winter wheat and initially planted spring wheat may be
established only in counties having both winter and spring type final
planting dates as designated in the Special Provisions. A separate
optional unit for club wheat may be established only in counties for
which the Special Provisions designate club wheat as a wheat type
(separate optional units may be established for initially planted winter
club and initially planted spring club wheat if the Special Provisions
specify both as wheat types). A separate optional unit for durum wheat
may be established only in counties for which the Special Provisions
designate durum wheat as a separate wheat type (separate optional units
may be established for initially planted winter durum wheat and
initially planted spring durum wheat if the Special Provisions specify
both as wheat types).
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) Revenue protection is not available for your oats, rye, flax, or
buckwheat. Therefore, if you elect to insure such crops by the sales
closing date, they will only be protected against a loss in yield;
[[Page 166]]
(b) Revenue protection is available for wheat and barley. Therefore,
if you elect to insure your wheat or barley:
(1) You must elect to insure your wheat or barley with either
revenue protection or yield protection by the sales closing date; and
(2) In counties with both fall and spring sales closing dates for
the insured crop:
(i) If you do not have any insured fall planted acreage of the
insured crop, you may change your coverage level, or your percentage of
projected price (if you have yield protection), or elect revenue
protection or yield protection, until the spring sales closing date; or
(ii) If you have any insured fall planted acreage of the insured
crop, you may not change your coverage level, or your percentage of
projected price (if you have yield protection), or elect revenue
protection or yield protection, after the fall sales closing date
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date for counties
with a March 15 cancellation date and June 30 preceding the cancellation
date for all other counties.
5. Cancellation and Termination Dates
The cancellation and termination dates are as follows, unless
otherwise specified in the Special Provisions:
----------------------------------------------------------------------------------------------------------------
Crop, state and county Cancellation date Termination date
----------------------------------------------------------------------------------------------------------------
Wheat:
All Colorado counties except September 30........................ September 30.
Alamosa, Archuleta, Conejos,
Costilla, Custer, Delta, Dolores,
Eagle, Garfield, Grand, La Plata,
Mesa, Moffat, Montezuma, Montrose,
Ouray, Pitkin, Rio Blanco, Rio
Grande, Routt, Saguache, and San
Miguel; all Iowa counties except
Plymouth, Cherokee, Buena Vista,
Pocahontas, Humboldt, Wright,
Franklin, Butler, Black Hawk,
Buchanan, Delaware, Dubuque and all
Iowa counties north thereof; all
Nebraska counties except Box Butte,
Dawes, and Sheridan; all Wisconsin
counties except Buffalo,
Trempealeau, Jackson, Wood,
Portage, Waupaca, Outagamie, Brown,
Kewaunee and all Wisconsin counties
north thereof; all other States
except Alaska, Arizona, California,
Connecticut, Idaho, Maine,
Massachusetts, Minnesota, Montana,
Nevada, New Hampshire, New York,
North Dakota, Oregon, Rhode Island,
South Dakota, Utah, Vermont,
Washington, and Wyoming.
Del Norte, Humboldt, Lassen, Modoc, September 30........................ November 30.
Plumas, Shasta, Siskiyou and
Trinity Counties, California;
Archuleta, Custer, Delta, Dolores,
Eagle, Garfield, Grand, La Plata,
Mesa, Moffat, Montezuma, Montrose,
Ouray, Pitkin, Rio Blanco, Routt,
and San Miguel Counties, Colorado;
Connecticut; Idaho; Plymouth,
Cherokee, Buena Vista, Pocahontas,
Humboldt, Wright, Franklin, Butler,
Black Hawk, Buchanan, Delaware, and
Dubuque Counties, Iowa, and all
Iowa counties north thereof;
Massachusetts; all Montana counties
except Daniels, Roosevelt,
Sheridan, and Valley; Box Butte,
Dawes, and Sheridan Counties,
Nebraska; New York; Oregon; Rhode
Island; all South Dakota counties
except Corson, Walworth, Edmunds,
Faulk, Spink, Beadle, Kingsbury,
Miner, McCook, Minnehaha and all
South Dakota counties north and
east thereof; Washington; Buffalo,
Trempealeau, Jackson, Wood,
Portage, Waupaca, Outagamie, Brown
and Kewaunee Counties, Wisconsin,
and all Wisconsin counties north
thereof; and all Wyoming counties
except Big Horn, Fremont, Hot
Springs, Park, and Washakie.
Arizona; all California counties October 31.......................... November 30.
except Del Norte, Humboldt, Lassen,
Modoc, Plumas, Shasta, Siskiyou and
Trinity; Nevada; and Utah.
Alaska; Alamosa, Conejos, Costilla, March 15............................ March 15.
Rio Grande, and Saguache Counties,
Colorado; Maine; Minnesota;
Daniels, Roosevelt, Sheridan, and
Valley Counties, Montana; New
Hampshire; North Dakota; Corson,
Walworth, Edmunds, Faulk, Spink,
Beadle, Kingsbury, Miner, McCook,
and Minnehaha Counties, South
Dakota, and all South Dakota
counties north and east thereof;
Vermont; and Big Horn, Fremont, Hot
Springs, Park, and Washakie
Counties, Wyoming.
Barley:
All New Mexico counties except Taos; September 30........................ September 30.
Texas, Oklahoma, Missouri,
Illinois, Indiana, Ohio,
Pennsylvania, New Jersey and all
states south and east thereof.
[[Page 167]]
Kit Carson, Lincoln, Elbert, El September 30........................ November 30.
Paso, Pueblo and Las Animas
Counties, Colorado, and all
Colorado counties south and east
thereof; Connecticut; Kansas;
Massachusetts; New York; and Rhode
Island.
Arizona; all California counties October 31.......................... November 30.
except Del Norte, Humboldt, Lassen,
Modoc, Plumas, Shasta, Siskiyou and
Trinity; Clark, Humboldt, Nye and
Pershing Counties, Nevada; and Box
Elder, Millard and Utah Counties,
Utah.
Del Norte, Humboldt, Lassen, Modoc, March 15............................ March 15.
Plumas, Shasta, Siskiyou and
Trinity Counties, California; All
Colorado counties except Kit
Carson, Lincoln, Elbert, El Paso,
Pueblo and Las Animas, and all
Colorado counties south and east
thereof; all Nevada counties except
Clark, Humboldt, Nye and Pershing;
Taos County, New Mexico; all Utah
counties except Box Elder, Millard
and Utah; and all other states
except Arizona, and (except) Texas,
Oklahoma, Missouri, Illinois,
Indiana, Ohio, Pennsylvania, New
Jersey and all states south and
east thereof.
Oats:
Alabama; Arkansas; Florida; Georgia; September 30........................ September 30.
Louisiana; Mississippi; All New
Mexico counties except Taos County;
North Carolina; Oklahoma; South
Carolina; Tennessee; Texas; and
Patrick, Franklin, Pittsylvania,
Campbell, Appomattox, Fluvanna,
Buckingham, Louisa, Spotsylvania,
Caroline, Essex, and Westmoreland
Counties, Virginia, and all
Virginia counties east thereof.
Arizona; All California counties October 31.......................... October 31.
except Del Norte, Humboldt, Lassen,
Modoc, Plumas, Shasta, Siskiyou and
Trinity.
Del Norte, Humbolt, Lassen, Modoc, March 15............................ March 15.
Plumas, Shasta, Siskiyou, and
Trinity Counties, California; Taos
County, New Mexico; all Virginia
counties except Patrick, Franklin,
Pittsylvania, Campbell, Attomattox,
Fluvanna, Buckingham, Louisa,
Spotsylvania, Caroline, Essex, and
Westmoreland, and all Virginia
counties east thereof; and all
other states except Alabama,
Arizona, Arkansas, Florida,
Georgia, Louisiana, Mississippi,
North Carolina, Oklahoma, South
Carolina, Tennessee, and Texas.
Rye:
All states.......................... September 30........................ September 30.
Flax:
All states.......................... March 15............................ March 15.
Buckwheat:
All states.......................... March 15............................ March 15.
----------------------------------------------------------------------------------------------------------------
6. Insured Crop
(a) The crop insured will be each small grain you elect to insure,
that is grown in the county on insurable acreage, and for which premium
rates are provided by the actuarial documents:
(1) In which you have a share;
(2) That is planted for harvest as grain (a grain mixture in which
barley or oats is the predominate grain may also be insured if allowed
by the Barley or Oat Special Provisions, or if a written agreement
allows insurance for such mixture. The production from such mixture will
be considered as the predominate grain on a weight basis); and
(3) That is not, unless insurance is allowed by a written agreement:
(i) Interplanted with another crop except as allowed in section
6(a)(2);
(ii) Planted into an established grass or legume; or
(iii) Planted as a nurse crop, unless planted as a nurse crop for
new forage seeding, but only if seeded at a normal rate and intended for
harvest as grain.
(b) Buckwheat will be insured only if it is produced under a
contract with a business enterprise equipped with facilities appropriate
to handle and store buckwheat production. The contract must be executed
by you and the business enterprise, in effect for the crop year, and a
copy provided to us no later than the acreage reporting date. To be
considered a contract, the executed document must contain:
(1) A requirement that you plant, grow and deliver buckwheat to the
business enterprise;
(2) The amount of production that will be accepted or a statement
that all production from a specified number of acres will be accepted;
(3) The price to be paid for the contracted production or a method
to determine such price; and
(4) Other such terms that establish the obligations of each party to
the contract.
(c) If you anticipate destroying any acreage prior to harvest you:
[[Page 168]]
(1) May report all planted acreage when you report your acreage for
the crop year and specify any acreage to be destroyed as uninsurable
acreage (By doing so, no coverage will be considered to have attached on
the specified acreage and no premium will be due for such acreage. If
you do not destroy such acreage, you will be subject to the under-
reporting provisions contained in section 6 of the Basic Provisions); or
(2) May report all planted acreage as insurable when you report your
acreage for the crop year. Premium will be due on all the acreage except
as set forth herein. If the Special Provisions allow a reduced premium
amount for acreage intentionally destroyed prior to harvest, you may
qualify for such reduction only if you notify us in writing on or before
the date designated in the Special Provisions of the intended
destruction, and do not claim an indemnity on the acreage. No premium
reduction will be allowed if the required notice is not given or if you
claim an indemnity for the acreage. Upon receiving timely notice,
insurance coverage on the acreage you do not intend to harvest will
cease and we will revise your acreage report to indicate the applicable
reduction in premium. If you do not destroy the crop as intended, you
will be subject to the under-reporting provisions contained in section 6
of the Basic Provisions.
(d) In counties for which the actuarial table provides premium rates
for the Wheat or Barley Winter Coverage Endorsement (7 CFR 457.102),
coverage is available for wheat or barley damaged between the time
coverage begins and the spring final planting date. Coverage under the
endorsement is effective only if you qualify under the terms of the
endorsement and you execute the endorsement by the sales closing date.
(e) In counties for which the actuarial table provides premium rates
for malting barley coverage, an endorsement is available (7 CFR 457.118)
that provides additional insurance protection for malting barley. This
endorsement provides coverage for producers who grow malting barley
under contract and for those who do not have a contract. Coverage under
the endorsement is effective only if you qualify under the terms of the
endorsement and you execute the endorsement by the sales closing date.
7. Insurance Period
In accordance with section 11 of the Basic Provisions, and subject
to any provisions provided by the Wheat or Barley Winter Coverage
Endorsement (if elected by you):
(a) Insurance attaches on each unit or part thereof on the later of
the date we accept your application or the date the insured crop is
planted.
(1) For oats, rye, flax and buckwheat, the following limitations
apply:
(i) The acreage must be planted on or before the final planting date
designated in the Special Provisions for the insured crop except as
allowed in section 12 of these Crop Provisions and section 16 of the
Basic Provisions.
(ii) Any acreage of the insured crop damaged before the final
planting date, to the extent that producers in the surrounding area
would not normally further care for the crop, must be replanted unless
we agree that it is not practical to replant.
(2) For barley and wheat, the following limitations apply:
(i) The acreage must be planted on or before the final planting date
designated in the Special Provisions for the type (winter or spring)
except as allowed in section 12 of these Crop Provisions and section 16
of the Basic Provisions.
(ii) Whenever the Special Provisions designate only a fall final
planting date, any acreage of winter barley or wheat damaged before such
final planting date, to the extent that growers in the area would
normally not further care for the crop, must be replanted to a winter
type of the insured crop unless we agree that replanting is not
practical.
(iii) Whenever the Special Provisions designate both fall and spring
final planting dates:
(A) Any winter barley or winter wheat that is damaged before the
spring final planting date, to the extent that growers in the area would
normally not further care for the crop, must be replanted to a winter
type of the insured crop to maintain insurance based on the winter type
unless we agree that replanting is not practical. If it is not practical
to replant to the winter type of wheat or barley but is practical to
replant to a spring type, you must replant to a spring type to keep your
insurance based on the winter type in force.
(B) Any winter barley or winter wheat acreage that is replanted to a
spring type of the same crop when it was practical to replant the winter
type will be insured as the spring type and the production guarantee,
premium, projected price, and harvest price applicable to the spring
type will be used. In this case, the acreage will be considered to be
initially planted to the spring type.
(C) Notwithstanding sections 7(a)(2)(iii)(A) and (B), if you have
elected coverage under a barley or wheat winter coverage endorsement (if
available in the county), insurance will be in accordance with the
endorsement.
(iv) Whenever the Special Provisions designate a spring final
planting date, any acreage of spring barley or wheat damaged before such
final planting date, to the extent that growers in the area would
normally not further care for the crop, must be replanted to a spring
type of the insured crop unless we agree that replanting is not
practical.
[[Page 169]]
(v) Whenever the Special Provisions designate only a spring final
planting date, any acreage of fall planted barley or fall planted wheat
is not insured unless you request such coverage on or before the spring
sales closing date, and we determine, in writing, that the acreage has
an adequate stand in the spring to produce the yield used to determine
your production guarantee. However, if we fail to inspect the acreage by
the spring final planting date, insurance will attach as specified in
section 7(a)(2)(v)(C).
(A) Your request for coverage must include the location and number
of acres of fall planted barley or wheat.
(B) The fall planted barley or fall planted wheat will be insured as
a spring type for the purpose of the production guarantee, premium,
projected price, and harvest price, if applicable.
(C) Insurance will attach to such acreage on the date we determine
an adequate stand exists or on the spring final planting date if we do
not determine adequacy of the stand by the spring final planting date.
(D) Any acreage of such fall planted barley or fall planted wheat
that is damaged after it is accepted for insurance but before the spring
final planting date, to the extent that growers in the area would
normally not further care for the crop, must be replanted to a spring
type of the insured crop unless we agree it is not practical to replant.
(E) If fall planted acreage is not to be insured it must be recorded
on the acreage report as uninsured fall planted acreage.
(b) The calendar date for the end of the insurance period is the
following applicable date:
(1) September 25 in Alaska;
(2) July 31 in Alabama, Arizona, Arkansas, Connecticut, Delaware,
Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, New
Jersey, North Carolina, South Carolina and Tennessee; or
(3) October 31 in all other states.
8. Causes of Loss
In addition to the provisions under section 12 of the Basic
Provisions, any loss covered by this policy must occur within the
insurance period.
The specific causes of loss for small grains are:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage allowed because of insufficient or
improper application of pest control measures;
(d) Plant disease, but not damage allowed because of insufficient or
improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss
specified in sections 8(a) through (g) that also occurs during the
insurance period; or
(i) For revenue protection, a change in the harvest price from the
projected price, unless FCIC can prove the price change was the direct
result of an uninsured cause of loss specified in section 12(a) of the
Basic Provisions.
9. Replanting Payments
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that
limit the amount of a replant payment to the actual cost of replanting,
the amount of any replanting payment will be determined in accordance
with these crop provisions;
(2) You must comply with all requirements regarding replanting
payments contained in section 13 of the Basic Provisions (except as
allowed in section 9(a)(1)) and in any winter coverage endorsement for
which you are eligible and which you have elected;
(3) The insured crop must be damaged by an insurable cause of loss
to the extent that the remaining stand will not produce at least 90
percent of the production guarantee for the acreage;
(4) The acreage must have been initially planted to a spring type of
the insured crop in those counties with only a spring final planting
date;
(5) Damage must occur after the fall final planting date in those
counties where both a fall and spring final planting date are designated
(If the Special Provisions provide more than one fall final planting
date, the fall final planting date applicable to policies with the Wheat
or Barley Winter Coverage Endorsement will be used for this purpose,
regardless of whether or not the endorsement is actually in effect.);
and
(6) The replanted crop must be seeded at a rate sufficient to
achieve a total (undamaged and new seeding) plant population that is
considered appropriate by agricultural experts for the insured crop,
type and practice.
(b) No replanting payment will be made for acreage initially planted
to a winter type of the insured crop (including rye) in any county for
which the Special Provisions contain only a fall final planting date
(including final planting dates in December, January and February).
(c) Unless otherwise specified in the Special Provisions, the amount
of the replanting payment per acre will be:
(1) The lesser of 20 percent of the production guarantee or the
number of bushels for the applicable crop specified below:
(i) Two bushels for flax or buckwheat;
(ii) Four bushels for wheat; or
(iii) Five bushels for barley or oats;
(2) Multiplied by:
(i) Your price election for oats, flax or buckwheat; or
[[Page 170]]
(ii) Your projected price for wheat or barley; and
(3) Multiplied by your share.
(d) When the crop is replanted using a practice that is uninsurable
for an original planting, the liability on the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
(e) Replanting payments will be calculated using your price election
or your projected price, as applicable, and your production guarantee
for the crop type that is replanted and insured. For example, if damaged
spring wheat is replanted to durum wheat, your projected price
applicable to durum wheat will be used to calculate any replanting
payment that may be due. A revised acreage report will be required to
reflect the replanted type. Notwithstanding the previous two sentences,
the following will have a replanting payment based on your production
guarantee and your price election or your projected price, as
applicable, for the crop type initially planted:
(1) Any damaged winter crop type that is replanted to a spring crop
type, but that retains insurance based on the winter crop type; and
(2) Any acreage replanted at a reduced seeding rate into a partially
damaged stand of the insured crop.
10. Duties in the Event of Damage or Loss
Representative samples are required in accordance with section 14 of
the Basic Provisions.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production that are acceptable to us
for any:
(1) Optional unit, we will combine all optional units for which
acceptable records of production were not provided; or for any
(2) Basic unit, we will allocate any commingled production to such
units in proportion to our liability on the harvested acreage for each
unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the number of insured acres of each insured crop or
type, as applicable by your respective:
(i) Yield protection guarantee (per acre) if you elected yield
protection for barley or wheat;
(ii) Production guarantee (per acre) and your price election for
oats, rye, flax, or buckwheat; or
(iii) Revenue protection guarantee (per acre) if you elected revenue
protection for barley or wheat;
(2) Totaling the results of section 11(b)(1)(i), (ii), or (iii),
whichever is applicable;
(3) Multiplying the production to count of each insured crop or
type, as applicable, by your respective:
(i) Projected price for wheat or barley if you elected yield
protection;
(ii) Price election for oats, rye, flax, or buckwheat; or
(iii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 11(b)(3)(i), (ii), or (iii),
whichever is applicable;
(5) Subtracting the result of section 11(b)(4) from the result of
section 11(b)(2); and
(6) Multiplying the result of section 11(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of wheat in the unit with a
production guarantee (per acre) of 45 bushels, your projected price is
$3.40, your harvest price is $3.45, and your production to count is
2,000 bushels.
If you elected yield protection:
(1) 50 acres x (45 bushel production guarantee x $3.40 projected
price) = $7,650.00 value of the production guarantee
(3) 2,000 bushel production to count x $3.40 projected price =
$6,800.00 value of the production to count
(5) $7,650.00-$6,800.00 = $850.00
(6) $850.00 x 1.000 share = $850.00 indemnity; or
If you elected revenue protection:
(1) 50 acres x (45 bushel production guarantee x $3.45 harvest
price) = $7,762.50 revenue protection guarantee
(3) 2,000 bushel production to count x $3.45 harvest price =
$6,900.00 value of the production to count
(5) $7,762.50-$6,900.00 = $862.50
(6) $862.50 x 1.000 share = $863.00 indemnity.
(c) The total production to count (in bushels) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) For oats, rye, flax, or buckwheat, and barley or wheat under
yield protection, not less than the production guarantee (per acre), and
for barley or wheat under revenue protection, not less than the amount
of production that when multiplied by the harvest price equals the
revenue protection guarantee (per acre) for acreage:
(A) Which is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide records of production that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for
[[Page 171]]
quality deficiencies and excess moisture in accordance with subsection
11.(d));
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature wheat, barley, oat, rye, and buckwheat production may be
adjusted for excess moisture and quality deficiencies. Flax production
may be adjusted for quality deficiencies only. If a moisture adjustment
is applicable, it will be made prior to any adjustment for quality.
(1) Production will be reduced by .12 percent for each .1 percentage
point of moisture in excess of:
(i) 13.5 percent for wheat;
(ii) 14.5 percent for barley;
(iii) 14.0 percent for oats; and
(iv) 16.0 percent for rye and buckwheat.
We may obtain samples of the production to determine the moisture
content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality, in accordance with the Official United
States Standards for Grain including the definition of terms used in
section 11(d), result in:
(A) Wheat, except Khorasan, not meeting the grade requirements for
U.S. No. 4 (grades U.S. No. 5 or worse) because of test weight; total
damaged kernels (heat-damaged kernels will not be considered to be
damaged); shrunken or broken kernels; defects (foreign material and heat
damage will not be considered to be defects); a musty, sour, or
commercially objectionable foreign odor (except smut odor); or grading
garlicky, light smutty, smutty or ergoty;
(B) Barley, except hull-less barley, not meeting the grade
requirements for U.S. No. 4 (grades U.S. No. 5 or worse) because of test
weight; percentage of sound barley (heat-damaged kernels will be
considered to be sound barley); damaged kernels (heat-damaged kernels
will not be considered to be damaged); thin barley; black barley; a
musty, sour, or commercially objectionable foreign odor (except smut or
garlic odor); or grading blighted, smutty, garlicky or ergoty;
(C) Oats, except hull-less oats, not meeting the grade requirements
for U.S. No. 4 (grade U.S. sample grade) because of test weight;
percentage of sound oats (heat-damaged kernels will be considered to be
sound oats); a musty, sour, or commercially objectionable foreign odor
(except smut or garlic odor); or grading smutty, thin, garlicky or
ergoty;
(D) Rye not meeting the grade requirements for U.S. No. 3 (grades
U.S. No. 4 or worse) because of test weight; percent damaged kernels
(heat-damaged kernels will not be considered to be damaged); thin rye; a
musty, sour, or commercially objectionable foreign odor (except smut or
garlic odor); or grading light smutty, smutty, light garlicky, garlicky,
or ergoty;
(E) Flaxseed not meeting the grade requirements for U.S. No. 2
(grades U.S. sample grade) due to test weight; damaged kernels (heat-
damaged kernels will not be considered to be damaged); or a musty, sour,
or commercially objectionable foreign odor (except smut or garlic odor);
(ii) Deficiencies in the quality of buckwheat, determined in
accordance with applicable state grading standards, result in it not
meeting No. 3 grade requirements due to test weight; a musty, sour or
commercially objectionable foreign odor (except smut or garlic odor); or
grading garlicky, smutty or ergoty if such grades are provided for by
the applicable state grading standards;
(iii) Quality factors for Khorasan fall below the levels contained
in the Official United States Standards for Grain that cause durum wheat
to grade less than U.S. No. 4. For example, if durum wheat grades less
than U.S. No. 4 when its test weight falls below 54.0 pounds per bushel,
Khorasan would be eligible for quality adjustment if its test weight
falls below 54.0 pounds per bushel. The same quality factors considered
for quality adjustment of durum wheat will be applicable and
determination of deficiencies will be made in accordance with the
Federal Grain Inspection Service directive that establishes procedures
for quality factor analysis of Khorasan seed. Quality adjustment
discount factors for U.S. grades specified in the Special Provisions
will also apply to Khorasan at the same levels applicable to durum
wheat;
(iv) Quality factors for hull-less barley fall below the levels
contained in the Official United States Standards for Grain that
[[Page 172]]
cause barley to grade less than U.S. No. 4. For example, if barley
grades less than U.S. No. 4 when its test weight falls below 40.0 pounds
per bushel, hull-less barley would be eligible for quality adjustment if
its test weight falls below 40.0 pounds per bushel. The same quality
factors considered for quality adjustment of barley will be applicable
and determination of deficiencies will be made in accordance with the
Federal Grain Inspection Service directive that establishes procedures
for quality factor analysis of hull-less barley. Quality adjustment
discount factors for U.S. grades specified in the Special Provisions
will also apply to hull-less barley at the same levels applicable to
barley;
(v) Quality factors for hull-less oats fall below the levels
contained in the Official United States Standards for Grain that cause
oats to grade less than U.S. No. 4. For example, if oats grade less than
U.S. No. 4 when its test weight falls below 27.0 pounds per bushel,
hull-less oats would be eligible for quality adjustment if the test
weight falls below 27.0 pounds per bushel. The same quality factors
considered for quality adjustment of oats will be applicable and
determination of deficiencies will be made in accordance with the
Federal Grain Inspection Service directive that establishes procedures
for quality factor analysis of hull-less oats. Quality adjustment
discount factors for U.S. grades specified in the Special Provisions
will also apply to hull-less oats at the same levels applicable to oats;
or
(vi) Substances or conditions are present, including mycotoxins,
that are identified by the Food and Drug Administration or other public
health organizations of the United States as being injurious to human or
animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a
cause of loss against which insurance is provided under these crop
provisions;
(ii) All determinations of these deficiencies, substances, or
conditions are made using samples of the production obtained by us or by
a disinterested third party approved by us;
(iii) With regard to deficiencies in quality (except test weight,
which may be determined by our loss adjustor), the samples are analyzed
by:
(A) A grain grader licensed under the United States Grain Standards
Act or the United States Warehouse Act;
(B) A grain grader licensed under State law and employed by a
warehouse operator who has a commodity storage agreement with the
Commodity Credit Corporation; or
(C) A grain grader not licensed under State law, but who is employed
by a warehouse operator who has a commodity storage agreement with the
Commodity Credit Corporation and is in compliance with State law
regarding warehouses; and
(iv) With regard to substances or conditions injurious to human or
animal health, the samples are analyzed by a laboratory approved by us.
(4) Small grain production that is eligible for quality adjustment,
as specified in sections 11(d)(2) and (3), will be reduced by the
quality adjustment factor contained in the Special Provisions.
(e) Any production harvested from plants growing in the insured crop
may be counted as production of the insured crop on a weight basis.
12. Late Planting
A late planting period is applicable to small grains, except to any
barley or wheat acreage covered under the terms of the Wheat or Barley
Winter Coverage Endorsement. Barley or wheat covered under the terms of
the Winter Coverage Endorsement must be planted on or prior to the
applicable final planting date specified in the Special Provisions. In
counties having one fall final planting date for acreage covered under
the Wheat or Barley Winter Coverage Endorsement and another fall final
planting date for acreage not covered under the endorsement, the fall
late planting period will begin after the final planting date for
acreage not covered under the endorsement.
13. Prevented Planting
(a) In addition to the provisions contained in section 17 of the
Basic Provisions, in counties for which the Special Provisions designate
a spring final planting date, your prevented planting production
guarantee will be based on your approved yield for spring-planted
acreage of the insured crop.
(b) Your prevented planting coverage will be 60 percent of your
production guarantee for timely planted acreage. If you have additional
coverage and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[59 FR 9391, Feb. 28, 1994, as amended at 60 FR 62723, Dec. 7, 1995; 62
FR 65164, Dec. 10, 1997; 67 FR 43526, June 28, 2002; 68 FR 34268, June
9, 2003; 75 FR 15875, Mar. 30, 2010]
Sec. 457.102 Wheat or barley winter coverage endorsement.
United States Department of Agriculture
Federal Crop Insurance Corporation
Wheat or Barley Winter Coverage Endorsement
(This is a continuous endorsement)
[[Page 173]]
1. In return for payment of the additional premium designated in the
actuarial documents, this endorsement is attached to and made part of
the Small Grains Crop Provisions subject to the terms and conditions
described herein.
2. This endorsement is available only in counties for which the
Special Provisions for the insured crop designate both a fall final
planting date and a spring final planting date, and for which the
actuarial documents provide a premium rate for this coverage.
3. You must have a Small Grains Crop Insurance Policy in force and
elect to insure barley or wheat under that policy.
4. You must select this coverage, by crop, on your application for
insurance. Failure to do so means you have rejected this coverage for
both wheat and barley and this endorsement is void.
5. In addition to the requirements of section 34(b) of the Basic
Provisions and section 2 of the Small Grains Crop Provisions, optional
units may be established for barley if each optional unit contains only
initially planted winter barley or only initially planted spring barley.
6. If you elect this endorsement for winter barley, the contract
change, cancellation, and termination dates applicable to wheat in the
county will be applicable to all your spring and winter barley.
7. Coverage under this endorsement begins on the later of the date
we accept your application for coverage or on the fall final planting
date designated in the Special Provisions. Coverage ends on the spring
final planting date designated in the Special Provisions.
8. The provisions of section 14 of the Basic Provisions are amended
to require that all notices of damage be provided to us by the spring
final planting date designated in the Special Provisions.
9. All eligible acreage of each crop covered under this endorsement
must be insured.
10. The amount of any indemnity paid under the terms of this
endorsement will be subject to any reduction specified in the Basic
Provisions for multiple crop benefits in the same crop year.
11. Whenever any winter wheat or barley is damaged during the
insurance period and at least 20 acres or 20 percent of the insured
planted acreage in the unit, whichever is less, does not have an
adequate stand to produce at least 90 percent of the production
guarantee for the acreage, you may, at your option, take one of the
following actions:
(a) Continue to care for the damaged crop. By doing so, coverage
will continue under the terms of the Basic Provisions, the Small Grains
Crop Insurance Provisions and this endorsement.
(b) Replant the acreage to an appropriate variety of the insured
crop, if it is practical, and receive a replanting payment in accordance
with the terms of section 9 (Replanting Payments) of the Small Grains
Crop Insurance Provisions. By doing so, coverage will continue under the
terms of the Basic Provisions, the Small Grains Crop Insurance
Provisions and this endorsement, and the production guarantee for winter
wheat or barley will remain in effect.
(c) Destroy the remaining crop on such acreage. By doing so, you
agree to accept an appraised amount of production determined in
accordance with section 11(c)(1) of the Small Grains Crop Insurance
Provisions to count against the unit production guarantee. This amount
will be considered production to count in determining any final
indemnity on the unit and will be used to settle your claim as described
in section 11 (Settlement of Claim) of the Small Grains Crop Insurance
Provisions. You may use such acreage for any purpose, including planting
and separately insuring any other crop if such insurance is available.
If you elect to plant and elect to insure a spring type of the same crop
(you must elect whether or not you want insurance on the spring type of
the same crop at the time we release the winter type acreage), you must
pay additional premium for the insurance. Such acreage will be insured
in accordance with the policy provisions that are applicable to acreage
that is initially planted to a spring type of the insured crop, and you
must:
(1) Plant the spring type in a manner which results in a clear and
discernable break in the planting pattern at the boundary between it and
any remaining acreage of the winter type; and
(2) Store or market the production in a manner which permits us to
verify the amount of spring type production separately from any winter
type production. In the event you are unable to provide records of
production that are acceptable to us, the spring type acreage will be
considered to be a part of the original winter type unit.
Option A (30 Percent Coverage and Acreage Release)
Whenever any winter wheat is damaged during the insurance period
(see section 3, above), and at least 20 acres or 20 percent of the
acreage in the unit, whichever is less, does not have an adequate stand
to produce at least 90 percent of the production guarantee for the
acreage, you may take any one of the following actions:
(a) Destroy the remaining crop on such acreage. By doing so, you
agree to accept an amount of production to count against the unit
production guarantee equal to 70 percent of the production guarantee for
the damaged acreage, or an appraisal determined in accordance with
paragraph 11.(c)(1) of the Small Grains Crop Insurance Provisions
(Sec. 457.101) if such an appraisal results in a greater amount of
production. This amount
[[Page 174]]
will be considered production to count in determining any final
indemnity on the unit and will be used to settle your claim as described
in the provisions under section 11. (Settlement of Claim) of the Small
Grains Crop Insurance Provisions (Sec. 457.101). You may use such
acreage for any purpose, including planting and separately insuring any
other crop. If you elect to utilize such acreage for the production of
spring wheat, you must:
(1) Plant the spring wheat in a manner which results in a clear and
discernible break in the planting pattern at the boundary between it and
any remaining winter wheat; and
(2) Store or market the production from such acreage in a manner
which permits us to verify the amount of spring wheat production
separately from any winter wheat production.
In the event you are unable to provide records of production that
are acceptable to us, the spring wheat acreage will be considered to be
a part of the original winter wheat unit. If you elected to insure the
spring wheat acreage as a separate optional unit, any premium amount for
such acreage will be considered earned and payable to us.
(b) Continue to care for the damaged crop. By doing so, coverage
will continue under the terms of the Common Crop Insurance Policy
(Sec. 457.8), the Small Grains Crop Insurance Provisions (Sec. 457.101),
and this Option.
(c) Replant the acreage to an appropriate variety of wheat, if it is
practical, and receive a replanting payment in accordance with the terms
of section 9. (Replanting Payments) of the Small Grains Crop Provisions
(Sec. 457.101). By doing so, coverage will continue under the terms of
the Common Crop Insurance Policy (Sec. 457.8), the Small Grains Crop
Insurance Provisions (Sec. 457.101), and this Option, and the production
guarantee for winter wheat will remain in effect.
Option B (With Full Winter Damage Coverage)
Whenever any winter wheat is damaged during the insurance period and
at least 20 acres or 20 percent of the acreage in the unit, whichever is
less, does not have an adequate stand to produce at least 90 percent of
the production guarantee for the acreage, you may, at your option, take
one of the following actions:
(a) Continue to care for the damaged crop. By doing so, coverage
will continue under the terms of the Common Crop Insurance Policy
(Sec. 457.8), the Small Grains Crop Insurance Provisions (Sec. 457.101),
and this Option.
(b) Replant the acreage to an appropriate variety of wheat, if it is
practical, and receive a replanting payment in accordance with the terms
of section 9. (Replanting Payments) of the Small Grains Crop Provisions
(Sec. 457.101). By doing so, coverage will continue under the terms of
the Common Crop Insurance Policy (Sec. 457.8), the Small Grains Crop
Insurance Provisions (Sec. 457.101), and this Option, and the production
guarantee for winter wheat will remain in effect.
(c) Accept our appraisal of the crop on the damaged acreage as
production to count against the production guarantee for the damaged
acreage, destroy the remaining crop on such acreage, and be eligible for
any indemnity due under the terms of the Common Crop Insurance Policy
(Sec. 457.8) and the Small Grains Crop Provisions (Sec. 457.101). The
appraisal will be considered production to count in determining any
final indemnity on the unit and will be used to settle your claim as
described in the provisions of section 11. (Settlement of Claim) of the
Small Grains Crop Insurance Provisions (Sec. 457.101). You may use such
acreage for any purpose, including planting and separately insuring any
other crop. If you elect to utilize such acreage for the production of
spring wheat, you must:
(1) Plant the spring wheat in a manner which results in a clear and
discernable break in the planting pattern at the boundary between it and
any remaining winter wheat; and
(2) Store or market the production from such acreage in a manner
which permits us to verify the amount of spring wheat production
separately from any winter wheat production.
In the event you are unable to provide records of production that
are acceptable to us, the spring wheat acreage will be considered to be
a part of the original winter wheat unit. If you elected to insure the
spring wheat acreage as a separate optional unit, any premium amount for
such acreage will be considered earned and payable to us.
[59 FR 9397, Feb. 28, 1994, as amended at 68 FR 34272, June 9, 2003]]
Sec. 457.103 [Reserved]
Sec. 457.104 Cotton crop insurance provisions.
The cotton crop insurance provisions for the 2011 and succeeding
crop years are as follows:
United States Department of Agriculture
Federal Crop Insurance Corporation
Cotton Crop Provisions
1. Definitions
Cotton. Varieties identified as American Upland Cotton.
Growth area. A geographic area designated by the Secretary of
Agriculture for the purpose of reporting cotton prices.
[[Page 175]]
Harvest. The removal of the seed cotton from the open cotton boll,
or the severance of the open cotton boll from the stalk by either manual
or mechanical means.
Mature cotton. Cotton that can be harvested either manually or
mechanically.
Planted acreage. In addition to the definition contained in the
Basic Provisions, cotton must be planted in rows, unless otherwise
provided by the Special Provisions, actuarial documents, or by written
agreement. The yield conversion factor normally applied to non-irrigated
skip-row cotton acreage will not be used if the land between the rows of
cotton is planted to any other spring planted crop.
Production guarantee (per acre). In lieu of the definition contained
in the Basic Provisions, the number of pounds determined by multiplying
the approved yield per acre by any applicable yield conversion factor
for non-irrigated skip-row planting patterns, and multiplying the result
by the coverage level percentage you elect.
Skip-row. A planting pattern that:
(1) Consists of alternating rows of cotton and fallow land or land
planted to another crop the previous fall; and
(2) Qualifies as a skip-row planting pattern as defined by the Farm
Service Agency (FSA) or a successor agency.
2. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions, you must elect to insure your cotton with either revenue
protection or yield protection by the sales closing date.
3. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
4. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
------------------------------------------------------------------------
Cancellation and
State and county termination dates
------------------------------------------------------------------------
Val Verde, Edwards, Kerr, Kendall, Bexar, January 31.
Wilson, Karnes, Goliad, Victoria, and Jackson
Counties, Texas, and all Texas counties lying
south thereof.
Alabama; Arizona; Arkansas; California; February 28.
Florida; Georgia; Louisiana; Mississippi;
Nevada; North Carolina; South Carolina; El
Paso, Hudspeth, Culberson, Reeves, Loving,
Winkler, Ector, Upton, Reagan, Sterling,
Coke, Tom Green, Concho, McCulloch, San Saba,
Mills, Hamilton, Bosque, Johnson, Tarrant,
Wise, and Cooke Counties, Texas, and all
Texas counties lying south and east thereof
to and including Terrell, Crocket, Sutton,
Kimble, Gillespie, Blanco, Comal, Guadalupe,
Gonzales, De Witt, Lavaca, Colorado, Wharton,
Matagorda Counties, Texas..
All other Texas counties and all other States. March 15.
------------------------------------------------------------------------
5. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the cotton lint, in the county for which premium
rates are provided by the actuarial documents:
(a) In which you have a share; and
(b) That is not (unless allowed by the Special Provisions or by
written agreement):
(1) Colored cotton lint;
(2) Planted into an established grass or legume; or
(3) Interplanted with another spring planted crop.
6. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) The acreage insured will be only the land occupied by the rows
of cotton when a skip row planting pattern is utilized; and
(b) Any acreage of the insured crop damaged before the final
planting date, to the extent that a majority of the producers in the
area would not normally further care for the crop, must be replanted
unless we agree that it is not practical to replant.
7. Insurance Period
(a) In lieu of section 11(b)(2) of the Basic Provisions, insurance
will end upon the removal of the cotton from the field.
(b) In accordance with the provisions under section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is the
date immediately following planting as follows:
(1) September 30 in Val Verde, Edwards, Kerr, Kendall, Bexar,
Wilson, Karnes, Goliad, Victoria, and Jackson Counties, Texas, and all
Texas counties lying south thereof;
(2) January 31 in Arizona, California, New Mexico, Oklahoma, and all
other Texas counties; and
(3) December 31 in all other states.
8. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss which occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
[[Page 176]]
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control meaures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss
specified in sections 8(a) through (g) that also occurs during the
insurance period; or
(i) For revenue protection, a change in the harvest price from the
projected price, unless FCIC can prove the price change was the direct
result of an uninsured cause of loss specified in section 12(a) of the
Basic Provisions.
9. Duties in the Event of Damage or Loss
(a) In addition to your duties under section 14 of the Basic
Provisions, in the event of damage or loss, the cotton stalks must
remain intact for our inspection. The stalks must not be destroyed, and
required samples must not be harvested, until the earlier of our
inspection or 15 days after harvest of the balance of the unit is
completed and written notice of probable loss given to us.
(b) Representative samples are required in accordance with section
14 of the Basic Provisions.
10. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production that are acceptable to us
for any:
(1) Optional unit, we will combine all optional units for which
acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such
units in proportion to our liability on the harvested acreage for each
unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the number of insured acres by your respective:
(i) Yield protection guarantee (per acre) if you elected yield
protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue
protection;
(2) Totaling the results of section 10(b)(1)(i) or 10(b)(1)(ii),
whichever is applicable;
(3) Multiplying the production to count by your:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 10(b)(3)(i) or 10(b)(3)(ii),
whichever is applicable;
(5) Subtracting the result of section 10(b)(4) from the result of
section 10(b)(2); and
(6) Multiplying the result of section 10(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of cotton in the unit with a
production guarantee (per acre) of 525 pounds, your projected price is
$.65, your harvest price is $.70, and your production to count is 25,000
pounds.
If you elected yield protection:
(1) 50 acres x (525 pound production guarantee x $.65 projected
price) = $17,062.50 value of the production guarantee
(3) 25,000 pound production to count x $.65 projected price =
$16,250.00 value of production to count
(5) $17,062.50-$16,250.00 = $812.50
(6) $812.50 x 1.000 share = $813.00 indemnity; or
If you elected revenue protection:
(1) 50 acres x (525 pound production guarantee x $.70 harvest price)
= $18,375.00 revenue protection guarantee
(3) 25,000 pound production to count x $.70 harvest price =
$17,500.00 value of the production to count
(5) $18,375.00-$17,500.00 = $875.00
(6) $875.00 x 1.000 share = $875.00 indemnity.
(c) The total production to count (in pounds) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee and
for revenue protection, not less than the amount of production that when
multiplied by the harvest price equals the revenue protection guarantee
(per acre) for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes;
(D) For which you fail to provide records of production that are
acceptable to us; or
(E) On which the cotton stalks are destroyed, in violation of
section 9;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production of white
cotton may be adjusted for quality deficiencies in accordance with
subsection 10(d)); and
(iv) Potential production on insured acreage you want to put to
another use or you wish to abandon or no longer care for, if you and we
agree on the appraised amount of production. Upon such agreement, the
insurance period for that acreage will end if you put the acreage to
another use or abandon the crop. If agreement on the appraised amount of
production is not reached:
(A) If you do not elect to continue to care for the crop we may give
you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be
[[Page 177]]
based on the harvested production or appraisals from the samples at the
time harvest should have occurred. If you do not leave the required
samples intact, or you fail to provide sufficient care for the samples,
our appraisal made prior to giving you consent to put the acreage to
another use will be used to determine the amount of production to
count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage, including
any mature cotton retrieved from the ground.
(d) Mature white cotton may be adjusted for quality when production
has been damaged by insured causes. Such production to count will be
reduced if the price quotation for cotton of like quality (price
quotation ``A'') for the applicable growth area is less than 85 percent
of price quotation ``B.''
(1) Price B is defined as the Upland Cotton National Average Loan
Rate determined by FSA, or as specified in the Special Provisions.
(2) Price A is defined as the loan value per pound for the bale
determined in accordance with the FSA Schedule of Premiums and Discounts
for the applicable crop year, or as specified in the Special Provisions.
(3) If eligible for adjustment, the amount of production to count
will be determined by multiplying the number of pounds of such
production by the factor derived from dividing price quotation ``A'' by
85 percent of price quotation ``B.''
(e) Colored cotton lint will not be eligible for quality adjustment.
11. Prevented Planting
(a) In addition to the provisions contained in section 17 of the
Basic Provisions, your prevented planting production guarantee will be
based on your approved yield without adjustment for skip-row planting
patterns.
(b) Your prevented planting coverage will be 50 percent of your
production guarantee for timely planted acreage. If you have additional
coverage and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[59 FR 49154, Sept. 27, 1994, as amended at 60 FR 62725, Dec. 7, 1995;
62 FR 7134, Feb. 18, 1997; 62 FR 63633, Dec. 2, 1997; 62 FR 65164, Dec.
10, 1997; 63 FR 55497, Oct. 16, 1998; 63 FR 66717, Dec. 3, 1998; 75 FR
15878, 15879, Mar. 30, 2010; 75 FR 59057, Sept. 27, 2010]
Sec. 457.105 Extra long staple cotton crop insurance provisions.
The extra long staple cotton crop insurance provisions for the 2014
and succeeding crop years are as follows:
United States Department of Agriculture
Federal Crop Insurance Corporation
ELS Cotton Crop Provisions
1. Definitions
Cotton. Varieties identified as Extra Long Staple (ELS) cotton and
American Upland (AUP) cotton if ELS cotton is destroyed by an insured
cause and acreage is replanted to AUP cotton.
ELS cotton. Extra Long Staple cotton (also called Pima cotton,
American-Egyptian cotton, and American Pima cotton).
Harvest. The removal of the seed cotton from the open cotton boll,
or the severance of the open cotton boll from the stalk by either manual
or mechanical means.
Mature ELS cotton. ELS cotton that can be harvested either manually
or mechanically.
Planted acreage. In addition to the definition contained in the
Basic Provisions, cotton must be planted in rows, unless otherwise
provided by the Special Provisions, actuarial documents, or by written
agreement. The yield conversion factor normally applied to non-irrigated
skip-row cotton acreage will not be used if the land between the rows of
cotton is planted to any other spring planted crop.
Production guarantee. The number of pounds determined by multiplying
the approved yield per acre by any applicable yield conversion factor
for non-irrigated skip-row planting patterns, and multiplying the result
by the coverage level percentage you elect.
Replanting. Performing the cultural practices necessary to replace
the ELS cotton seed, and replacing the seed with either ELS or AUP
cotton seed in the insured acreage with the expectation of growing a
successful crop.
Skip-row. A planting pattern that:
(1) Consists of alternating rows of cotton and fallow land or land
planted to another crop the previous fall; and
(2) Qualifies as a skip-row planting pattern as defined by the Farm
Service Agency (FSA) or a successor agency.
2. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic Provisions
(Sec. 457.8) you may select only one price election for all the cotton
in the county insured under this policy.
[[Page 178]]
3. Contract Changes
The contract change date is November 30 (December 17 for the 1998
crop year only) preceding the cancellation date (see the provisions of
section 4 of the Basic Provisions).
4. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions (Sec. 457.8),
the cancellation and termination dates are:
------------------------------------------------------------------------
Cancellation and termination
States dates
------------------------------------------------------------------------
New Mexico................................ March 15.
All other States.......................... Feb. 28.
------------------------------------------------------------------------
5. Insured Crop
In accordance with section 8 of the Basic Provisions (Sec. 457.8),
the crop insured will be all the cotton lint in the county for which
premium rates are provided by the actuarial documents:
(a) In which you have a share; and
(b) That is not (unless allowed by the Special Provisions or by a
written agreement):
(1) Planted into an established grass or legume;
(2) Interplanted with another spring planted crop;
(3) Grown on acreage from which a hay crop was harvested in the same
calendar year unless the acreage is irrigated; or
(4) Grown on acreage on which a small grain crop reached the heading
stage in the same calendar year unless the acreage is irrigated or
adequate measures are taken to terminate the small grain crop prior to
heading and less than fifty percent (50%) of the small grain plants
reach the heading stage.
6. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions
(Sec. 457.8):
(a) The acreage insured will be only the land occupied by the rows
of cotton when a skip row planting pattern is utilized; and
(b) Any acreage of the insured crop damaged before the final
planting date, to the extent that a majority of producers in the area
would not be replanted unless we agree that it is not practical to
replant.
7. Insurance Period
(a) In lieu of section 11(b)(b)(2) of the Basic Provisions,
insurance will end upon the removal of the cotton from the field.
(b) In accordance with the provisions of section 11 of the Basic
Provisions (Sec. 457.8), the calendar date for the end of the insurance
period is January 31 immediately following planting.
8. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions (Sec. 457.8), insurance is provided only against the
following causes of loss which occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of irrigation water supply, if applicable, due to an
unavoidable cause of loss occurring within the insurance period.
9. Duties in the Event of Damage or Loss.
(a) In addition to your duties under section 14 of the Basic
Provisions, in the event of damage or loss:
(1) You must give us notice if you intend to replant any acreage
originally planted to ELS cotton to AUP cotton.
(2) The cotton stalks must remain intact for our inspection. The
stalks must not be destroyed, and required samples must not be
harvested, until the earlier of our inspection or 15 days after harvest
of the balance of the unit is completed and written notice of probable
loss is given to us.
(b) Representative samples are required in accordance with section
14 of the Basic Provisions.
10. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production:
(1) For any optional unit, we will combine all optional units for
which acceptable records of production were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim on any unit by:
(1) Multiplying the insured acreage by the production guarantee;
(2) Subtracting from this the total production to count;
(3) Multiplying the remainder by your price election; and
(4) Multiplying this result by your share.
(c) The total production to count (in pounds) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
[[Page 179]]
(C) Damaged solely by uninsured causes;
(D) For which you fail to provide records of production that are
acceptable to us; or
(E) On which the cotton stalks are destroyed in violation of section
9;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies in accordance with subsection:
(A) 10(d) and (e) if it is mature ELS cotton; or
(B) 10(f) if it is AUP cotton insured under these crop provisions);
and
(iv) Potential production on insured acreage you want to put to
another use or you wish to abandon or no longer care for, if you and we
agree on the appraised amount of production. Upon such agreement the
insurance period for that acreage will end if you put the acreage to
another use or abandon the crop. If agreement on the appraised amount of
production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provided sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count.); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage, including
any mature cotton retrieved from the ground.
(d) Mature ELS cotton production may be adjusted for quality when
production has been damaged by insured causes. Such production to count
will be reduced if Price A is less than 85 percent of Price B.
(1) Price B is defined as the Extra Long Staple Cotton National
Average Loan Rate determined by FSA, or as specified in the Special
Provisions.
(2) Price A is defined as the loan value per pound for the bale
determined in accordance with the FSA Schedule of Premiums and Discounts
for the applicable crop year, or as specified in the Special Provisions.
(3) If eligible for quality adjustment, the amount of production to
be counted will be determined by multiplying the number of pounds of
such production by the factor derived from dividing Price A by 85
percent of Price B.
(e) For ELS cotton to be eligible for quality adjustment as shown in
subsection 10(d), ginning must have been completed at a gin using roller
equipment.
(f) Mature AUP cotton harvested or appraised from acreage originally
planted to ELS cotton in the same growing season will be reduced by the
factor obtained by dividing the price per pound for AUP cotton by the
price per pound for ELS cotton. The prices used for AUP and ELS cotton
will be calculated using the Upland Cotton National Average Loan Rate
determined by FSA and the Extra Long Staple Cotton National Average Loan
Rate determined by FSA, or as specified in the Special Provisions.
11. Late Planting.
(a) A late planting period is applicable to ELS cotton, if allowed
by the Special Provisions.
(b) If the Special Provisions do not provide for a late planting
period, any ELS cotton that is planted after the final planting date
will not be insured unless you were prevented from planting it by the
final planting date. Such acreage will be insurable, and the production
guarantee and premium for the acreage will be determined in accordance
with section 16 of the Basic Provisions.
12. Prevented Planting
(a) In addition to the provisions contained in section 17 of the
Basic Provisions, your prevented planting production guarantee will be
based on your approved yield without adjustment for skip-row planting
patterns.
(b) Your prevented planting coverage will be 50 percent of your
production guarantee for timely planted acreage. If you have limited or
additional levels of coverage, as specified in 7 CFR part 400, subpart
T, and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[59 FR 49169, Sept. 27, 1994, as amended at 60 FR 62726, Dec. 7, 1995;
62 FR 6704, Feb. 13, 1997; 62 FR 63633, Dec. 2, 1997; 62 FR 65165, Dec.
10, 1997; 63 FR 55497, Oct. 16, 1998; 63 FR 66717, Dec. 3, 1998; 76 FR
32068, June 3, 2011; 78 FR 70487, Nov. 26, 2013]
Sec. 457.106 Texas citrus tree crop insurance provisions.
The Texas Citrus Tree Crop Insurance Provisions for the 2011 and
succeeding crop years are as follows:
[[Page 180]]
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Texas Citrus Tree Crop Provisions
1. Definitions
Bud union. The location on the tree trunk where a bud from one tree
variety is grafted onto root stock of another variety.
Crop--Specific groups of citrus fruit trees as listed in the Special
Provisions.
Crop year. For the 1998 crop year only, a period of time that begins
on June 1, 1997, and ends on November 20, 1998. For all other crop
years, a period of time that begins on November 21 of the calendar year
prior to the year the trees normally bloom, and ends on November 20 of
the following calendar year. The crop year is designated by the year in
which the insurance period ends.
Dehorning. Cutting all scaffold limbs to a length not longer than
\1/4\ the height of the tree before such cutting.
Destroyed--Trees damaged to the extent that removal is necessary.
Excess precipitation. An amount of precipitation sufficient to
directly damage the tree.
Excess wind. A natural movement of air that has sustained speeds in
excess of 58 miles per hour recorded at the U.S. Weather Service
reporting station nearest to the crop at the time of crop damage.
Freeze. The formation of ice in the cells of the trees caused by low
air temperatures.
Good farming practices. The cultural practices generally in use in
the county for the trees to have normal growth and vigor and recognized
by the National Institute of Food and Agriculture as compatible with
agronomic and weather conditions in the county.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Irrigated practice. A method by which the normal growth and vigor of
the insured trees is maintained by artificially applying adequate
quantities of water during the growing season using the appropriate
irrigation systems at the proper times.
Root stock. A root or a piece of a root of one tree variety onto
which a bud from another tree variety is grafted.
Scaffold limbs. Major limbs attached directly to the trunk.
Set out. Transplanting the tree into the grove.
2. Unit Division
(a) A basic unit, as defined in section 1 of the Basic Provisions,
will be divided into additional basic units by each citrus crop
designated in the Special Provisions.
(b) Sections 34(b) (1), (3), and (4) of the Basic Provisions are not
applicable.
(c) Provisions in the Basic Provisions that allow optional units by
irrigated and non-irrigated practices are not applicable.
(d) Instead of establishing optional units by section, section
equivalent, or FSA farm serial number optional units may be established
if each optional unit is located on non-contiguous land.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In lieu of the requirement of section 3 (Insurance Guarantees,
Coverage Levels, and Prices for Determining Indemnities) of the Basic
Provisions (Sec. 457.8), that prohibits you from selecting more than one
coverage level for each insured crop, you may select a different
coverage level for each crop designated in the Special Provisions that
you elect to insure.
(b) In addition to the requirements of section 3 (Insurance
Guarantees, Coverage Levels, and Prices for Determining Indemnities) of
the Basic Provisions (Sec. 457.8):
(1) If you insure trees within a crop which are either of a
different variety or are planted at a different population density, the
per acre amount of insurance for each variety or population density for
the crop must bear the same relationship to the maximum amount of
insurance available for each variety and population density of the crop
as specified in the Actuarial documents. For example, if you elect 100
percent of the maximum amount of insurance for a variety within a
population density for the crop, you must select 100 percent of the
maximum amount of insurance for that variety for all population
densities for the crop. The amount of insurance for each variety and
population density must be multiplied by any applicable factor contained
in section 3(b)(2).
(2) The amount of insurance per acre will be the product obtained by
multiplying the reference maximum dollar amount of insurance that is
shown in the actuarial documents for the applicable population density
by the percentage for the level of coverage you select and by:
(i) Thirty-three percent (0.33) for the year of set out, the year
following dehorning, or the year following grafting of a set out tree.
(Insurance will be limited to this amount until trees that are set out
are one year of age or older on the first day of the crop year);
(ii) Sixty percent (0.60) for the first growing season after being
set out, the second year following dehorning, or the second year
following grafting of a set out tree;
(iii) Eighty percent (0.80) for the second growing season after
being set out, the third
[[Page 181]]
year following dehorning, or the third year following grafting of a set
out tree; or
(iv) Ninety percent (0.90) for the third growing season after being
set out, the fourth year following dehorning, or the fourth year
following grafting of a set out tree.
(3) The amount of insurance per acre for each population density, or
factor as appropriate, will be multiplied by the applicable number of
insured acres. These results will then be added together to determine
the amount of insurance for the unit.
(4) The amount of insurance will be reduced proportionately for any
unit on which the stand is less than 90 percent, based on the original
planting pattern. For example, if the amount of insurance you selected
is $2,000 and the remaining stand is 85 percent of the original stand,
the amount of insurance on which the premium and any indemnity will be
based is $1,700 ($2,000 multiplied by 0.85).
(5) If any insurable acreage of trees is set out after the first day
of the crop year, and you elect to insure such acreage during that crop
year, you must report the acreage, practice, crop, number of trees, date
set out is completed, and your share to us within 72 hours after set out
is completed for the unit.
(6) Production reporting requirements contained in section 3
(Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities) of the Basic Provisions (Sec. 457.8), are not applicable.
(7) You must report, by the sales closing date contained in the
Special Provisions, by type if applicable:
(i) Any damage, removal of trees, change in practices, or any other
circumstance that may reduce the amount of insurance, and the number of
affected acres;
(ii) The number of trees on insurable and uninsurable acreage;
(iii) The date of original set out and the planting pattern;
(iv) The date of replacement or dehorning, if more than 10 percent
of the trees on any unit have been replaced or dehorned in the previous
5 years; and
(v) For the first year of insurance for acreage interplanted with
another perennial crop, and anytime the planting pattern of such acreage
is changed:
(A) The age of the interplanted crop, and type if applicable;
(B) The planting pattern; and
(C) Any other information that we request in order to establish your
amount of insurance.
We will reduce the amount of insurance as necessary, based on our
estimate of the effect of interplanting a perennial crop; removal of
trees; damage; change in practices and any other circumstance on the
potential of the insured crop. If you fail to notify us of any
circumstance that may reduce the potential for the insured crop, we will
reduce your amount of insurance as necessary at any time we become aware
of the circumstance.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is August 31 preceding
the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are November 20.
6. Annual Premium
In addition to the provisions of section 7 of the Basic Provisions
(Sec. 457.8), for the 1998 crop year, the premium amount otherwise
payable for the 1998 crop year will be increased by 46 percent as a
result of the additional six months of coverage for that crop year.
7. Insured Crop
(a) In accordance with section 8 (Insured Crop) of the Basic
Provisions (Sec. 457.8), the crop insured will be all of each citrus
tree crop designated in the Special Provisions in the county for which a
premium rate is provided by the actuarial documents and that you elect
to insure:
(1) In which you have an ownership share;
(2) That is adapted to the area;
(3) That is set out for the purpose of growing fruit to be harvested
for the commercial production of fresh fruit or for juice;
(4) That is irrigated; and
(5) That have the potential to produce at least 70 percent of the
county average yield for the crop and age, unless a written agreement is
approved to insure the trees with lesser potential.
(b) In addition to section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), we do not insure any citrus trees:
(1) During the crop year the application for insurance is filed,
unless we inspect the acreage and consider it acceptable; or
(2) That have been grafted onto existing root stock or nursery stock
within the one-year period prior to the date insurance attaches.
(c) We may exclude from insurance or limit the amount of insurance
on any acreage that was not insured the previous year.
8. Insurable Acreage
In lieu of the provisions in section 9 (Insurable Acreage) of the
Basic Provisions (Sec. 457.8), that prohibit insurance attaching to a
crop planted with another crop, citrus trees interplanted with another
perennial crop are insurable, unless we inspect the
[[Page 182]]
acreage and determine that it does not meet the requirements contained
in your policy.
9. Insurance Period
In lieu of the provisions of section 11 (Insurance Period) of the
Basic Provisions (Sec. 457.8):
(a) The insurance period is as follows:
(1) For the 1998 crop year only, coverage will begin on June 1,
1997, and will end on November 20, 1998.
(2) For all subsequent crop years, coverage begins on November 21 of
the calendar year prior to the year the insured crop normally blooms,
except that for the year of application, if your application is received
after November 11 but prior to November 21, insurance will attach on the
10th day after your properly completed application is received in our
local office, unless we inspect the acreage during the 10 day period and
determine that it does not meet the requirements for insurability
contained in your policy. You must provide any information that we
require for the crop or to determine the condition of the grove.
(3) The calendar date for the end of the insurance period for each
crop year is November 20.
(b) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period.
(c) If you relinquish your insurable share on any insurable acreage
of citrus trees on or before the acreage reporting date for the crop
year, insurance will not be considered to have attached to and no
premium or indemnity will be due for such acreage for that crop year
unless:
(1) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(2) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(3) The transferee is eligible for crop insurance.
10. Causes of Loss
In accordance with the provisions of section 12 (Causes of Loss) of
the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur within the insurance period:
(a) Excess precipitation;
(b) Excess wind;
(c) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the grove;
(d) Freeze;
(e) Hail;
(f) Tornado; or
(g) Failure of the irrigation water supply if caused by an insured
peril or drought that occurs during the insurance period.
11. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 (Duties in the Event
of Damage or Loss) of the Basic Provisions (Sec. 457.8), in case of
damage or probable loss, if you intend to claim an indemnity on any
unit, you must allow us to inspect all insured acreage before pruning,
dehorning, or removal of any damaged trees.
12. Settlement of Claim
(a) In the event of damage covered by this policy, we will settle
your claim on a unit basis by:
(1) Determining the actual percent of damage for the unit in
accordance with sections 12 (b), (c), and (d);
(2) Subtracting your deductible from the percent of damage for the
unit (this result must be greater than zero to receive an indemnity);
(3) Dividing the result of section 12(a)(2) by your coverage level
percentage;
(4) Multiplying the result of section 12(a)(3) by the amount of
insurance per acre determined in accordance with section 3(b)(2);
(5) Multiplying the result of section 12(a)(4) by the number of
insured acres; and
(6) Multiplying the result of section 12(a)(5) by your share.
(b) The percent of damage for any tree will be determined as
follows:
(1) For damage occurring during the year of set out (trees that have
not been set out for at least one year at the time insurance attaches):
(i) One-hundred percent (100%) whenever there is no live wood above
the bud union;
(ii) Ninety percent (90%) whenever there is less than 12 inches of
live wood above the bud union; or
(iii) The tree will be considered undamaged whenever there is more
than 12 inches of live wood above the bud union; or
(2) For damage occurring in any year following the year of set out:
(i) The percentage of damage will be determined by dividing the
number of scaffold limbs damaged in an area from the trunk to a length
equal to one-fourth (\1/4\) the height of the tree, by the total number
of scaffold limbs before damage occurred. Whenever this percentage
exceeds 80 percent, the tree will be considered as 100 percent damaged.
(ii) The percent of damage for the unit will be determined by
computing the average of the determinations made for the individual
trees. If this percent of damage exceeds 80 percent, the unit will be
considered 100 percent damaged.
[[Page 183]]
(c) The percent of damage on the unit will be reduced by the
percentage of damage due to uninsured causes.
13. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 4117, Jan. 29, 1997, as amended at 62 FR 65166, Dec. 10, 1997; 63
FR 55779, Oct. 19, 1998; 75 FR 15879, Mar. 30, 2010; 76 FR 4804, Jan.
27, 2011]
Sec. 457.107 Florida citrus fruit crop insurance provisions.
The Florida Citrus Fruit Crop Insurance Provisions for the 2014 and
succeeding crop years are as follows:
FCIC policies: United States Department of Agriculture, Federal Crop
Insurance Corporation
Reinsured policies: (Appropriate title for insurance provider)
Both FCIC and reinsured policies: Florida Citrus Fruit Crop Insurance
Provisions
1. Definitions
Age class. Trees in the unit are grouped by age, with each insurable
age group of a particular citrus fruit commodity, commodity type, and
intended use receiving a Reference Maximum Dollar Amount shown in the
actuarial documents that is used to calculate the amount of insurance
for the unit.
Amount of insurance (per acre). The dollar amount determined by
multiplying the Reference Maximum Dollar Amount shown on the actuarial
documents for each applicable combination of commodity type, intended
use, and age class of trees, within a citrus fruit commodity, times the
coverage level percent that you elect, times your share.
Box. A standard field box as prescribed in the State of Florida
Citrus Fruit Laws or contained in standards issued by FCIC.
Buckhorn. To prune any limb at a diameter of at least three inches
for citrus.
Citrus fruit commodity. Citrus fruit as follows:
(1) Oranges;
(2) Grapefruit;
(3) Tangelos;
(4) Mandarins/Tangerines;
(5) Tangors;
(6) Lemons;
(7) Limes; and
(8) Any other citrus fruit commodity designated in the actuarial
documents.
Citrus fruit group. A designation in the Special Provisions used to
identify combinations of commodity types and intended uses within a
citrus fruit commodity that may be grouped together for the purposes of
electing coverage levels and identifying the insured crop.
Commodity type. A specific subgroup of a commodity having a
characteristic or set of characteristics distinguishable from other
subgroups of the same commodity.
Excess wind. A natural movement of air that has sustained speeds
exceeding 58 miles per hour (50 knots) recorded at the U.S. National
Weather Service (NWS) reporting station (reported as MAX SUST (KT)), the
Florida Automated Weather Network (FAWN) reporting station (reported as
10m Wind (mph)), or any other weather reporting station identified in
the Special Provisions operating nearest to the insured acreage at the
time of damage.
Freeze. The formation of ice in the cells of the fruit caused by low
air temperatures.
Harvest. The severance of mature citrus fruit from the tree by
pulling, picking, shaking, or any other means, or collecting the
marketable citrus fruit from the ground.
Hurricane. A windstorm classified by the U.S. Weather Service as a
hurricane.
Intended use. The producer's expected end use or disposition of the
commodity at the time the commodity is reported. Insurable intended uses
will be specified in the Special Provisions.
Interstock. The area of the tree that is grafted to a rootstock. For
example, the rootstock may be Sour Orange, and the interstock
grapefruit, and the grafted scion Valencia orange.
Potential production. The amount, converted to boxes, of citrus
fruit that would have been produced had damage not occurred.
(a) Including citrus fruit that:
(1) Was harvested before damage occurred;
(2) Remained on the tree after damage occurred;
(3) Except as provided in (b), was missing, damaged, or destroyed
from either an insured or uninsured cause;
(4) Was marketed or could be marketed as fresh citrus fruit;
(5) Was harvested prior to inspection by us; or
(6) Was harvested within 7 days after a freeze;
(b) Not including citrus fruit that:
(1) Was missing, damaged, or destroyed before insurance attached for
any crop year;
(2) Was damaged or destroyed by normal dropping; or
(3) Any tangerines that normally would not meet the 210 pack size (2
and \4/16\ inch minimum diameter) under United States Standards by the
end of the insurance period for tangerines.
Scion. A detached living portion of a plant joined to a stock in
grafting.
Top worked. A buckhorned citrus tree with a new scion grafted onto
the interstock.
[[Page 184]]
Unmarketable. Citrus fruit that cannot be processed into products
for human consumption.
2. Unit Division
(a) Basic units will be established in accordance with section 1 of
the Basic Provisions.
(b) Provisions in the Basic Provisions that allow optional units by
irrigated and non-irrigated practices are not applicable.
(c) In addition to establishing optional units by section, section
equivalent, or FSA farm serial number, optional units may be established
if each optional unit is located on non-contiguous land.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one coverage level for each citrus fruit
group that you elect to insure. If different amounts of insurance are
available for commodity types within a citrus fruit group, you must
select the same coverage level for each commodity type. For example, if
you choose the 75 percent coverage level for one commodity type, you
must also choose the 75 percent coverage level for all other commodity
types within that citrus fruit group.
(b) The production reporting requirements contained in section 3 of
the Basic Provisions are not applicable.
(c) You must report, by the acreage reporting date designated in the
actuarial documents:
(1) Any event or action that could reduce the yield per acre of the
insured citrus fruit commodity (including but not limited to removal of
trees, any damage, disease, change in cultural practices, or any other
circumstance that may reduce the productive capacity of the trees) and
the number of affected acres;
(2) The number of trees on insurable and uninsurable acreage,
including interplanted trees;
(3) The age of the trees and the planting pattern; and
(4) Any other information we request in order to establish your
amount of insurance.
(d) We will reduce insurable acreage or the amount of insurance or
both, as necessary:
(1) Based on our estimate of the effect of the interplanted trees on
the insured commodity type;
(2) Following a decrease in plant stand;
(3) If cultural practices are performed that may reduce the
productive capacity of the trees;
(4) If disease or damage occurs to the trees that may reduce the
productive capacity of the trees; or
(5) Any other circumstance that may reduce the productive capacity
of the trees or that may reduce the yield per acre from previous levels.
(e) If you fail to notify us of any circumstance that may reduce the
acreage, the productive capacity of the trees, or the yield per acre
from previous levels, we will reduce the acreage or amount of insurance
or both as necessary any time we become aware of the circumstance.
(f) For carryover policies:
(1) Any changes to your coverage must be requested on or before the
sales closing date;
(2) Requested changes will take effect on May 1, the first day of
the crop year, unless we reject the requested increase based on our
inspection, or because a loss occurs on or before April 30 (Rejection
can occur at any time we discover loss has occurred on or before April
30); and
(3) If the increase is rejected, coverage will remain at the same
level as the previous crop year.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is January 31 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are April 30.
6. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the
insured crop will be all acreage of each citrus fruit group that you
elect to insure, in which you have a share, that is grown in the county
shown on the application, and for which a premium rate is quoted in the
actuarial documents.
(b) In addition to the citrus fruit not insurable in section 8 of
the Basic Provisions, we do not insure any citrus fruit:
(1) That cannot be expected to mature each crop year within the
normal maturity period for the commodity type;
(2) Produced by citrus trees that have not reached the fifth growing
season after being set out, unless otherwise provided in the Special
Provisions or by a written agreement to insure such citrus fruit (In
order for the year of set out to be considered as a growing season,
citrus trees must be set out on or before April 15 of the calendar
year);
(3) Of ``Meyer Lemons,'' ``Sour Oranges,'' or ``Clementines'';
(4) Of the Robinson tangerine variety, for any crop year in which
you have elected to exclude such tangerines from insurance (You must
elect this exclusion prior to the crop year for which the exclusion is
to be effective, except that for the first crop year you must elect this
exclusion by the later of the
[[Page 185]]
sales closing date or the time you submit the application for
insurance);
(5) That is produced on citrus trees that have been topworked until
the third crop year after topworking. The Special Provisions will
specify the appropriate rate class for trees insurable following
topworking, but that have not reached full production; or
(6) Of any commodity type not specified as insurable in the Special
Provisions.
(c) Prior to the date insurance attaches, and upon our approval, you
may elect to insure or exclude from insurance any insurable citrus
acreage that has a potential production of less than 100 boxes per acre.
If you elect to:
(1) Insure such acreage, we will consider the potential production
to be 100 boxes per acre when determining the amount of loss; or
(2) Exclude such acreage, we will disregard the acreage for all
purposes related to this policy.
(d) In addition to the provisions in section 6 of the Basic
Provisions, if you fail to notify us of your election to insure or
exclude citrus acreage, and the potential production from such acreage
is 100 or more boxes per acre, we will determine the percent of damage
on all of the insurable acreage for the unit, but will not allow the
percent of damage for the unit to be increased by including such
acreage.
(e) Potential production will be determined during loss adjustment.
(f) For citrus fruit for which fresh fruit coverage is available as
designated in the actuarial documents:
(1) Management records must be available upon request to verify good
fresh citrus fruit production practices were followed from the beginning
of bloom stage until harvest; and
(2) Unless otherwise provided in the Special Provisions:
(i) Acceptable fresh fruit sales records must be provided upon
request from at least one of the previous three crop years; or
(ii) For fresh fruit acreage new to the operation or for acreage in
the initial year of fresh fruit production, a current year fresh fruit
marketing contract must be provided to us upon request.
7. Insurable Acreage
(a) In lieu of the provisions in section 9 of the Basic Provisions
that prohibit insurance attaching to interplanted acreage:
(1) Citrus fruit from trees interplanted with another commodity type
or another agricultural commodity is insurable unless we inspect the
acreage and determine it does not meet the requirements contained in
your policy.
(2) If the citrus fruit is from trees interplanted with another
commodity type or another agricultural commodity, acreage will be
prorated according to the percentage of the acres occupied by each of
the interplanted commodity types or agricultural commodities. For
example, if grapefruit have been interplanted with oranges on 100 acres
and the grapefruit trees are on 50 percent of the acreage, grapefruit
will be considered planted on 50 acres and oranges will be considered
planted on 50 acres.
(3) The combination of the citrus fruit acreage and the interplanted
acreage cannot exceed the physical amount of acreage.
(b) In addition to section 9 of the Basic Provisions, any acreage of
citrus fruit that has been abandoned is not insurable.
8. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) Coverage begins on May 1 of each crop year, unless:
(i) For new or carryover policies, as applicable, we inspect the
acreage and determine it does not meet the requirements for insurability
contained in your policy (You must provide any information we require,
so we may determine the condition of the acreage to be insured); or
(ii) For carryover policies, you report additional citrus acreage,
or a greater share, such that the amount of insurance will increase by
more than 10 percent and we notify you all or a part of your citrus
acreage is not insurable.
(2) The calendar date for the end of the insurance period for each
crop year, unless specified otherwise in the Special Provisions, is:
(i) February 7 for navel oranges, Orlando tangelos and tangerines;
(ii) February 28 for early-season oranges and all other tangelos;
(iii) March 31 for mid-season oranges and temples;
(iv) April 30 for lemons and limes;
(v) May 15 for murcotts; and
(vi) June 30 for grapefruit and late-season oranges.
(b) In addition to the provisions of section 11 of the Basic
Provisions:
(1) Acreage acquired after the acreage reporting date for the crop
year is not insurable unless a transfer of coverage and right to
indemnity is executed in accordance with section 28 of the Basic
Provisions.
(2) If you relinquish your insurable share on any insurable acreage
of citrus fruit on or before the acreage reporting date of the crop
year, insurance will not attach, no premium will be due, and no
indemnity payable, for such acreage for that crop year.
9. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes
[[Page 186]]
of loss to citrus fruit that occur within the insurance period:
(1) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the grove;
(2) Freeze;
(3) Hail;
(4) Hurricane;
(5) Tornado;
(6) Excess wind; or
(7) Diseases, but only if specified in the Special Provisions.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to:
(1) Damage to the blossoms or trees; or
(2) Inability to market the citrus fruit for any reason other than
actual physical damage from an insurable cause specified in this
section. For example, we will not pay you an indemnity if you are unable
to market due to quarantine, boycott, or refusal of any person to accept
production.
10. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) If any citrus fruit within a unit is damaged by an insurable
cause of loss, we will settle your claim by:
(1) Calculating the amount of insurance for the unit by multiplying
the number of acres by the respective dollar amount of insurance per
acre for each applicable combination of commodity type, intended use,
and age class of trees in the unit and multiplying that result by your
share;
(2) Calculating the average percent of damage to the fruit within
each respective combination of commodity type, intended use, and age
class of trees, rounded to the nearest tenth of a percent (0.1%) (To
determine the percent of damage, the amount of citrus fruit damaged from
an insured cause must be converted to boxes and divided by the potential
production);
(3) Subtracting the deductible from the result of section 10(b)(2);
(4) If the result of section 10(b)(3) is positive, dividing this
result by the coverage level percentage (If the result of section
10(b)(3) is negative, no indemnity will be due);
(5) Multiplying the result of section 10(b)(4) by the amount of
insurance for the unit for the respective combination of commodity type,
intended use, and age class of trees, to determine the value of all
damage; and
(6) Totaling all such results of section 10(b)(5) for all applicable
combinations of commodity types, intended uses, and age classes of trees
in the unit and subtracting any indemnities paid for the current crop
year to determine the amount payable for the unit. For example, assume a
55-acre unit sustains late season damage. No previous damage has
occurred on the unit during the crop year and no fruit has been
harvested. The producer elected the 75 percent coverage level and has a
100 percent share. The amount of insurance is $1,180 per acre, based on
the 75 percent coverage level, for the commodity type, intended use, and
age class of trees. The amount of potential production is 24,530 boxes
and the amount of damaged production is 17,171 boxes. The loss would be
calculated as follows:
1. 55 acres x $1,180 = $64,900 amount of insurance for the unit;
2. 17,171 / 24,530 = 70 percent average percent of damage;
3. 70 percent damage -25 percent deductible (100 percent -75
percent) = 45 percent;
4. 45 percent / 75 percent = 60 percent adjusted damage; and
5. 60 percent x $64,900 = $38,940 indemnity.
(c) Any individual citrus fruit will be considered 100 percent
damaged, if due to an insurable cause of loss it is:
(1) On the ground and unmarketable; or
(2) Unmarketable because it is immature, unwholesome, decomposed,
adulterated, or otherwise unfit for human consumption.
(d) Any citrus fruit that can be processed into products for human
consumption will be considered marketable. The percent of damage for the
marketable citrus fruit (excluding citrus fruit sold as fresh or damaged
due to uninsured causes) will be determined by:
(1) Subtracting the juice content of the marketable citrus fruit
(excluding citrus fruit sold as fresh or damaged due to uninsured
causes) from:
(i) The average juice content of the fruit produced on the unit for
the three previous crop years based on your records, if they are
acceptable to us; or
(ii) The default juice content provided in the Special Provisions,
if at least three years of acceptable juice records are not furnished or
the citrus fruit is insured as fresh;
(2) Subtracting the juice content of the marketable citrus fruit
(excluding citrus fruit sold as fresh or damaged due to uninsured
causes) from the official weight per box for the applicable commodity
type provided in the Special Provisions;
(3) Dividing the result of section 10(d)(1) by the result of
10(d)(2);
(4) Dividing the official weight per box for the applicable
commodity type provided in the Special Provisions by:
[[Page 187]]
(i) The average juice content of the fruit produced on the unit for
the three previous crop years based on your records, if they are
acceptable to us; or
(ii) The default juice content provided in the Special Provisions,
if at least three years of acceptable juice records are not furnished or
the citrus fruit is insured as fresh; and
(5) Multiplying the result of section 10(d)(3) by the result of
10(d)(4); and
(6) For citrus fruit insured as fresh that has a Fresh Fruit Factor
listed in the Special Provisions, making an additional adjustment to the
percent of damage by:
(i) Subtracting the result of section 10(d)(5) from 1;
(ii) Multiplying the result of section 10(d)(6)(i) by the applicable
Fresh Fruit Factor located in the Special Provisions; and
(iii) Adding the result of section 10(d)(6)(ii) to the result of
section 10(d)(5).
(e) Notwithstanding section 10(d), for citrus fruit insured as
fresh, unless otherwise provided in the Special Provisions, any
individual citrus fruit not meeting the applicable United States
Standards for packing as fresh fruit due to an insured cause of loss
will be considered 100 percent damaged, except that the percent of
damage for any production sold for an alternative use will be adjusted
in accordance with section 10(d).
11. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[73 FR 7196, Feb. 7, 2008; 73 FR 10973, Feb. 29, 2008, as amended at 77
FR 75519, Dec. 21, 2012; 78 FR 4305, Jan. 22, 2013; 78 FR 22411, Apr.
16, 2013]
Sec. 457.108 Sunflower seed crop insurance provisions.
The sunflower seed crop insurance provisions for the 2011 and
succeeding crop years are as follows:
Department of Agriculture
Federal Crop Insurance Corporation
Sunflower Seed Crop Provisions
1. Definitions
Harvest. Combining or threshing the sunflowers for seed.
Local market price. The cash seed price per pound for oil type
sunflower seed grading U.S. No. 2, or non-oil type sunflower seed with a
test weight of at least 22 pounds per bushel and less than five percent
(5%) kernel damage, offered by buyers in the area in which you normally
market the sunflower seed. The local market price for oil type sunflower
seed will reflect the maximum limits of quality deficiencies allowable
for the U.S. No. 2 grade of sunflower seed. Factors not associated with
grading of sunflower seed under the Official United States Standards for
Grain including, but not limited to, oil or moisture content will not be
considered.
Planted acreage. In addition to the definition contained in the
Basic Provisions, sunflower seed must initially be planted ini rows far
enough apart to permit mechanical cultivation, unless otherwise provided
by the Special Provisions, actuarial documents, or by written agreement.
2. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions, you must elect to insure your sunflowers with either revenue
protection or yield protection by the sales closing date.
3. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
4. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
5. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the oil and non-oil type sunflower seed in the
county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is planted for harvest as sunflower seed; and
(c) That is not (unless a written agreement allows otherwise):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
6. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage which does not meet the rotation
requirements shown in the Special Provisions; and
(b) Any acreage of the insured crop damaged before the final
planting date, to the extent that a majority of producers in the area
would not normally further care for the crop, must be replanted unless
we agree that it is not practical to replant.
7. Insurance Period
In accordance with the provisions of section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is
November 30, immediately following planting.
[[Page 188]]
8. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss which occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss
specified in sections 8(a) through (g) that also occurs during the
insurance period; or
(i) For revenue protection, a change in the harvest price from the
projected price, unless FCIC can prove the price change was the direct
result of an uninsured cause of loss specified in section 12(a) of the
Basic Provisions.
9. Replanting Payments
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that
limit the amount of a replant payment to the actual cost of replanting,
the amount of any replanting payment will be determined in accordance
with these Crop Provisions;
(2) Except as specified in section 9(a)(1), you must comply with all
requirements regarding replanting payments contained in section 13 of
the Basic Provisions; and
(3) The insured crop must be damaged by an insurable cause of loss
to the extent that the remaining stand will not produce at least 90
percent of the production guarantee for the acreage.
(b) Unless otherwise specified in the Special Provisions, the amount
of the replanting payment per acre will be the lesser of 20 percent of
the production guarantee or 175 pounds, multiplied by your projected
price, multiplied by your share.
(c) When the crop is replanted using a practice that is uninsurable
for an original planting, the liability for the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
(d) If the acreage is replanted to an insured crop type that is
different than the insured crop type originally planted on the acreage:
(1) The production guarantee, premium, and projected price and
harvest price, as applicable, will be adjusted based on the replanted
type;
(2) Replanting payments will be calculated using your projected
price and production guarantee for the crop type that is replanted and
insured; and
(3) A revised acreage report will be required to reflect the
replanted type, as applicable.
10. Duties in the Event of Damage or Loss
Representative samples are required in accordance with section 14 of
the Basic Provisions.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production that are acceptable to us
for any:
(1) Optional unit, we will combine all optional units for which
acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such
units in proportion to our liability on the harvested acreage for each
unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the number of insured acres by your respective:
(i) Yield protection guarantee (per acre) if you elected yield
protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue
protection;
(2) Totaling the results of section 11(b)(1)(i) or 11(b)(1)(ii),
whichever is applicable;
(3) Multiplying the production to count by your:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 11(b)(3)(i) or 11(b)(3)(ii),
whichever is applicable;
(5) Subtracting the result of section 11(b)(4) from the result of
section 11(b)(2); and
(6) Multiplying the result of section 11(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of sunflowers in the unit
with a production guarantee (per acre) of 1,250 pounds, your projected
price is $.11, your harvest price is $.12, and your production to count
is 54,000 pounds.
If you elected yield protection:
(1) 50 acres x (1,250 pound production guarantee x $.11 projected
price) = $6,875.00 value of the production guarantee
(3) 54,000 pound production to count x $.11 projected price =
$5,940.00 value of production to count
(5) $6,875.00 - $5,940.00 = $935.00
(6) $935.00 x 1.000 share = $935.00 indemnity; or
If you elected revenue protection:
(1) 50 acres x (1,250 pound production guarantee x $.12 harvest
price) = $7,500.00 revenue protection guarantee
[[Page 189]]
(3) 54,000 pound production to count x $.12 harvest price =
$6,480.00 value of the production to count
(5) $7,500.00 - $6,480.00 = $1,020.00
(6) $1,020.00 x 1.000 share = $1,020.00 indemnity.
(c) The total production to count (in pounds) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee,
and for revenue protection, not less than the amount of production that
when multiplied by the harvest price equals the revenue protection
guarantee (per acre) for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide records of production that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies and excess moisture in accordance with
subsection 11(d)); and
(iv) Potential production on insured acreage you want to put to
another use or you wish to abandon and no longer care for, if you and we
agree on the appraised amount of production. Upon such agreement, the
insurance period for that acreage will end if you put the acreage to
another use or abandon the crop. If agreement on the appraised amount of
production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us, (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count.); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature sunflower seed production may be adjusted for excess
moisture and quality deficiencies. If moisture adjustment is applicable,
it will be made prior to any adjustment for quality.
(1) Production will be reduced by 0.12 percent for each 0.1
percentage point of moisture in excess of ten percent (10%). We may
obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality result in:
(A) Oil type sunflower seed not meeting the grade requirements for
U.S. No. 2 (grades U.S. sample grade) because of test weight, kernel
damage (excluding heat damage), or a musty, sour or commercially
objectionable foreign odor; or
(B) Non-oil type sunflower seed having a test weight below 22 pounds
per bushel or kernel damage (excluding heat damage) in excess of five
percent (5%) or a musty, sour or commercially objectionable foreign
odor; or
(ii) Substances or conditions are present that are identified by the
Food and Drug Administration or other public health organizations of the
United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions, resulted from a
cause of loss against which insurance is provided under these crop
provisions and within the insurance period ;
(ii) All determinations of these deficiencies, substances, or
conditions are made using samples of the production obtained by us or by
a disinterested third party approved by us;
(iii) With regard to deficiencies in quality (except test weight,
which may be determined by our loss adjustor), the samples are analyzed
by:
(A) A grain grader licensed under the United States Grain Standards
Act or the United States Warehouse Act;
(B) A grain grader licensed under State law and employed by a
warehouse operator who has a storage agreement with the Commodity Credit
Corporation; or
(C) A grain grader not licensed under State law, but who is employed
by a warehouse operator who has a commodity storage agreement with the
Commodity Credit Corporation and is in compliance with State law
regarding warehouses; and
(iv) With regard to substances or conditions injurious to human or
animal health, the samples are analyzed by a laboratory approved by us.
(4) Sunflower seed production that is eligible for quality
adjustment, as specified in sections 11(d)(2) and (3), will be reduced
in accordance with quality adjustment factor provisions contained in the
Special Provisions.
(e) Any production harvested from plants growing in the insured crop
may be counted as production of the insured crop on a weight basis.
[[Page 190]]
12. Prevented Planting
Your prevented planting coverage will be 60 percent of your
production guarantee for timely planted acreage. If you have additional
coverage and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[59 FR 67136, Dec. 29, 1994, as amended at 60 FR 62727, Dec. 7, 1995; 62
FR 63633, Dec. 2, 1997; 62 FR 65166, Dec. 10, 1997; 67 FR 55690, Aug.
30, 2002; 75 FR 15879, 15880, Mar. 30, 2010]
Sec. 457.109 Sugar Beet Crop Insurance Provisions.
The Sugar Beet Crop Insurance Provisions for the 1998 and succeeding
crop years in countries with a contract change date of November 30, and
for the 1999 and succeeding crop years in countries with a contract
change date of April 30, are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Sugar Beet Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Crop year. In Imperial, Lassen, Modoc, Shasta and Siskiyou counties,
California and all other States, the period within which the sugar beets
are normally grown, which is designated by the calendar year in which
the sugar beets are normally harvested. In all other California
counties, the period from planting until the applicable date for the end
of the insurance period which is designated by:
(a) The calendar year in which planted if planted on or before July
15; or
(b) The following calendar year if planted after July 15.
Harvest. Topping and lifting of sugar beets in the field.
Initially planted. The first occurrence that land is considered as
planted acreage for the crop year.
Local market price. The price per pound for raw sugar offered by
buyers in the area in which you normally market the sugar beets.
Planted acreage. In addition to the definition contained in the
Basic Provisions, sugar beets must initially be planted in rows, unless
otherwise provided by the Special Provisions, actuarial documents, or by
written agreement.
Practical to replant. In lieu of the definition of ``Practical to
replant'' contained in section 1 of the Basic Provisions (Sec. 457.8),
practical to replant is defined as our determination, after loss or
damage to the insured crop, based on factors, including but not limited
to moisture availability, condition of the field, time to crop maturity,
and marketing window, that replanting the insured crop will allow the
crop to attain maturity prior to the calendar date for the end of the
insurance period. It will not be considered practical to replant if
production from the replanted acreage cannot be delivered under the
terms of the processor contract, or 30 days after the initial planting
date for all counties where a late planting period is not applicable,
unless replanting is generally occurring in the area.
Processor. Any business enterprise regularly engaged in processing
sugar beets for sugar that possesses all licenses and permits for
processing sugar beets required by the State in which it operates, and
that possesses facilities, or has contractual access to such facilities,
with enough equipment to accept and process the contracted sugar beets
within a reasonable amount of time after harvest.
Production guarantee (per acre):
(a) First stage production guarantee--The final stage production
guarantee multiplied by 60 percent.
(b) Final stage production guarantee--The number of tons determined
by multiplying the approved yield per acre by the coverage level
percentage you elect.
Raw sugar. Sugar that has not been extracted from the sugar beet.
Standardized ton. A ton of sugar beets containing the percentage of
raw sugar specified in the Special Provisions.
Sugar beet processor contract. A written contract between the
producer and the processor, containing at a minimum:
(1) The producer's commitment to plant and grow sugar beets, and to
deliver the sugar beet production to the processor;
(2) The processor's commitment to purchase the production stated in
the contract; and
(3) A price or formula for a price based on third party data that
will be paid to the producer for the production stated in the contract.
Thinning. The process of removing, either by machine or hand, a
portion of the sugar beet plants to attain a desired plant population.
Ton. Two thousand (2,000) pounds avoirdupois.
[[Page 191]]
2. Unit Division
In addition to the requirements of section 34 of the Basic
Provisions, basic units may be divided into optional units only if you
have a sugar beet processor contract that requires the processor to
accept all production from a number of acres specified in the sugar beet
processor contract. Acreage insured to fulfil a sugar beet contract
which provides that the processor will accept a designated amount of
production or a combination of acreage and production will not be
eligible for optional units.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3 (Insurance
Guarantees, Coverage Levels, and Prices for Determining Indemnities) of
the Basic Provisions (Sec. 457.8), you may select only one price
election for all the sugar beets in the county insured under this
policy.
(b) The production guarantees are progressive by stages, and
increase at specified intervals to the final stage. The stages are:
(1) First stage, with a guarantee of 60 percent (60%) of the final
stage production guarantee, extends from planting until:
(i) July 1 in Lassen, Modoc, Shasta and Siskiyou counties,
California and all other States except Arizona; and
(ii) The earlier of thinning or 90 days after planting in Arizona
and all other California counties.
(2) Final stage, with a guarantee of 100 percent (100%) of the final
stage production guarantee, applies to all insured sugar beets that
complete the first stage.
(c) The production guarantee will be expressed in standardized tons.
(d) Any acreage of sugar beets damaged in the first stage to the
extent that growers in the area would not normally further care for the
sugar beets will be deemed to have been destroyed, even though you may
continue to care for it. The production guarantee for such acreage will
not exceed the first stage production guarantee.
4. Contract Changes
In accordance with the provisions of section 4 (Contract Changes) of
the Basic Provisions, the contract change date is April 30 preceding the
cancellation date for counties with a July 15 or August 31 cancellation
date and November 30 (December 17 for the 1998 crop year only) preceding
the cancellation date for all other counties.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are:
------------------------------------------------------------------------
Termination
State and County Cancellation date date
------------------------------------------------------------------------
Arizona; and Imperial County, August 31................... August 31.
California.
All California counties, July 15..................... November
except Imperial, Lassen, 30.
Modoc, Shasta and Siskiyou.
All Other States, and Lassen, March 15.................... March 15.
Modoc, Shasta and Siskiyou
Counties, California.
------------------------------------------------------------------------
6. Annual Premium
In lieu of the premium computation method contained in section 7
(Annual Premium) of the Basic Provisions (Sec. 457.8), the annual
premium amount is computed by multiplying the final stage production
guarantee by the price election, the premium rate, the insured acreage,
your share at the time of planting, and any applicable premium
adjustment factors contained in the Actuarial Table.
7. Insured Crop
(a) In accordance with section 8 (Insured Crop) of the Basic
Provisions (Sec. 457.8), the crop insured will be all the sugar beets in
the county for which a premium rate is provided by the actuarial
documents:
(1) In which you have a share;
(2) That are planted for harvest as sugar beets;
(3) That are grown under a sugar beet processor contract executed
before the acreage reporting date and are not excluded from the
processor contract at any time during the crop year; and
(4) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Interplanted with another crop;
(ii) Planted into an established grass or legume; or
(iii) Planted prior to submitting a properly completed application.
(b) Sugar beet growers who are also processors may establish an
insurable interest if they meet the following requirements:
(1) The processor must meet the definition of a ``processor'' in
section 1 of these crop provisions and have a valid insurable interest
in the sugar beet crop;
(2) The Board of Directors or officers of the processor must have
duly promulgated a resolution that sets forth essentially the same terms
as a sugar beet processor contract. Such resolution will be considered a
sugar beet processing contract under the terms of the sugar beet crop
insurance policy;
(3) The sales records of the processor showing the amount of sugar
produced the previous year must be supplied to us to confirm the
processor has produced and sold sugar in the past; and
[[Page 192]]
(4) Our inspection of the processing facilities determines that they
conform to the definition of processor contained in section 1 of these
crop provisions.
8. Insurable Acreage
In addition to the provisions of section 9 (Insurable Acreage) of
the Basic Provisions (Sec. 457.8):
(a) We will not insure any acreage planted to sugar beets:
(1) The preceding crop year, unless otherwise specified in the
Special Provisions for the county;
(2) In any crop year following the discovery of rhizomania on the
acreage, unless allowed by the Special Provisions or by written
agreement; or
(3) That does not meet the rotation requirements shown in the
Special Provisions;
(b) Any acreage of the insured crop damaged before the final
planting date, (or within 30 days of initial planting for those counties
without a final planting date) to the extent that growers in the area
would normally not further care for the crop, must be replanted unless
we agree that replanting is not practical.
9. Insurance Period
(a) In accordance with the provisions of section 11 (Insurance
Period) of the Basic Provisions (Sec. 457.8), the calendar date for the
end of the insurance period is:
(1) July 15 in Arizona and in Imperial County, California;
(2) The last day of the 12th month after the insured crop was
initially planted in all California counties except Imperial, Lassen,
Modoc, Shasta and Siskiyou;
(3) October 31 in Lassen, Modoc, Shasta and Siskiyou Counties,
California, and in Klamath County, Oregon;
(4) November 25 in Ohio;
(5) December 31 in New Mexico and Texas; and
(6) November 15 in all other States and counties.
(b) In addition to the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8), regarding the end of the insurance
period, the insurance period ends for all units when the production
delivered to the processor equals the amount of production stated in the
sugar beet processor contract.
10. Causes of Loss
In accordance with the provisions of section 12 (Causes of Loss) of
the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
11. Replanting Payments
(a) In accordance with section 13 (Replanting Payment) of the Basic
Provisions (Sec. 457.8), a replanting payment is allowed if the crop is
damaged by an insurable cause of loss to the extent that the remaining
stand will not produce at least 90 percent (90%) of the final stage
production guarantee for the acreage and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be
the lesser of 10 percent (10%) of the final stage production guarantee
or one ton, multiplied by your price election, multiplied by your
insured share.
(c) When sugar beets are replanted using a practice that is
uninsurable for an original planting, our liability on the unit will be
reduced by the amount of the replanting payment. The premium amount will
not be reduced.
12. Duties in the Event of Damage or Loss
In accordance with the requirements of section 14 (Duties in the
Event of Damage or Loss) of the Basic Provisions (Sec. 457.8):
(a) Representative samples of the unharvested crop must be at least
10 feet wide and extend the entire length of each field in the unit. The
samples must not be harvested or destroyed until the earlier of our
inspection or 15 days after harvest of the balance of the unit is
completed; and
(b) You must provide a copy of your sugar beet processor contract or
corporate resolution if you are the processor.
13. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which acceptable production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim on any unit by:
(1) Multiplying the insured acreage by its respective production
guarantee;
[[Page 193]]
(2) Subtracting the total production to count from the result in
paragraph (b)(1);
(3) Multiplying the result of paragraph (b)(2) by your price
election; and
(4) Multiplying the result of paragraph (b)(3) by your share.
(c) The total production to count (in standardized tons) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records that
are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (unharvested production that is
appraised prior to the earliest delivery date that the processor accepts
harvested production will not be eligible for a conversion to
standardized tons in accordance with section 13 (d) and (e));
(iv) Only appraised production in excess of the difference between
the first and final stage production guarantee for acreage that does not
qualify for the final stage guarantee will be counted, except that all
production from acreage subject to section 13(c)(1) (i) and (ii) will be
counted; and
(v) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end if you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(d) Harvested production or unharvested production that is appraised
after the earliest delivery date that the processor accepts harvested
production and that meets the minimum acceptable standards contained in
the sugar beet processor contract or corporate resolution will be
converted to standardized tons by:
(1) Dividing the average percentage of raw sugar in such sugar beets
by the raw sugar content percentage shown in the Special Provisions; and
(2) Multiplying the result (rounded to three places) by the number
of tons of such sugar beets.
The average percentage of raw sugar will be determined from tests
performed by the processor at the time of delivery. If individual tests
of raw sugar content are not made at the time of delivery, the average
percent of raw sugar may be based on the results of previous tests
performed by the processor during the crop year if it is determined that
such results are representative of the total production. If not
representative, the average percent of raw sugar will equal the raw
sugar content percent shown in the Special Provisions.
(e) Harvested production or unharvested production that is appraised
after the earliest delivery date that the processor accepts harvested
production and that does not meet the minimum acceptable standards
contained in the sugar beet processor contract due to an insured peril
will be converted to standardized tons by:
(1) Dividing the gross dollar value of all of the damaged sugar
beets on the unit (including the value of cooperative stock, patronage
refunds, etc.) by the local market price per pound on the earlier of the
date such production is sold or the date of final inspection for the
unit;
(2) Dividing that result by 2,000; and
(3) Dividing that result by the county average raw sugar factor
contained in the Special Provisions for this purpose.
For example, assume that the total dollar value of the damaged sugar
beets is $6,000.00; the local market price is $0.10; and the county
average raw sugar factor is 0.15. The amount of production to count
would be calculated as follows: (($6,000.00 / $0.10) / 2,000) / 0.15 =
200 tons.
14. Late and Prevented Planting
The late planting provisions contained in section 16 of the Basic
Provisions are not applicable in California counties with a July 15,
cancellation date.
15. Prevented Planting
(a) The prevented planting provision contained in sectino 17 of the
Basic Provisions are not applicable in Califronia counties with a July
15, cancellation date.
[[Page 194]]
(b) Except in those counties indicated in section 15(a), your
prevented planting coverage will be 45 percent of your production
guarantee for timely planted acreage. If you have limited or additional
levels of coverage, as specified in 7 CFR part 400, subpart T, and pay
an additional premium, you may increase your prevented planting coverage
to a level specified in the actuarial documents.
[61 FR 58775, Nov. 19, 1996, as amended at 62 FR 63633, Dec. 2, 1997; 62
FR 65167, Dec. 10, 1997]
Sec. 457.110 Fig crop insurance provisions.
The Fig Crop Insurance Provisions for the 2001 and succeeding crop
years are as follows:
United States Department of Agriculture
Federal Crop Insurance Corporation
Fig Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Harvest. The picking of the figs from the trees or ground by hand or
machine for the purpose of removal from the orchard.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Manufacturing grade production. Production that meets the minimum
grade standards and is defined as ``manufacturing grade'' by the
Marketing Order for Dried Figs, as amended, which is in effect on the
date insurance attaches.
Marketable figs. Figs that grade manufacturing grade or better in
accordance with the Marketing Order for Dried Figs, as amended, which is
in effect on the date insurance attaches.
Substandard production. Production that does not meet minimum grade
standards and is defined as ``substandard'' by the Marketing Order for
Dried Figs, as amended, which is in effect on the date insurance
attaches.
2. Unit Division
(a) A basic unit, as defined in section 1 of the Basic Provisions,
will be divided into additional basic units by each fig type designated
in the Special Provisions.
(b) Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Optional units may be
established only if each optional unit is located on non-contiguous
land, unless otherwise allowed by written agreement.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements under section 3 of the Basic
Provisions, you may select only one price election for each fig type
designated in the Special Provisions and insured in the county under
this policy.
(b) You may not increase your elected or assigned coverage level or
the ratio of your price election to the maximum price election if a
cause of loss that could or would reduce the yield of the insured crop
has occurred prior to the time you request the increase.
(c) You must report, by the production reporting date designated in
section 3 of the Basic Provisions, by type if applicable:
(1) Any damage, removal of trees, change in practices, or any other
circumstance that may reduce the expected yield below the yield upon
which the insurance guarantee is based, and the number of affected
acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern;
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and anytime the planting pattern of such acreage
is changed, the age of the crop that is interplanted with the figs, and
type if applicable, and the planting pattern; and
(5) Any other information that we request in order to establish your
approved yield. We will reduce the yield used to establish your
production guarantee as necessary, based on our estimate of the effect
of the following: Interplanted perennial crop; removal of trees; damage;
change in practices and any other circumstance on the yield potential of
the insured crop. If you fail to notify us of any circumstance that may
reduce your yields from previous levels, we will reduce your production
guarantee as necessary at any time we become aware of the circumstance.
4. Contract Changes
The contract change date is October 31 preceding the cancellation
date (see the provisions under section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8)).
5. Cancellation and Termination Dates
The cancellation and termination dates are February 28.
6. Report of Acreage
By applying for fig crop insurance, you authorize us to have access
to and to determine or verify your production and acreage from
[[Page 195]]
records maintained by the California Fig Advisory Board and the fig
packer.
7. Insured Crop
The crop insured will be all the commercially grown dried figs that
are grown in the county on insurable acreage, and for which a premium
rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for harvest as dried figs;
(c) That are irrigated;
(d) That have reached the seventh growing season after being set
out; and
(e) For which acceptable production records for at least the
previous crop year are provided;
(f) That are not figs:
(1) Grown on acreage with less than 90 percent of a stand based on
the original planting pattern unless we agree, in writing, to insure
such figs;
(2) Which we inspect and consider not acceptable;
(3) Grown for the crop year the application is filed unless
inspected and accepted by us; or
(4) Grown on acreage acquired for the crop year unless such acreage
has been inspected and accepted by us.
8. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions, that
prohibit insurance attaching to a crop planted with another crop, figs
interplanted with another perennial crop are insurable unless we inspect
the acreage and determine that it does not meet the requirements
contained in your policy.
9. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) Coverage begins on March 1, except that for the year of
application, if your application is received after February 19 but prior
to March 1, insurance will attach on the 10th day after your properly
completed application is received in our local office, unless we inspect
the acreage during the 10 day period and determine that it does not meet
insurability requirements. You must provide any information that we
require for the crop or to determine the condition of the orchard.
(2) The calendar date for the end of the insurance period for each
crop year is October 31 or the date harvest of the figs (by type) should
have started on any acreage that will not be harvested (Exceptions, if
any, for specific counties or varieties or varietal group are contained
in the Special Provisions).
(b) Notwithstanding paragraph (a)(1) of this section, for each
subsequent crop year that the policy remains continuously in force,
coverage begins on the day immediately following the end of the
insurance period for the prior crop year. Policy cancellation that
results solely from transferring to a different insurance provider for a
subsequent crop year will not be considered a break in continuous
coverage.
(c) If your fig policy is canceled or terminated for any crop year,
in accordance with the terms of the policy, after insurance attached for
that crop year but on or before the cancellation and termination dates
whichever is later, insurance will not be considered to have attached
for that crop year and no premium, administrative fee, or indemnity will
be due for such crop year.
10. Causes of Loss
(a) In addition to the provisions under section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), any loss covered by this policy
must occur within the insurance period. The specific causes of loss for
figs are:
(1) Adverse weather conditions;
(2) Earthquake;
(3) Fire;
(4) Volcanic eruption;
(5) Wildlife; or
(6) Failure of the irrigation water supply.
(b) In addition to the causes of loss not insured against contained
in section 12 (Causes of Loss) of the Basic Provisions (Sec. 457.8), we
will not insure against:
(1) Any loss of production due to fire, where weeds and other forms
of undergrowth have not been controlled or tree pruning debris has not
been removed from the grove; or
(2) The inability to market the fruit as a direct result of
quarantine, boycott, or refusal of any entity to accept production.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production that are acceptable to us
for any:
(1) Optional unit, we will combine all optional units for which
acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such
units in proportion to our liability on the harvested acreage for each
unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by the production guarantee;
(2) Subtracting from this the total production to count;
(3) Multiplying the remainder by your price election; and
(4) Multiplying this result by your share.
(c) The total production (pounds) to count from all insurable
acreage on the unit will include all harvested and appraised marketable
figs.
[[Page 196]]
(1) Figs, which due to insurable causes, grade manufacturing grade
will be adjusted by:
(i) Dividing the value per pound of the manufacturing grade
production by the highest price election available for the insured type;
and
(ii) Multiplying the result (not to exceed 1) by the number of
pounds of such manufacturing grade production.
(2) Figs, which due to insurable causes, grade substandard and are
delivered to the substandard pool will not be considered production to
count, provided all the insured's substandard production is inspected by
us and we give written consent to such delivery prior to delivery. If we
do not give written consent prior to the delivery to the substandard
pool, all production will be counted as undamaged marketable production.
Substandard production for which we give written consent to you prior to
delivery to the substandard pool, which is not delivered to the
substandard pool, and is sold by you, will be considered production to
count and adjusted as follows:
(i) Dividing the value per pound received for such substandard
production by the highest price election available for the insured type;
and
(ii) Multiplying the result (not to exceed 1) by the number of
pounds of such substandard production.
(3) Appraised production to be counted will include:
(i) Potential production lost due to uninsured causes and failure to
follow recognized good fig farming practices;
(ii) Not less than the production guarantee for the figs on any
acreage:
(A) That is abandoned without our consent;
(B) Damaged solely by uninsured causes;
(c) If the figs are destroyed by you without our consent; or
(D) For which you fail to provide records of production that are
acceptable to us;
(iii) Unharvested production which would be marketable if harvested;
and
(iv) Potential production on insured acreage that you want to
abandon and no longer care for if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end if you abandon the crop. If agreement on the appraised
amount of production is not reached:
(A) We may require you to continue to care for the crop so that a
subsequent appraisal may be made or the crop harvested to determine
actual production. You must notify us within three days of the date
harvest should have started if the crop is not harvested; or
(B) You may elect to continue to care for the crop. We will
determine the amount of production to count for the acreage using the
harvested production or our reappraisal if the crop is not harvested.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[59 FR 9615, Mar. 1, 1994, as amended at 62 FR 65167, Dec. 10, 1997; 65
FR 47836, Aug. 4, 2000]
Sec. 457.111 Pear crop insurance provisions.
The Pear Crop Insurance Provisions for the 2011 and succeeding crop
years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Pear Crop Provisions
1. Definitions
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper, or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the field for the
purpose of picking all or a portion of the crop.
Harvest. The picking of mature pears from the trees or the
collecting of marketable pears from the ground.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Marketable. Pear production acceptable for processing or other human
consumption even if failing to meet any U.S. or applicable state grading
standard.
Ton. Two thousand (2,000) pounds avoirdupois.
Varietal group. Types of pears with similar characteristics that are
grouped for insurance purposes as specified in the Special Provisions.
2. Unit Division
(a) Provisions in the Basic Provision that allow optional units by
irrigated and non-irrigated practices are not applicable.
(b) Instead of establishing optional units by section, section
equivalents, or FSA farm serial number optional units may be established
if each optional unit is located on non-contiguous.
(c) In addition to, or instead of, establishing optional units by
section, section equivalents, FSA farm serial number, or on non-
contiguous land, optional units may be established by varietal group
when provided
[[Page 197]]
for in the Special Provisions. The requirements of section 34(b)(1) of
the Basic Provisions are not applicable for this method of unit
division.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 (Insurance Guarantees,
Coverage Levels, and Prices for Determining Indemnities) of the Basic
Provisions (Sec. 457.8):
(a) You may select only one price election for all the pears in the
county insured under this policy unless the Special Provisions provide
different price elections by varietal group, in which case you may
select one price election for each varietal group designated in the
Special Provisions. The price elections you choose for each varietal
group must have the same percentage relationship to the maximum price
offered by us for each varietal group. For example, if you choose one
hundred percent (100%) of the maximum price election for one varietal
group, you must also choose one hundred percent (100%) of the maximum
price election for all other varietal groups.
(b) You must report, by the production reporting date designated in
section 3 (Insurance Guarantees, Coverage Levels, and Prices for
Determining Indemnities) of the Basic Provisions (Sec. 457.8), by
varietal group:
(1) Any damage, removal of trees, change in practices or any other
circumstance that may reduce the expected yield below the yield upon
which the insurance guarantee is based, and the number of affected
acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and any time the planting pattern of such
acreage is changed:
(i) The age of the interplanted crop, and type if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your approved yield. We will reduce the yield used to establish your
production guarantee as necessary, based on our estimate of the effect
of the following: interplanted perennial crop; removal of trees; damage;
change in practices or any other circumstance on the yield potential of
the insured crop. If you fail to notify us of any circumstance that may
reduce your yields from previous levels, we will reduce your production
guarantee as necessary at any time that we become aware of the
circumstance.
(c) You may not increase your elected or assigned coverage level or
the ratio of your price election to the maximum price election if a
cause of loss that could or would reduce the yield of the insured crop
has occurred prior to the time that you request the increase.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is October 31
preceding the cancellation date for states with a January 31
cancellation date and August 31 preceding the cancellation date for all
other states.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are:
------------------------------------------------------------------------
Cancellation and termination
States dates
------------------------------------------------------------------------
California............................. January 31.
All other states....................... November 20.
------------------------------------------------------------------------
6. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), the crop insured will be all the pears in the county for
which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are of varieties adapted to the area;
(c) That are grown on trees that have produced an average of at
least five (5) tons of pears per acre in at least one of the four
previous crop years unless the Special Provisions or a written agreement
establishes a lower production level; and
(d) That are grown in an orchard that, if inspected, is considered
acceptable by us.
7. Insurable Acreage
In lieu of the provisions in section 9 (Insurable Acreage) of the
Basic Provisions (Sec. 457.8), that prohibit insurance attaching to a
crop planted with another crop, pears interplanted with another
perennial crop are insurable unless we inspect the acreage and determine
that it does not meet the requirements contained in your policy.
8. Insurance Period
(a) In accordance with the provisions of section 11 (Insurance
Period) of the Basic Provisions (Sec. 457.8):
(1) Coverage begins:
(i) In California, on February 1 of each crop year, except that for
the year of application, if your application is received after January
22 but prior to February 1, insurance will attach on the 10th day after
your properly completed application is received in our local office,
unless we inspect the acreage during the 10 day period and determine
that it does not meet insurability requirements.
[[Page 198]]
You must provide any information that we require for the crop or to
determine the condition of the orchard; or
(ii) In all other states, on November 21 of each crop year, except
that for the year of application, if your application is received after
November 11 but prior to November 21, insurance will attach on the 10th
day after your properly completed application is received in our local
office, unless we inspect the acreage during the 10 day period and
determine that it does not meet insurability requirements. You must
provide any information that we require for the crop or to determine the
condition of the orchard.
(2) The calendar date for the end of the insurance period for each
crop year is:
(i) September 15 for Bartlett (green and red) and Star Crimson
(Crimson Red) varietal groups; or
(ii) October 15 for all other varietal groups.
(b) In addition to the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable interest on any insurable
acreage of pears on or before the acreage reporting date of any crop
year, insurance will not be considered to have attached to, and no
premium will be due, and no indemnity paid, for such acreage for that
crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(c) Notwithstanding paragraph (a)(1) of this section, for each
subsequent crop year that the policy remains continuously in force,
coverage begins on the day immediately following the end of the
insurance period for the prior crop year. Policy cancellation that
results solely from transferring to a different insurance provider for a
subsequent crop year will not be considered a break in continuous
coverage.
(d) If your pear policy is canceled or terminated for any crop year,
in accordance with the terms of the policy, after insurance attached for
that crop year but on or before the cancellation and termination dates
whichever is later, insurance will not be considered to have attached
for that crop year and no premium, administrative fee, or indemnity will
be due for such crop year.
9. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the orchard;
(3) Earthquake;
(4) Volcanic eruption; or
(5) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against damage or loss of production due to:
(1) Disease or insect infestation, unless adverse weather:
(i) Prevents the proper application of control measures or causes
properly applied control measures to be ineffective; or
(ii) Causes disease or insect infestation for which no effective
control mechanism is available.
(2) Failure of the fruit to color properly; or
(3) Inability to market the pears for any reason other than actual
physical damage from an insurable cause specified in this section. For
example, we will not pay you an indemnity if you are unable to market
due to quarantine, boycott, or refusal of any person to accept
production.
10. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 (Duties in the Event
of Damage or Loss) of the Basic Provisions (Sec. 457.8), the following
will apply:
(a) You must notify us within 3 days of the date harvest should have
started if the crop will not be harvested.
(b) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing. We will conduct an appraisal
that will be used to determine your production to count for production
that is sold by direct marketing. If damage occurs after this appraisal,
we will conduct an additional appraisal. These appraisals, and any
acceptable records provided by you, will be used to determine your
production to count. Failure to give timely notice that production will
be sold by direct marketing will result in an appraised amount of
production to count of not less than the production guarantee per acre
if such failure results in our inability to make the required appraisal.
(c) If you intend to claim an indemnity on any unit, you must notify
us at least 15 days prior to the beginning of harvest if you previously
gave notice in accordance with section 14 of the Basic Provisions
(Sec. 457.8), so
[[Page 199]]
that we may inspect the damaged production. You must not sell or dispose
of the damaged crop until after we have given you written consent to do
so. If you fail to meet the requirements of this section, and such
failure results in our inability to inspect the damaged production, all
such production will be considered undamaged and included as production
to count.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate, acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each varietal group if
applicable, by its respective production guarantee;
(2) Multiplying the results of section 11(b)(1) by the respective
price election for each varietal group, if applicable;
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to be counted of each varietal
group, if applicable, by the respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting this result of section 11(b)(5) from the result of
section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share.
(c) The total production to count (in tons) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the
requirements contained in section 10;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us of further damage or that
harvest is general in the area unless you harvested the crop, in which
case we will use the harvested production. If you do not continue to
care for the crop, our appraisal made prior to deferring the claim will
be used to determine the production to count; and
(2) For all states except California, all harvested and appraised
marketable pear production from the insurable acreage.
(3) For California, all harvested and appraised production that:
(i) Meets the standards for first grade canning as defined by the
California Pear Advisory Board or for U.S. Number 1 as defined by the
United States Standards for Grades of Summer and Fall Pears, or Pears
for Processing, or for U.S. Extra Number 1 or U.S. Number 1 as defined
by the United States Standards for Grades of Winter Pears;
(ii) Is accepted by a processor for canning or packing; or
(iii) Is marketable for any purpose. However, if the pears are
damaged by an insured cause, the production to count will be reduced by
the greater of the following amounts:
(A) The excess over ten percent (10%) of pears that are size 180 or
smaller for varieties other than Forelle, Seckel or Winter Nelis; or
(B) The result of dividing the value per ton of such pears by the
highest price election for the insured varietal group, subtracting this
result from 1.000, and multiplying this difference (if positive) by the
number of tons of such pears.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
13. Pear Quality Adjustment Endorsement
(a) This endorsement applies to any crop year: Provided,
(1) The insured pears are located in a State other than California
and the actuarial documents designate a premium rate for this
endorsement;
(2) You have not elected to insure your pears under the Catastrophic
Risk Protection (CAT) Endorsement;
(3) You elected it on your application or other form approved by us,
and did so on or before the sales closing date for the initial crop year
for which you wish it to be effective. By doing so, you agreed to pay
the additional premium designated in the actuarial documents for this
optional coverage; and
(4) You or we did not cancel it in writing on or before the
cancellation date. Your election of CAT coverage for any crop year after
this endorsement is effective will be considered as notice of
cancellation by you.
(b) If the pear production is damaged by hail and if eleven percent
(11%) or more of the harvested and appraised production does not grade
at least U.S. No. 2 in accordance
[[Page 200]]
with applicable United States Standards for Grades of Summer and Fall
Pears, United States Standards for Grades of Winter Pears, or United
States Standards for Grades of Pears for Processing, as applicable, due
solely to hail, the amount of production to count will be reduced as
follows:
(1) By two percent (2%) for each full one percent (1%) in excess of
ten percent (10%), when eleven percent (11%) through sixty percent (60%)
of the pears fail the grade standard; or
(2) By one hundred percent (100%) when more than sixty percent (60%)
of the pears fail the grade standard.
The difference between the reduced production determined in section
13(b) and the total production will be considered as cull production.
(c) Pears that are knocked to the ground by wind or that are frozen
and cannot be packed or marketed as fresh pears will be considered one
hundred percent (100%) cull production.
(d) Marketable production that grades less than U.S. No. 2 due to
causes not covered by this endorsement will not be reduced.
(e) Fifteen percent (15%) of all production considered as cull
production in accordance with section 13 (b) and (c) will be production
to count.
[61 FR 57580, Nov. 7, 1996; 62 FR 2007, Jan. 15, 1997, as amended at 62
FR 65167, Dec. 10, 1997; 65 FR 47837, Aug. 4, 2000; 75 FR 15880, 15881,
Mar. 30, 2010]
Sec. 457.112 Hybrid sorghum seed crop insurance provisions.
The Hybrid Sorghum Seed Crop Insurance Provisions for the 1998 and
succeeding crop years are as follows:
FCIC policies:
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Hybrid Sorghum Seed Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows:
(1) The Catastrophic Risk Protection Endorsement, if applicable; (2)
the Special Provisions; (3) these Crop Provisions; and (4) the Basic
Provisions, (Sec. 457.8) with (1) controlling (2), etc.
1. Definitions
Adjusted yield. An amount determined by multiplying the county yield
by the coverage level factor.
Amount of insurance per acre. A dollar amount determined by
multiplying the adjusted yield by the price election you select and
subtracting any minimum guaranteed payment, not to exceed the total
compensation specified in the hybrid sorghum seed processor contract. If
your hybrid sorghum seed processor contract contains a minimum
guaranteed payment that is stated in bushels, we will convert that value
to dollars by multiplying it by the price election you selected.
Approved yield. In lieu of the definition contained in the Basic
Provisions, an amount FCIC determines to be representative of the yield
that the female parent plants are expected to produce when grown under a
specific production practice. FCIC will establish the approved yield
based upon records provided by the seed company and other information it
deems appropriate.
Bushel. Fifty-six pounds avoirdupois of the insured crop.
Certified seed test. A warm germination test performed on clean seed
according to specifications of the ``Rules for Testing Seeds'' of the
Association of Official Seed Analysts.
Commercial hybrid sorghum seed. The offspring produced by crossing a
male and female parent plant, each having a different genetic character.
This offspring is the product intended for use by an agricultural
producer to produce a commercial field sorghum crop for grain or forage.
County yield. An amount contained in the actuarial documents that is
established by FCIC to represent the yield that a producer of hybrid
sorghum seed would be expected to produce if the acreage had been
planted to commercial field sorghum.
Coverage level factor. A factor contained in the Special Provisions
to adjust the county yield for commercial field sorghum to reflect the
higher value of hybrid sorghum seed.
Dollar value per bushel. An amount that determines the value of any
seed production to count. It is determined by dividing the amount of
insurance per acre by the result of multiplying the approved yield by
the coverage level percentage, expressed as a decimal.
Female parent plants. Sorghum plants that are grown for the purpose
of producing commercial hybrid sorghum seed and are male sterile.
Field run. Commercial hybrid sorghum seed production before it has
been processed or screened.
Good farming practices. In addition to the definition contained in
the Basic Provisions, good farming practices include those practices
required by the hybrid sorghum seed processor contract.
Harvest. Combining, threshing or picking of the female parent plants
to obtain commercial hybrid sorghum seed.
[[Page 201]]
Hybrid sorghum seed processor contract. An agreement executed in
writing between the hybrid sorghum seed crop producer and a seed company
containing, at a minimum:
(a) The producer's promise to plant and grow male and female parent
plants, and to deliver all commercial hybrid sorghum seed produced from
such plants to the seed company;
(b) The seed company's promise to purchase the commercial hybrid
sorghum seed produced by the producer; and
(c) Either a fixed price per unit of measure (bushels,
hundredweight, etc.) of the commercial hybrid sorghum seed or a formula
to determine the value of such seed. Any formula for establishing the
value must be based on data provided by a public third party that
establishes or provides pricing information to the general public, based
on prices paid in the open market (e.g., commodity futures exchanges),
to be acceptable for the purpose of this policy.
Inadequate germination. Germination of less than 80 percent of the
commercial hybrid sorghum seed as determined by using a certified seed
test.
Insurable interest. Your share of the financial loss that occurs in
the event seed production is damaged by a cause of loss specified in
section 10.
Local market price. The cash price offered by buyers for any
production from the female parent plants that is not considered
commercial hybrid sorghum seed under the terms of this policy.
Male parent plants. Sorghum plants grown for the purpose of
pollinating female parent plants.
Minimum guaranteed payment. A minimum amount (usually stated in
dollars or bushels) specified in your hybrid sorghum seed processor
contract that will be paid or credited to you by the seed company
regardless of the quantity of seed produced.
Non-seed production. Production that does not qualify as seed
production because of inadequate germination.
Planted acreage. In addition to the definition contained in the
Basic Provisions, the insured crop must be planted in rows wide enough
to permit mechanical cultivation, unless provided by the Special
Provisions or by written agreement.
Planting pattern. The arrangement of the rows of the male and female
parent plants in a field. An example of a planting pattern is four
consecutive rows of female parent plants followed by two consecutive
rows of male parent plants.
Practical to replant. In addition to the definition contained in the
Basic Provisions, practical to replant applies to either the female or
male parent plant. It will not be considered practical to replant unless
production from the replanted acreage can be delivered under the terms
of the hybrid sorghum seed processor contract, or the seed company
agrees that it will accept the production from the replanted acreage.
Prevented planting. In addition to the definition contained in the
Basic Provisions, prevented planting applies to the female and male
parent plants. The male parent plants must be planted in accordance with
the requirements of the hybrid sorghum seed processor contract to be
considered planted.
Sample. For the purpose of the certified seed test, at least 3
pounds of randomly selected field run sorghum seed for each type or
variety of commercial hybrid sorghum seed grown on the unit.
Seed company. A business enterprise that possesses all licenses for
marketing commercial hybrid sorghum seed required by the state in which
it is domiciled or operates, and which possesses facilities with enough
storage and drying capacity to accept and process the insured crop
within a reasonable amount of time after harvest. If the seed company is
the insured, it must also be a corporation.
Seed production. All seed produced by female parent plants with a
germination rate of at least 80 percent as determined by a certified
seed test.
Type. Grain sorghum, forage sorghum, or sorghum sudan parent plants.
Variety. The name, number or code assigned to a specific genetic
cross by the seed company or the Special Provisions for the insured crop
in the county.
2. Unit Division
(a) For any processor contract that stipulates the amount of
production to be delivered:
(1) In lieu of the definition of ``basic unit'' contained in the
Basic Provisions, a basic unit will consist of all acreage planted to
the insured crop in the county that will be used to fulfill a hybrid
sorghum seed processor contract;
(2) There will be no more than one basic unit for all production
contracted with each processor contract;
(3) In accordance with section 12, all production from any basic
unit in excess of the amount under contract will be included as
production to count if such production is applied to any other basic
unit for which the contracted amount has not been fulfilled; and
(4) Optional units will not be established.
(b) For any processor contract that stipulates a number of acres to
be planted, the provisions in the Basic Provisions that allow optional
units by irrigated and non-irrigated practices are not applicable.
[[Page 202]]
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3 of the Basic
Provisions, you may select only one price election for all the hybrid
sorghum seed in the county insured under this policy unless the Special
Provisions provide different price elections by type or variety, in
which case you may elect one price election for each hybrid sorghum seed
type or variety designated in the Special Provisions. The price election
you choose for each type or variety must have the same percentage
relationship to the maximum price offered by us for each type or
variety. For example, if you choose 100 percent of the maximum price
election for one specific type or variety, you must also choose 100
percent of the maximum price election for all other types or varieties.
(b) The production reporting requirements contained in section 3 of
the Basic Provisions are not applicable to this contract.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
6. Report of Acreage
In addition to the requirements of section 6 of the Basic
Provisions, you must:
(a) Report by type and variety, the location and insurable acreage
of the insured crop;
(b) Report any acreage that is uninsured, including that portion of
the total acreage occupied by male parent plants; and
(c) Certify that you have a hybrid sorghum seed processor contract
and report the amount, if any, of any minimum guaranteed payment.
7. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the female parent plants in the county for which a
premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are grown under a hybrid sorghum seed processor contract
executed before the acreage reporting date;
(3) That are planted for harvest as commercial hybrid sorghum seed
in accordance with the requirements of the hybrid sorghum seed processor
contract and the production management practices of the seed company;
and
(4) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Planted with a mixture of female and male parent seed in the
same row;
(ii) Planted for any purpose other than for commercial hybrid
sorghum seed;
(iii) Interplanted with another crop; or
(iv) Planted into an established grass or legume.
(b) An instrument in the form of a ``lease'' under which you retain
control of the acreage on which the insured crop is grown and that
provides for delivery of the crop under substantially the same terms as
a hybrid sorghum seed processor contract will be treated as a contract
under which you have an insurable interest in the crop.
(c) A commercial hybrid sorghum seed producer who is also a
commercial hybrid sorghum seed company may be able to insure the hybrid
sorghum seed crop if the following requirements are met:
(1) The seed company has an insurable interest in the hybrid sorghum
seed crop;
(2) Prior to the sales closing date, the Board of Directors of the
seed company has executed and adopted a corporate resolution containing
the same terms as an acceptable hybrid sorghum seed processor contract.
This corporate resolution will be considered a contract under the terms
of this policy;
(3) Sales records for at least the previous years' seed production
must be provided to confirm that the seed company has produced and sold
seed. If such records are not available, the crop may be insured under
the Coarse Grains Crop Provisions with a written agreement; and
(4) Our inspection reveals that the storage and drying facilities
satisfy the definition of a seed company.
(d) Any of the insured crop that is under contract with different
seed companies may be insured under separate policies with different
insurance providers provided all acreage of the insured crop in the
county is insured. If you elect to insure the insured crop with
different insurance providers, you agree to pay separate administrative
fees for each insurance policy.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions,
we will not insure any acreage of the insured crop:
(a) Planted and occupied exclusively by male parent plants;
(b) Not in compliance with the rotation requirements contained in
the Special Provisions or, if applicable, required by the hybrid sorghum
seed processor contract; or
(c) If either the female or male parent plants are damaged before
the final planting date and we determine that insured crop is practical
to replant but it is not replanted.
[[Page 203]]
9. Insurance Period
(a) In addition to the provisions of section 11 of the Basic
Provisions, insurance attaches upon completion of planting of:
(1) The female parent plant seed on or before the final planting
date designated in the Special Provisions, except as allowed in section
16 of the Basic Provisions; and
(2) The male parent plant seed.
(b) In accordance with the provisions of section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is the
November 30 immediately following planting.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of
loss contained in section 10(a) (1) through (7) that occurs during the
insurance period.
(b) In addition to the causes of loss excluded by section 12 of the
Basic Provisions, we will not insure against any loss of production due
to:
(1) The use of unadapted, incompatible, or genetically deficient
male or female parent plant seed;
(2) Frost or freeze after the date set by the Special Provisions;
(3) Failure to follow the requirements stated in the hybrid sorghum
seed processor contract and production management practices of the seed
company;
(4) Inadequate germination, even if resulting from an insured cause
of loss, unless you have provided adequate notice as required by section
11(b)(1); or
(5) Failure to plant the male parent plant seed at a time or in a
manner sufficient to assure adequate pollination of the female parent
plants, unless you are prevented from planting the male parent plant
seed by an insured cause of loss.
11. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 of the Basic
Provisions, you must leave representative samples of at least one
complete planting pattern of the male and female parent plant rows that
extend the entire length of each field in the unit. If you are going to
destroy any acreage of the insured crop that will not be harvested, the
samples must not be destroyed until after our inspection.
(b) In addition to the requirements of section 14 of the Basic
Provisions:
(1) You must give us notice of probable loss at least 15 days before
the beginning of harvest if you anticipate inadequate germination on any
unit; and
(2) You must provide a completed copy of your hybrid sorghum seed
processor contract unless we have determined it has already been
provided by the seed company, and the seed company certifies that such
contract is used for all its producers without any waivers or
amendments.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) You will not receive an indemnity payment on a unit if the seed
company refuses to provide us with records we require to determine the
dollar value per bushel of production for each variety.
(c) In the event of loss or damage covered by this policy, we will
settle your claim on any unit by:
(1) Multiplying the insured acreage by its respective amount of
insurance per acre, by type and variety if applicable;
(2) Totaling the results of section 12(c)(1) if there are more than
one type or variety;
(3) Multiplying the total seed production to count (see section
12(d)) for each type and variety of commercial hybrid sorghum seed by
the applicable dollar value per bushel for that type or variety;
(4) Multiplying the total non-seed production to count (see section
12(e)) for each type and variety by the applicable local market price
determined on the earlier of the date the non-seed production is sold or
the date of final inspection;
(5) Totaling the results of sections 12(c)(3) and 12(c)(4) by type
and variety;
(6) Subtracting the result of section 12(c)(5) from the result of
section 12(c)(1) if there is only one type or variety, or subtracting
the result of 12(c)(5) from the result of section 12(c)(2) if there are
more than one type or variety; and
(7) Multiplying the result of section 12(c)(6) by your share.
For example:
[[Page 204]]
You have a 100 percent share in 50 acres insured for the development
of type ``A'' hybrid sorghum seed in the unit, with an amount of
insurance per acre guarantee of $361 (county yield of 170 bushels times
a coverage level factor of .867 for the 65 percent coverage level, times
a price election of $2.45 per bushel, minus the minimum guaranteed
payment of zero). Your seed production was 1,400 bushels and the dollar
value per bushel was $3.47. Your non-seed production was 100 bushels
with a local market value of $2.00 per bushel. Your indemnity would be
calculated as follows:
(1) 50 acres x $361 = $18,050 amount of insurance guarantee;
(3) 1,400 bushels x $3.47 = $4,858 value of seed production;
(4) 100 bushels of non-seed x $2.00 = $200 of non-seed production;
(5) $4,858 + $200 = $5,058;
(6) $18,050 - $5,058 = $12,992; and
(7) $12,992 x 100 percent share = $12,992 indemnity payment.
You also have a 100 percent share in 50 acres insured for the
development of type ``B'' hybrid sorghum seed in the unit, with an
amount of insurance per acre guarantee of $340 (county yield of 160
bushels times a coverage level factor of .867 for the 65 percent
coverage level, times a price election of $2.45 per bushel, minus the
minimum guaranteed payment of zero). You harvested 1,200 bushels and the
dollar value per bushel for the harvested amount was $4.63. You also
harvested 200 bushels of non-seed with a market value of $2.00 per
bushel. Your indemnity would be calculated as follows:
(1) 50 acres x $361 = $18,050 amount of insurance guarantee for type
``A'' and 50 acres x $340 = $17,000 amount of insurance guarantee for
type ``B'';
(2) $18,050 + $17,000 = $35,050 amount of insurance guarantee;
(3) 1,400 bushels x $3.47 = $4,858 value of seed production for type
``A'' and 1,200 bushels x $4.63 = $5,556 value of seed production for
type ``B'';
(4) 100 bushels of non-seedx$2.00 = $200 of non-seed production for
type ``A'' and 200 bushels of non-seed x $2.00 = $400 of non-seed
production for type ``B''
(5) $4,858 + $200 + $5,556 + $400 = $11,014 value of production to
count;
(6) $35,050 - $11,014 = $24,036; and
(7) $24,036 x 100 percent share = $24,036 indemnity payment.
(d) Production to be counted as seed production will include:
(1) All appraised production as follows:
(i) Not less than the amount of insurance per acre for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Mature unharvested production with a germination rate of at
least 80 percent of the commercial hybrid sorghum seed as determined by
a certified seed test. Any such production may be adjusted in accordance
with section 12(f);
(iv) Immature appraised production;
(v) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) Harvested production that you deliver as commercial hybrid
sorghum seed to the seed company stated in your hybrid sorghum seed
processor contract, regardless of quality, unless the production has
inadequate germination.
(e) Production to be counted as non-seed production will include all
harvested or mature appraised production that does not qualify as seed
production to count as specified in section 12(d). Any such production
may be adjusted in accordance with section 12(f).
(f) For the purpose of determining the quantity of mature
production:
(1) Commercial hybrid sorghum seed production will be:
(i) Increased 0.12 percent for each 0.1 percentage point of moisture
below 13.0 percent; or
(ii) Decreased 0.12 percent for each 0.1 percentage point of
moisture in excess of 13.0 percent.
(2) When records of commercial hybrid sorghum seed production
provided by the seed company have been adjusted to a basis of 13.0
[[Page 205]]
percent moisture and 56 pound avoirdupois bushels, section 12(f)(1)
above will not apply to harvested production. In such cases, records of
the seed company will be used to determine the amount of production to
count, provided that the moisture and weight of such production are
calculated on the same basis as that used to determine the approved
yield.
13. Prevented Planting
Your prevented planting coverage will be 60 percent of your amount
of insurance for timely planted acreage. If you have limited or
additional levels of coverage as specified in 7 CFR part 400, subpart T,
and pay an additional premium, you may increase your prevented planting
coverage to a level specified in the actuarial documents.
[62 FR 65318, Dec. 12, 1997]
Sec. 457.113 Coarse grains crop insurance provisions.
The coarse grains crop insurance provisions for the 2011 and
succeeding crop years are as follows:
United States Department of Agriculture
Federal Crop Insurance Corporation
Coarse Grains Crop Provisions
1. Definitions
Coarse grains. Corn, grain sorghum, and soybeans.
Grain sorghum. The crop defined as sorghum under the United States
Grain Standards Act.
Harvest. Combining, threshing, or picking the insured crop for
grain, or cutting for hay, silage, or fodder.
Local market price. The cash grain price per bushel for the U.S. No.
2 yellow corn, U.S. No. 2 grain sorghum, or U.S. No. 1 soybeans, offered
by buyers in the area in which you normally market the insured crop. The
local market price will reflect the maximum limits of quality
deficiencies allowable for the U.S. No. 2 grade for yellow corn and
grain sorghum, or U.S. No. 1 grade for soybeans. Factors not associated
with grading under the Official United States Standards for Grain,
including but not limited to protein and oil, will not be considered.
Planted acreage. In addition to the definition contained in the
Basic Provisions, coarse grains must initially be planted in rows,
unless otherwise provided by the Special Provisions, actuarial
documents, or by written agreement.
Production guarantee (per acre). In lieu of the definition contained
in the Basic Provisions, the number of bushels (tons for corn insured as
silage) determined by multiplying the approved yield per acre by the
coverage level percentage you elect.
Silage. A product that results from severing the plant from the land
and chopping it for the purpose of livestock feed.
Ton. Two thousand (2000) pounds avoirdupois.
2. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions, you must elect to insure your corn, grain sorghum, or
soybeans with either revenue protection or yield protection by the sales
closing date.
3. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
4. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
------------------------------------------------------------------------
Cancellation and
State and county termination dates
------------------------------------------------------------------------
(a) For corn and grain sorghum:
Val Verde, Edwards, Kerr, Kendall, Bexar, January 31.
Wilson, Karnes, Goliad, Victoria, and
Jackson Counties, Texas, and all Texas
counties lying south thereof.
El Paso, Hudspeth, Culberson, Reeves, February 15.
Loving, Winkler, Ector, Upton, Reagan,
Sterling, Coke, Tom Green, Concho,
McCulloch, San Saba, Mills, Hamilton,
Bosque, Johnson, Tarrant, Wise, Cooke
Counties, Texas, and all Texas counties
lying south and east thereof to and
including Terrell, Crockett, Sutton,
Kimble, Gillespie, Blanco, Comal,
Guadalupe, Gonzales, De Witt, Lavaca,
Colorado, Wharton, and Matagorda Counties,
Texas.
Alabama; Arizona; Arkansas; California; February 28.
Florida; Georgia; Louisiana; Mississippi;
Nevada; North Carolina; and South Carolina.
All other Texas counties and all other March 15.
states.
(b) For soybeans:
Jackson, Victoria, Goliad, Bee, Live Oak, January 31.
McMullen, LaSalle, and Dimmit Counties,
Texas and all Texas counties lying south
thereof.
[[Page 206]]
Alabama; Arizona; Arkansas; California; February 28.
Florida; Georgia; Louisiana; Mississippi;
Nevada; North Carolina; and South Carolina;
and El Paso, Hudspeth, Culberson, Reeves,
Loving, Winkler, Ector, Upton, Reagan,
Sterling, Coke, Tom Green, Concho,
McCulloch, San Saba, Mills, Hamilton,
Bosque, Johnson, Tarrant, Wise, Cooke
Counties, Texas, and all Texas counties
lying south and east thereof to and
including Maverick, Zavala, Frio, Atascosa,
Karnes, De Witt, Lavaca, Colorado, Wharton,
and Matagorda Counties, Texas.
All other Texas counties and all other March 15.
states.
------------------------------------------------------------------------
5. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be each coarse grain crop you elect to insure for which
premium rates are provided by the actuarial documents:
(1) In which you have a share;
(2) That is adapted to the area based on days to maturity and is
compatible with agronomic and weather conditions in the area; and
(3) That is not (unless allowed by the Special Provisions or by
written agreement):
(i) Interplanted with another crop except as allowed in section
5(b)(1); or
(ii) Planted into an established grass or legume.
(b) For corn only, in addition to the provisions of section 5(a),
the corn crop insured will be all corn that is:
(1) Planted for harvest either as grain or as silage (see section
5(c)). A mixture of corn and sorghum (grain or forage-type) will be
insured as corn silage if the sorghum does not constitute more than
twenty percent (20%) of the plants;
(2) Yellow dent or white corn, including mixed yellow and white,
waxy or high-lysine corn, high-oil corn blends containing mixtures of at
least 90 percent high yielding yellow dent female plants with high-oil
male pollinator plants, or commercial varieties of high-protein hybrids,
and excluding:
(i) High-amylose, high-oil or high-protein (except as authorized in
section 5(b)(2)), flint, flour, Indian, or blue corn, or a variety
genetically adapted to provide forage for wildlife or any other open
pollinated corn, unless a written agreement allows insurance of such
excluded crops.
(ii) A variety of corn adapted for silage use only when the corn is
reported for insurance as grain.
(c) For corn only, if the actuarial documents for the county provide
a premium rate for:
(1) Both grain and silage, all insurable acreage will be insured as
the type or types reported by you on or before the acreage reporting
date;
(2) Grain but not silage, all insurable acreage will be insured as
grain unless a written agreement allows insurance on all or a portion of
the insurable acreage as silage; or
(3) Silage but not grain, all insurable corn acreage will be insured
as silage unless a written agreement allows insurance on all or a
portion of the insurable acreage as grain.
(d) For grain sorghum only, in addition to the provisions of section
5(a), the grain sorghum crop insured will be all of the grain sorghum in
the county:
(1) That is planted for harvest as grain;
(2) That is a combine-type hybrid grain sorghum (grown from hybrid
seed); and
(3) That is not a dual-purpose type of grain sorghum (a type used
for both grain and forage), unless a written agreement allows insurance
of such grain sorghum.
(e) For soybeans only, in addition to the provisions of section
5(a), the soybean crop insured will be all of the soybeans in the county
that are planted for harvest as beans.
6. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions,
any acreage of the insured crop damaged before the final planting date,
to the extent that a majority of producers in the area would not
normally further care for the crop, must be replanted unless we agree
that it is not practical to replant.
7. Insurance Period
In accordance with the provisions of section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is the
date immediately following planting as follows:
(a) For corn insured as grain:
(1) Val Verde, Edwards, Kerr, Kendall, September 30.
Bexar, Wilson, Karnes, Goliad, Victoria,
and Jackson Counties, Texas, and all Texas
counties lying south thereof.
(2) Clark, Cowlitz, Grays Harbor, Island, October 31.
Jefferson, King, Kitsap, Lewis, Pierce,
Skagit, Snohomish, Thurston, Wahkiakum, and
Whatcom Counties, Washington.
(3) All other counties and states........... December 10.
[[Page 207]]
(b) For corn insured as silage:
(1) Connecticut, Delaware, Idaho, Maine, October 20.
Maryland, Massachusetts, New Hampshire, New
Jersey, New York, North Carolina, Oregon,
Pennsylvania, Rhode Island, Vermont,
Virginia, Washington, and West Virginia.
(2) All other states........................ September 30.
(c) For grain sorghum:
(1) Val Verde, Edwards, Kerr, Kendall, September 30.
Bexar, Wilson, Karnes, Goliad, Victoria,
and Jackson Counties, Texas, and all Texas
counties lying south thereof.
(2) All other Texas counties and all other December 10.
states.
(d) For soybeans: All states.................. December 10.
8. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss which occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss
specified in sections 8(a) through (g) that also occurs during the
insurance period; or
(i) For revenue protection, a change in the harvest price from the
projected price, unless FCIC can prove the price change was the direct
result of an uninsured cause of loss specified in section 12(a) of the
Basic Provisions.
9. Replanting Payments
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that
limit the amount of a replant payment to the actual cost of replanting,
the amount of any replanting payment will be determined in accordance
with these Crop Provisions;
(2) Except as specified in section 9(a)(1), you must comply with all
requirements regarding replanting payments contained in section 13 of
the Basic Provisions; and
(3) The insured crop must be damaged by an insurable cause of loss
to the extent that the remaining stand will not produce at least 90
percent of the production guarantee for the acreage.
(b) Unless otherwise specified in the Special Provisions, the amount
of the replanting payment per acre will be the lesser of 20 percent of
the production guarantee or the number of bushels (tons for corn insured
as silage) for the applicable crop specified below, multiplied by your
projected price, multiplied by your share:
(1) 8 bushels for corn grain;
(2) 1 ton for corn silage;
(3) 7 bushels for grain sorghum; and
(4) 3 bushels for soybeans.
(c) When the crop is replanted using a practice that is uninsurable
for an original planting, the liability on the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
(d) If the acreage is replanted to an insured crop type that is
different than the insured crop type originally planted on the acreage:
(1) The production guarantee, premium, and projected price and
harvest price, as applicable, will be adjusted based on the replanted
type;
(2) Replanting payments will be calculated using your projected
price and production guarantee for the crop type that is replanted and
insured; and
(3) A revised acreage report will be required to reflect the
replanted type, as applicable.
10. Duties in the Event of Damage or Loss
(a) Representative samples are required in accordance with section
14 of the Basic Provisions.
(b) For any corn unit that has separate dates for the end of the
insurance period (grain and silage), in lieu of the requirement
contained in section 14 of the Basic Provisions to provide notice within
72 hours of your initial discovery of damage (but not later than 15 days
after the end of the insurance period), you must provide notice within
72 hours of your initial discovery of damage (but not later than 15 days
after the latest end of the insurance period applicable to the unit).
(c) If you will harvest any acreage in a manner other than as you
reported it for coverage (e.g., you reported planting it to harvest as
grain but will harvest the acreage for silage, or you reported planting
it to harvest as silage but will harvest the acreage for grain), you
must notify us before harvest begins. Failure to timely provide notice
will result in production to count determined in accordance with section
11(c)(1)(i)(E).
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide
[[Page 208]]
records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which
acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such
units in proportion to our liability on the harvested acreage for each
unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the number of insured acres of each insured crop or
type, as applicable, by your respective:
(i) Yield protection guarantee (per acre) if you elected yield
protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue
protection;
(2) Totaling the results of section 11(b)(1)(i) or 11(b)(1)(ii),
whichever is applicable;
(3) Multiplying the production to count of each insured crop or
type, as applicable, by your respective:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 11(b)(3)(i) or 11(b)(3)(ii),
whichever is applicable;
(5) Subtracting the result of section 11(b)(4) from the result of
section 11(b)(2); and
(6) Multiplying the result of section 11(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of corn in the unit with a
production guarantee (per acre) of 115 bushels, your projected price is
$2.25, your harvest price is $2.20, and your production to count is
5,000 bushels.
If you elected yield protection:
(1) 50 acres x (115 bushel production guarantee x $2.25 projected
price) = $12,937.50 value of the production guarantee
(3) 5,000 bushel production to count x $2.25 projected price =
$11,250.00 value of the production to count
(5) $12,937.50 - $11,250.00 = $1,687.50
(6) $1,687.50 x 1.000 share = $1,688.00 indemnity; or
If you elected revenue protection:
(1) 50 acres x (115 bushel production guarantee x $2.25 projected
price) = $12,937.50 revenue protection guarantee
(3) 5,000 bushel production to count x $2.20 harvest price =
$11,000.00 value of the production to count
(5) $12,937.50 - $11,000.00 = $1,937.50
(6) $1,937.50 x 1.000 share = $1,938.00 indemnity.
(c) The total production to count (in bushels for corn insured as
grain or in tons for corn insured as silage) from all insurable acreage
on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee, or
for revenue protection, not less than the amount of production that when
multiplied by the harvest price equals the revenue protection guarantee
(per acre) for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes;
(D) For which you fail to provide records of production that are
acceptable to us; or
(E) For which you fail to give us notice before harvest begins if
you report planting the corn to harvest as grain but harvest it as
silage or you report planting the corn to harvest as silage but harvest
it as grain.
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies and excess moisture in accordance with
section 11(d)); and
(iv) Potential production on insured acreage you will put to another
use or abandon, if you and we agree on the appraised amount of
production. Upon such agreement the insurance period for that acreage
will end when you put the acreage to another use or abandon the crop. If
agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop we may give
you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature coarse grain production (excluding corn insured as
silage) may be adjusted for excess moisture and quality deficiencies. If
moisture adjustment is applicable it will be made prior to any
adjustment for quality. Corn insured as silage will be adjusted for
excess moisture and quality only as specified in section 11(e).
(1) Production will be reduced by 0.12 percent for each 0.1
percentage point of moisture in excess of:
(i) Fifteen percent (15%) for corn (If moisture exceeds 30 percent
(30%), production will be reduced 0.2 percent for each 0.1 percentage
point above 30 percent (30%));
[[Page 209]]
(ii) Fourteen percent (14%) for grain sorghum; and
(iii) Thirteen percent (13%) for soybeans.
We may obtain samples of the production to determine the moisture
content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality, in accordance with the Official United
States Standards for Grain, result in:
(A) Corn not meeting the grade requirements for U.S. No. 4 (grades
U.S. No. 5 or worse) because of test weight or kernel damage (excluding
heat damage) or having a musty, sour, or commercially objectionable
foreign odor;
(B) Grain sorghum not meeting the grade requirements for U.S. No. 4
(grades U.S. Sample grade) because of test weight or kernel damage
(excluding heat damage) or having a musty, sour, or commercially
objectionable foreign odor (except smut odor), or meets the special
grade requirements for smutty grain sorghum; or
(C) Soybeans not meeting the grade requirements for U.S. No. 4
(grades U.S. Sample grade) because of test weight or kernel damage
(excluding heat damage) or having a musty, sour, or commercially
objectionable foreign odor (except garlic odor), or which meet the
special grade requirements for garlicky soybeans; or
(ii) Substances or conditions are present that are identified by the
Food and Drug Administration or other public health organizations of the
United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a
cause of loss against which insurance is provided under these crop
provisions;
(ii) All determinations of these deficiencies, substances, or
conditions are made using samples of the production obtained by us or by
a disinterested third party approved by us;
(iii) With regard to deficiencies in quality (except test weight,
which may be determined by our loss adjuster), the samples are analyzed
by:
(A) A grain grader licensed under the United States Grain Standards
Act or the United States Warehouse Act;
(B) A grain grader licensed under State law and employed by a
warehouse operator who has a storage agreement with the Commodity Credit
Corporation; or
(C) A grain grader not licensed under State law, but who is employed
by a warehouse operator who has a commodity storage agreement with the
Commodity Credit Corporation and is in compliance with State law
regarding warehouses; and
(iv) With regard to substances or conditions injurious to human or
animal health, the samples are analyzed by a laboratory approved by us.
(4) Coarse grain production that is eligible for quality adjustment,
as specified in sections 11(d) (2) and (3), will be reduced by the
quality adjustment factor contained in the Special Provisions.
(e) For corn insured as silage:
(1) Whenever our appraisal of grain content is less than 4.5 bushels
of grain per ton of silage, the silage production will be reduced by 1
percentage point for each 0.1(1/10) of a bushel less than 4.5 bushels
per ton (If we cannot make a grain appraisal before harvest and you do
not leave a representative unharvested sample, in accordance with the
policy no reduction for grain-deficient silage will be made.); and
(2) If the normal silage harvesting period has ended, or for any
acreage harvested as silage or appraised as silage after the calendar
date for the end of the insurance period as specified in section 7(b),
we may increase the silage production to count to a 65 percent moisture
equivalent to reflect the normal moisture content of silage harvested
during the normal silage harvesting period.
(f) Any production harvested from plants growing in the insured crop
may be counted as production of the insured crop on a weight basis.
12. Prevented Planting
Your prevented planting coverage will be 60 percent of your
production guarantee for timely planted acreage. If you have additional
coverage and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[59 FR 49161, Sept. 27, 1994; 59 FR 60063, Nov. 22, 1994, as amended at
60 FR 62728, 62729, Dec. 7, 1995; 62 FR 63633, Dec. 2, 1997; 62 FR
65168, Dec. 10, 1997; 67 FR 55690, Aug. 30, 2002; 75 FR 15881, 15882,
15883, Mar. 30, 2010]
Sec. Sec. 457.114-457.115 [Reserved]
Sec. 457.116 Sugarcane crop insurance provisions.
The Sugarcane Crop Insurance Provisions for the 2011 and succeeding
crop years are as follows:
United States Department of Agriculture
Federal Crop Insurance Corporation
Sugarcane Crop Provisions
1. Definitions
Crop year. The period within which the insured sugarcane is normally
grown and designated by the calendar year in which the harvest of
sugarcane normally begins in the county.
[[Page 210]]
Harvest. Cutting and removing the mature sugarcane from the field.
Irrigated practice. A method of producing a crop by which water is
artificially applied during the growing season by appropriate systems
and at the proper times, with the intention of providing the quantity of
water needed to produce at least the yield used to establish the
irrigated production guarantee on the irrigated acreage planted to the
insured crop.
Local market price. The price per pound for raw sugar offered by
buyers in the area in which you normally market the sugarcane.
Plant cane. The insured crop which grows from seed planted for the
crop year.
Stubble cane. The insured crop which grows from the stubble of
sugarcane that was harvested the previous crop year.
Sugarcane. The grass, Saccharum officinarum, that is grown to
produce sugar.
2. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3 (Insurance
Guarantees, Coverage Levels, and Prices for Determining Indemnities) of
the Basic Provisions (Sec. 457.8), you may select only one price
election for all the sugarcane in the county insured under this policy.
(b) Instead of reporting your sugarcane production for the previous
crop year as required by subsection 3(f) of the Basic Provisions
(Sec. 457.8), there is a lag period of one year and you are required to
report production from two crop years previously, e.g., 1994 crop year
production must be reported by the required date for the 1996 crop year.
3. Contract Changes
In accordance with section 4 of the Basic Provisions (Sec. 457.8),
the contract change date is June 30 preceding the cancellation date.
4. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions (Sec. 457.8),
the cancellation and termination dates are September 30.
5. Insured Crop
(a) In accordance with section 8 of the Basic Provisions
(Sec. 457.8), the crop insured will be all the sugarcane in the county
for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That is grown for processing for sugar or for seed; and
(3) That is not interplanted with another crop, unless allowed by a
written agreement.
(b) In addition to the crop listed as not insured in section 8(b) of
the Basic Provisions (Sec. 457.8), we will not insure any sugarcane:
(1) That was damaged the previous crop year to the extent the
sugarcane is unable to produce the yield used to establish the
production guarantee for the unit for the current crop year; or
(2) That exceeds the age limitations (by variety, if applicable)
contained in the Special Provisions , unless we agree in writing to
insure such acreage. An agreement in writing will not be provided
unless, after an appraisal, we determine that the crop is able to
produce at least the yield used to establish the production guarantee
for the unit for the current crop year.
6. Insurable Acreage
Section 9(a)(2)(iv) of the Basic Provisions (Sec. 457.8), is not
applicable to the Sugarcane Crop Insurance Provisions.
7. Insurance Period
(a) In addition to the provisions of section 11 of the Basic
Provisions (Sec. 457.8), insurance attaches:
(1) On the later of the day we accept your application or at the
time of planting for plant cane;
(2) On the first day following harvest of the previous crop for
stubble cane except as contained in sections 7(a)(3) and (4);
(3) On the later of April 15 or 30 days following harvest of the
previous crop for stubble cane damaged during the previous crop year in
all states (except Louisiana); and
(4) On the later of April 30 or 30 days following harvest of the
previous crop for stubble cane damaged during the previous crop year in
Louisiana.
(b) In accordance with the provisions of section 11 of the Basic
Provisions (Sec. 457.8), the calendar date for the end of the insurance
period is:
(1) January 31 in Louisiana; and
(2) April 30 in all other states.
8. Causes of Loss
In accordance with the provisions of section 12 (Causes of Loss) of
the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if applicable, due to an
unavoidable cause of loss occurring within the insurance period.
[[Page 211]]
9. Duties in the Event of Damage or Loss or Cutting the Sugarcane for
Seed
(a) In addition to your duties under section 14 of the Basic
Provisions (Sec. 457.8), in the event of damage or loss:
(1) All sugarcane stubble must remain intact for our inspection; and
(2) You must give us notice at least 15 days before you begin
cutting any sugarcane for seed. Your notice must include the unit number
and the number of acres you intend to harvest as seed. Failure to give
us timely notice will cause the acreage cut for seed to be considered as
put to another use without consent. The production to count for such
acreage will not be less than the production guarantee.
(3) You must request an appraisal if any time during the crop year
sugarcane acreage cut for seed will not produce at least the production
guarantee so we can determine the production to count. If you do not
request an appraisal, the production to count for such acreage will be
the production guarantee.
(b) In accordance with the requirements of section 14 (Duties in the
Event of Damage or Loss) of the Basic Provisions (Sec. 457.8), if you
initially discover damage to any insured crop within 15 days of, or
during harvest, you must leave representative samples of the unharvested
crop for our inspection. The representative samples of the unharvested
crop must be at least 10 feet wide and extend the entire length of each
field in the unit. The stubble must not be destroyed and the required
samples must not be harvested until the earlier of our inspection or 15
days after harvest of the balance of the unit is completed.
10. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production:
(1) For any optional unit, we will combine all optional units for
which acceptable records of production were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim on any unit by:
(1) Multiplying the insured acreage by the production guarantee;
(2) Subtracting from this the total production to count;
(3) Multiplying the remainder by your price election; and
(4) Multiplying this result by your share.
Example 1: Assume you have a 100 percent share in a unit of 100
acres of sugarcane, an approved yield of 6,000 pounds of raw sugar per
acre, a coverage election of 65 percent, and a price election of $0.12 a
pound. The production guarantee would be 3,900 pounds of raw sugar per
acre (6,000 x 65%). Further assume that you are only able to harvest
200,000 pounds of raw sugar because the unit was damaged by an insurable
cause of loss. Your indemnity would be calculated as follows:
(1) 100 acres x 3,900 pound production guarantee = 390,000 pound
production guarantee;
(2) 390,000 pound production guarantee-200,000 pounds harvested
production = 190,000 pound production loss;
(3) 190,000 pound production loss x $0.12 price election = $22,800
loss; and
(4) $22,800 loss x 100 percent share = $22,800 indemnity payment.
Example 2: Assume the same set of facts. Also, assume that you cut
20 acres of this unit for seed without giving notice that you were
cutting this acreage for seed and that you are only able to harvest
200,000 pounds from the remaining 80 acres. Your indemnity would be
calculated as follows:
(1) 100 acres x 3,900 pound production guarantee = 390,000 pound
production guarantee;
(2) 390,000 pound production guarantee-278,000 (200,000 pounds
harvested production + 78,000 pounds production for putting acreage to
another use without consent, (20 acres x 3,900 pound production
guarantee per acre)) = 112,000 pound production loss;
(3) 112,000 pound production loss x $0.12 price election = $13,440
loss; and
(4) $13,440 loss x 100 percent share = $13,440 indemnity payment.
(c) The total production (pounds of sugar) to count from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes;
(D) For which you fail to provide records of production that are
acceptable to us; or
(E) On which the sugarcane stubble is destroyed within 15 days after
harvest is completed without our consent;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production;
(iv) Potential production on insured acreage harvested for seed (see
section 9(a)(3));
(v) Potential production on insured acreage you want to put to
another use or you wish to abandon and no longer care for, if you and we
agree on the appraised amount of production. Upon such agreement, the
insurance period for that acreage will end if you put the acreage to
another use or abandon the crop. If agreement on the appraised amount of
production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put
[[Page 212]]
the acreage to another use if you agree to leave intact, and provide
sufficient care for, representative samples of the crop in locations
acceptable to us. (The amount of production to count for such acreage
will be based on the harvested production or appraisals from the samples
at the time harvest should have occurred. If you do not leave the
required samples intact, or you fail to provide sufficient care for the
samples, our appraisal made prior to giving you consent to put the
acreage to another use will be used to determine the amount of
production to count.); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from insurable acreage. Final records
of sugar production will be used to determine the amount of production
to count. Preliminary mill estimates will not be used.
(d) Harvested sugarcane may be adjusted for low quality if it is
damaged by one or more freezes occurring within the insurance period to
the extent that it cannot be processed for sugar by the boiling house
operation. The amount of production to count for such sugarcane will be
determined by dividing the dollar value of the damaged production by the
local market price per pound for raw sugar. The prices used for this
adjustment will be determined on the earlier of the date such quality-
adjusted production is sold or the date of final inspection for the
unit.
11. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[60 FR 25602, May 12, 1995, as amended at 62 FR 65169, Dec. 10, 1997; 67
FR 46095, July 12, 2002; 67 FR 52841, Aug. 14, 2002; 75 FR 15883, Mar.
30, 20100]
Sec. 457.117 Forage production crop insurance provisions.
The Forage Production Crop Insurance Provisions for the 2001 and
succeeding crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Forage Production Crop Insurance Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Adequate stand. A population of live forage plants that equals or
exceeds the minimum required number of plants per square foot as shown
in the Special Provisions.
Air-dry forage. Forage that has dried in windrows by natural means
to less than 13 percent moisture before being put into stacks or bales.
Crop year. The period from the date insurance attaches until harvest
is normally completed, which is designated by the calendar year in which
the majority of the forage is normally harvested.
Cutting. The severance of the forage plant from its roots.
Direct marketing. Sale of the forage crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
shipper, buyer, or broker. An example of direct marketing is selling
directly to other producers.
Fall planted. A forage crop seeded after June 30.
Forage. Planted perennial alfalfa, perennial red clover, perennial
grasses, or a mixture thereof, or other species as shown in the
Actuarial Documents.
Harvest. Removal of forage from the windrow or field. Grazing will
not be considered harvested.
Spring planted. A forage crop seeded before July 1.
Ton. Two thousand (2,000) pounds avoirdupois.
Windrow. Forage that is cut and placed in a row.
Year of establishment. The period between seeding and when the
forage crop has developed an adequate stand. Insurance during the year
of establishment may be available under the forage seeding policy.
Insurance under this policy does not attach until after the year of
establishment. The year of establishment is determined by the date of
seeding. The year of establishment for spring planted forage is
designated by the calendar year in which seeding occurred. The year of
establishment for fall planted forage is designated by the calendar year
after the year in which the crop was planted.
2. Insurance Guarantees, Coverage Levels, and Prices for Determining
overage Levels, and Prices for Determining Indemnities
In addition to the requirements of section 3 (Insurance Guarantees,
Coverage Levels, and Prices for Determining Indemnities) of the Basic
Provisions (Sec. 457.8):
(a) You may only select one price election for all the forage in the
county insured under
[[Page 213]]
this policy unless the Special Provisions provide different price
elections by type, in which case you may select one price election for
each forage type designated in the Special Provisions. The price
elections you choose for each type must have the same percentage
relationship to the maximum price offered by us for each type. For
example, if you choose 100 percent of the maximum price election for a
specific type, you must also choose 100 percent of the maximum price
election for all other types.
(b) You must report the total production harvested from insurable
acreage for all cuttings for each unit by the production reporting date.
(c) Separate guarantees will be determined by forage type, as
applicable.
3. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is June 30 preceding
the cancellation date.
4. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
------------------------------------------------------------------------
State Cancellation/termination date
------------------------------------------------------------------------
California, Nevada and Utah.............. October 31;
All other states......................... September 30.
------------------------------------------------------------------------
5. Report of Acreage
In lieu of the provisions of section 6(a) of the Basic Provisions, a
report of all insured acreage of forage production must be submitted on
or before each forage production acreage reporting date specified in the
Special Provisions.
6. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the forage in the county for which a premium rate is
provided by the actuarial documents:
(1) In which you have a share; and
(2) That is grown during one or more years after the year of
establishment.
(b) In addition to the crop listed as not insured in section 8
(Insured Crop) of the Basic Provisions (Sec. 457.8), we will not insure
any forage that:
(1) Does not have an adequate stand at the beginning of the
insurance period;
(2) Is grown with a non-forage crop; or
(3) Exceeds the age limitations for forage stands contained in the
Special Provisions.
7. Insurance Period
In lieu of the provisions of section 11 (Insurance Period) of the
Basic Provisions (Sec. 457.8):
(a) Insurance attaches on acreage with an adequate stand on the
following dates:
(1) For the calendar year following the year of seeding for:
(i) Spring planted forage in Lassen, Modoc, Mono, Shasta and
Siskiyou Counties California, Colorado, Idaho, Nebraska, Nevada, Oregon,
Utah and Washington--April 15;
(ii) Spring planted forage in Iowa, Minnesota, Montana, New
Hampshire, New York, North Dakota, Pennsylvania, Wisconsin, Wyoming and
all other states--May 22;
(iii) Fall planted forage in Lassen, Modoc, Mono, Shasta and
Siskiyou Counties California, and all other states--October 16;
(iv) Fall planted forage in all California counties except Lassen,
Modoc, Mono, Shasta, and Siskiyou--December 1.
(2) For the calendar year of seeding for spring planted acreage in
all California counties except Lassen, Modoc, Mono, Shasta and
Siskiyou--December 1.
(3) For calendar years subsequent to the calendar year following the
year of seeding for:
(i) Lassen, Modoc, Mono, Shasta and Siskiyou California counties,
and all other states--October 16;
(ii) All California counties except Lassen, Modoc, Mono, Shasta and
Siskiyou--December 1.
(b) Insurance ends at the earliest of:
(1) Total destruction of the forage crop;
(2) Removal from the windrow or the field for each cutting;
(3) Final adjustment of a loss;
(4) The date grazing commences on the forage crop;
(5) Abandonment of the forage crop; or
(6) The following dates of the crop year:
(i) For Lassen, Modoc, Mono, Shasta, and Siskiyou Counties
California and all other states--October 15;
(ii) For all California counties except Lassen, Modoc, Mono, Shasta
and Siskiyou--November 30.
(c) In order to obtain year-round coverage for a calendar year, you
must purchase the Forage Production Winter Coverage Endorsement
(Sec. 457.127).
8. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
[[Page 214]]
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
(b) In addition to the causes of loss specifically excluded in
section 12 of the Basic Provisions, we will not insure against damage of
loss of production that occurs after removal from the windrow.
9. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 of the Basic
Provisions, the following will apply:
(a) You must notify us within 3 days of the date harvest should have
started if the insured crop will not be harvested;
(b) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing unless you have records
verifying that the forage was direct marketed. Failure to give timely
notice that production will be sold by direct marketing will result in
an appraised amount of production to count of not less than the
production guarantee per acre if such failure results in our inability
to make the required appraisal;
(c) If you intend to claim an indemnity on any unit, you must notify
us at least 15 days prior to the beginning of harvest if you previously
gave notice in accordance with section 14 of the Basic Provisions so
that we may inspect the damaged production. You must not destroy the
damaged crop until after we have given you written consent to do so. If
you fail to meet the requirements of this section, and such failure
results in our inability to inspect the damaged production, all such
production will be considered undamaged and will be included as
production to count; and
(d) You must notify us at least 5 days before grazing of insured
forage begins so we can conduct an appraisal to determine production to
count. Failure to give timely notice that the acreage will be grazed
will result in an appraised amount of production to count of not less
than the production guarantee per acre.
10. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each type, by its respective
production guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective
price election you selected;
(3) Totaling the results of each crop type in section 11(b)(2);
(4) Multiplying the total production to be counted of each type, if
applicable, (see section 11(c)) by the respective price election you
selected;
(5) Totaling the results of each crop type in section 11(b)(4);
(6) Subtracting the result in section 11(b)(5) from the result in
section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
Example 1
Assume you have a 100 percent share in 100 acres of type A forage in
the unit, with a guarantee of 3.0 tons per acre and a price election of
$65.00 per ton. Due to adverse weather you were only able to harvest
50.0 tons. Your indemnity would be calculated as follows:
1. 100 acres type A x 3 tons = 300 ton guarantee;
2 & 3. 300 tons x $65 price election = $19,500 total value
guarantee;
4 & 5. 50 tons production to count x $65 price election = $3,250
total value of production to count;
6. $19,500 value guarantee--$3,250 = $16,250 loss; and
7. $16,250 x 100 percent share = $16,250 indemnity payment.
Example 2
Assume you also have a 100 percent share in 100 acres of type B
forage in the same unit, with a guarantee of 1.0 ton per acre and a
price election of $50.00 per ton. Due to adverse weather you were only
able to harvest 5.0 tons. Your total indemnity for forage production for
both types A and B in the same unit would be calculated as follows:
1. 100 acres x 3 tons = 300 ton guarantee for type A; and 100 acres
x 1 ton = 100 ton guarantee for type B;
2. 300 ton guarantee x $65 price election = $19,500 total value of
the guarantee for type A; and 100 ton guarantee x $50 price election =
$5,000 total value of the guarantee for type B;
3. $19,500 + $5,000 = $24,500 total value of the guarantee;
4. 50 tons x $65 price election = $3,250 total value of production
to count for type A; and 5 tons x $50 price election = $250 total value
of production to count for type B;
[[Page 215]]
5. $3,250 + $250 = $ 3,500 total value of production to count for
types A and B;
6. $24,500--$3,500 = $21,000 loss; and
7. $21,000 loss x 100 percent share = $21,000 indemnity payment.
(c) The total production to count (in tons) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production;
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached
and:
(A) You do not elect to continue to care for the crop, we may give
you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(B) You elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(d) When forage is harvested as other than air-dry forage, the
production to count will be adjusted to the equivalent of air-dry
forage.
(e) Any harvested production from plants growing in the forage will
be counted as forage on a weight basis.
(f) In addition to the provisions of section 15 (Production Included
in Determining Indemnities) of the Basic Provisions (Sec. 457.8), we may
determine the amount of production of any unharvested forage on the
basis of our field appraisals conducted after the normal time for each
cutting for the area.
11. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 14285, Mar. 26, 1997, as amended at 62 FR 65169, Dec. 10, 1997;
65 FR 3783, Jan. 25, 2000; 65 FR 11457, Mar. 3, 2000]
Sec. 457.118 Malting barley price and quality endorsement.
The malting barley price and quality endorsement provisions for the
2011 and succeeding crop years are as follows:
FCIC policies
United States Department of Agriculture
Federal Crop Insurance Corporation.
Reinsured policies:
(Appropriate title for insurance provider).
Both FCIC and reinsured policies:
Small Grains Crop Insurance Malting Barley Price and Quality
Endorsement
(This is a continuous endorsement. Refer to section 2 of the Basic
Provisions.)
In return for your payment of premium for the coverage contained herein,
this endorsement will be attached to and made part of the Basic
Provisions and Small Grains Crop Provisions, subject to the terms and
conditions described herein.
1. Definitions
Additional value price. The value per bushel determined in
accordance with section 3 of Option A or section 3 of Option B, as
applicable.
Approved malting variety. A variety of barley specified in the
Special Provisions.
Brewery. A facility where malt beverages are commercially produced
for human consumption.
Contracted production. A quantity of barley the producer agrees to
grow and deliver, and the buyer agrees to accept, under the terms of the
malting barley contract.
Crop year. In addition to the definition in the Basic Provisions and
only for APH purposes under the terms of this endorsement, the period
within which the crop is actually grown and designated by the calendar
year in which the insured crop is normally harvested.
Licensed grain grader. A person authorized by the U.S. Department of
Agriculture to inspect and grade barley in accordance with the U.S.
Standards for malt barley.
Malt. A substance produced by germinating barley under controlled
conditions and then drying it.
Malt extract. A substance made by adding warm water to ground malt
and separating the liquid from the solid. In some cases, the
[[Page 216]]
liquid extract may be condensed or evaporated to a syrup or powder.
Malting barley contract. An agreement in writing:
(a) Between the producer and a brewery or a business enterprise that
produces or sells malt or malt extract to a brewery, or a business
enterprise owned by such brewery or business;
(b) That specifies the amount of contracted production, the purchase
price or a method to determine such price; and
(c) That establishes the obligations of each party to the agreement.
Malting barley price agreement. An agreement that meets all
conditions required for a malting barley contract except that it is
executed with a business enterprise that is not described in the
definition of a malting barley contract, but that normally contracts to
purchase malting barley production and has facilities appropriate to
handle and store malting barley production.
Objective test. A determination made by a qualified person using
standardized equipment that is widely used in the malting industry that
follows a procedure approved by the:
(a) American Society of Brewing Chemists when determining percent
germination;
(b) Federal Grain Inspection Service when determining quality
factors other than percent germination; or
(c) Food and Drug Administration (FDA) when determining
concentrations of mycotoxins or other substances or conditions
identified by the FDA as being injurious to human or animal health.
Subjective test. A determination:
(a) Made by a person using olfactory, visual, touch or feel,
masticatory, or other senses unless performed by a licensed grain
grader;
(b) That uses non-standardized equipment; or
(c) That does not follow a procedure approved by the American
Society of Brewing Chemists, the Federal Grain Inspection Service, or
the Food and Drug Administration.
2. This endorsement provides coverage for malting barley production
and quality losses at a price per bushel greater than that offered under
the Small Grains Crop Provisions.
3. You must have the Basic Provisions and the Small Grains Crop
Provisions in force to elect to insure malting barley under this
endorsement.
4. You must elect either Option A or Option B on or before the sales
closing date:
(a) No coverage will be provided under:
(1) Either Option A or Option B of this endorsement if you fail to
elect either Option A or Option B, or if you elect Option B but fail to
have a malting barley contract in effect by the acreage reporting date;
or
(2) Option B of this endorsement if you have not met the production
requirements specified in section 1(a) of Option B (in such case, you
will only have coverage under the Small Grains Crop Provisions unless
you elect coverage under Option A on or before the sales closing date);
(b) If you elect coverage under Option A, and subsequently enter
into a malting barley contract, your coverage will continue under the
terms of Option A;
(c) Your election (Option A or Option B) will continue from year to
year unless you cancel or change your election on or before the sales
closing date, or your coverage is otherwise canceled or terminated under
the terms of your policy; and
(d) In counties with both fall and spring sales closing dates, you
may elect this endorsement until the spring sales closing date only if
you do not have any fall planted acreage of approved malting barley
varieties.
5. All acreage in the county planted to approved malting varieties
that is insurable under the Small Grains Crop Provisions for feed barley
and your elected Option will be insured under this endorsement, except
any acreage on which you produce seed under the terms of the seed
contract.
6. In lieu of the definitions and provisions regarding units and
unit division in the Basic Provisions and the Small Grains Crop
Provisions, all malting barley acreage in the county insured under this
endorsement will be considered as one basic unit regardless of whether
such acreage is owned, rented for cash, or rented for a share of the
crop. Your shares in the malting barley acreage insured under this
endorsement must be designated separately on the acreage report. For
example, if you have 100 percent share in 50 acres and 75 percent share
in 10 acres you must list the 50 acres separately from the 10 acres on
your acreage report and include the percent share for each.
7. You must select a percentage of the additional value price on or
before the sales closing date (you can select only one percentage even
if more than one additional value price is applicable, and this
percentage must be 100 percent or less). In the event you choose a
percentage less than 100 percent of the additional value price, we will
multiply that percentage by the additional value price specified in
Option A or Option B, as applicable, to determine the additional value
price applicable to this endorsement.
8. The additional premium amount for this coverage will be
determined by multiplying your malting barley production guarantee (per
acre) by your additional value price, by the premium rate, by the
acreage planted to approved malting barley varieties, by your share at
the time coverage begins. The premium rate you pay will be adjusted by a
malting barley factor contained in the actuarial documents, as
applicable.
[[Page 217]]
9. In addition to the reporting requirements contained in section 6
of the Basic Provisions, you must provide all the information required
by the Option you elect.
10. In accordance with section 14 of the Basic Provisions:
(a) We will settle your claim within 30 days if all production:
(1) Meets the quality criteria specified in section 14(a)(2) of this
endorsement; or
(2) Grades U.S. No. 4 or worse in accordance with the grades and
grade requirements for the subclasses six-rowed and two-rowed barley, or
for the class barley in accordance with the Official United States
Standards for Grain; and
(3) Is not accepted by a buyer for malting purposes; or
(b) Whenever any production fails one or more of the quality
criteria specified in section 14(a)(2) of this endorsement and grades
U.S. No. 3 or better, we will not agree upon the amount of loss until
the earlier of:
(1) The date you sell, feed, donate, or otherwise utilize such
production for any purpose; or
(2) May 31 of the calendar year immediately following the calendar
year in which the insured malting barley is normally harvested. If you
still retain any insured production on or after this date, we will:
(i) Defer completion of your claim if you agree to such deferment;
or
(ii) If you do not agree to defer your claim, we will complete your
claim; however, no adjustment for quality deficiencies will be made and
all remaining unsold insured production will be considered to have met
the quality standards specified in this endorsement.
11. This endorsement for malting barley does not provide prevented
planting coverage. Such coverage is only provided in accordance with the
provisions of the Small Grains Crop Provisions for feed barley.
12. Production from all acreage insured under this endorsement and
any production of feed barley varieties must not be commingled prior to
our making all determinations under section 14. Failure to keep
production separate as required herein will result in denial of your
claim for indemnity.
13. In the event of loss or damage covered by this endorsement, we
will settle your claim by:
(a) Multiplying the insured acreage by your malting barley
production guarantee (per acre) determined in accordance with section 2
of Option A or Option B, as applicable;
(b) Multiplying the result in section 13(a) by your respective
additional value price per bushel;
(c) Multiplying the number of bushels of production to count
determined in accordance with section 14 by your additional value price
per bushel (If more than one additional value price is applicable, the
highest additional value price will be used until the number of bushels
covered at the higher additional value price is reached and the
remainder of the production will be multiplied by the lower additional
value price. For example, if variety A is grown under a malting barley
price agreement and 1000 bushels of variety A are insured using an
additional value price of $0.68 per bushel but only 500 bushels of
variety A are produced, the 500 bushels would be valued at $0.68 per
bushel and all other production of other varieties will be valued at the
lower additional value price unless such production is acceptable under
the terms of the malting barley price agreement, in which case 500
bushels of the other varieties would also be valued at $0.68 per
bushel);
(d) Subtracting the result of section 13(c) from the result in
section 13(b); and
(e) Multiplying the result of section 13(d) by your share.
14. The amount of production to be counted against your malting
barley production guarantee will be determined as follows:
(a) Production to count will include all:
(1) Appraised production determined in accordance with sections
11(c)(1)(i), (ii) and (iv) of the Small Grains Crop Provisions;
(2) Harvested production and unharvested production that meets, or
would meet if properly handled, either the acceptable percentage or
parts per million standard contained in any applicable malting barley
contract or malting barley price agreement for protein, plump kernels,
thin kernels, germination, blight damaged, injured by mold, mold
damaged, injured by sprout, injured by frost, frost damaged, and
mycotoxins or other substances or conditions identified by the Food and
Drug Administration or other public health organizations of the United
States as being injurious to human health, or the following quality
standards (additional or different quality standards may be specified or
made available in the Special Provisions), whichever is less stringent:
----------------------------------------------------------------------------------------------------------------
Six-rowed Malting
Barley Two-rowed Malting Barley
----------------------------------------------------------------------------------------------------------------
Protein (dry basis)................ 14.0% maximum........ 13.5% maximum.
Plump kernels...................... 65.0% minimum........ 75.0% minimum.
Thin kernels....................... 10.0% maximum........ 10.0% maximum.
Germination........................ 95.0% minimum........ 95.0% minimum.
Blight damaged..................... 4.0% maximum......... 4.0% maximum.
Injured by mold.................... 5.0% maximum......... 5.0% maximum.
Mold damaged....................... 0.4% maximum......... 0.4% maximum.
[[Page 218]]
Injured by sprout.................. 1.0% maximum......... 1.0% maximum.
Injured by frost................... 5.0% maximum......... 5.0% maximum.
Frost damaged...................... 0.4% maximum......... 0.4% maximum.
Mycotoxins......................... 2.0 ppm maximum...... 2.0 ppm maximum.
----------------------------------------------------------------------------------------------------------------
(3) Harvested production that does not meet the quality standards
contained in section 14(a)(2), but is accepted by a buyer. If the price
received is less than the total of the additional value price and the
feed barley projected price announced by FCIC, the production to count
may be reduced or the values used to settle the claim may be adjusted in
accordance with sections 14(b), (c), and (d).
(b) For the quantity of production that qualifies under section
14(a)(3), the amount of production to count will be determined by:
(1) Subtracting the projected price for feed barley from the sale
price per bushel of the damaged production (If the sale price is less
than the market value of the damaged production, the sale price will be
the market value);
(2) Subtracting the weighted average cost per bushel for
conditioning the production, if any, (not to exceed the discount you
would have received had you sold the barley without conditioning, for
example, if the price per bushel of the production without conditioning
is $2.80 and the price for such production after conditioning is $2.90,
the discount is $0.10 and the cost of conditioning can not exceed $0.10
per bushel) from the result of section 14(b)(1);
(3) Dividing the result of section 14(b)(1) or (2), as applicable,
by 100 percent of the additional value price (The weighted average
additional value price will be used in the event more than one
additional value price is applicable, for example, if 1000 bushels of
variety A are insured with an additional value price of $0.68 and 500
bushels are insured with an additional value price of $0.40, the
weighted average additional value price would be $0.59); and
(4) Multiplying the result of section 14(b)(3) (if less than zero,
no production will be counted; or, if more than 1.000, no adjustment
will be made) by the number of bushels of damaged production.
(c) No reduction in the amount of production to count will be
allowed for:
(1) Moisture content;
(2) Damage due to uninsured causes;
(3) Costs or reduced value associated with drying, handling,
processing, or quality factors other than those contained in section
14(a)(2); or
(4) Any other costs associated with normal handling and marketing of
malting barley.
(d) All grade and quality determinations must be based on the
results of objective tests. No indemnity will be paid for any loss
established by subjective tests. We may obtain one or more samples of
the insured crop and have tests performed at an official grain
inspection location established under the U.S. Grain Standards Act or
laboratory of our choice to verify the results of any test. In the event
of a conflict in the test results, our results will determine the amount
of production to count.
OPTION A (FOR MALTING BARLEY PRODUCTION, REGARDLESS OF WHETHER GROWN
UNDER A MALTING BARLEY CONTRACT OR PRICE AGREEMENT)
1. To be eligible for coverage under this option:
(a) You must provide us with acceptable records of your sales of
malting barley and the number of acres planted to malting varieties for
at least the four crop years in your APH database prior to the crop year
immediately preceding the current crop year (for example, to determine
your production guarantee for the 2011 crop year, records must be
provided for the 2006 through the 2009 crop years, if malting barley
varieties were planted in each of those crop years);
(1) Failure to provide acceptable records or reports as required
herein will make you ineligible for coverage under this endorsement; and
(2) You must provide these records to us no later than the
production reporting date specified in the Basic Provisions; and
(b) If you produce malting barley under a malting barley contract or
malting barley price agreement, you must provide us with a copy of your
current crop year contract or agreement on or before the acreage
reporting date if you want the additional value price based on such
contract or price agreement. All terms and conditions of the contract or
agreement, including the contract price or future contract price, must
be specified in the contract or agreement and be effective on or before
the acreage reporting date.
2. Your malting barley production guarantee (per acre) will be the
lesser of:
(a) The production guarantee (per acre) for feed barley for acreage
planted to approved malting varieties calculated in accordance with the
Basic Provisions; or
(b) A yield per acre calculated by:
(1) Dividing the number of bushels of malting barley sold each year
by the number of acres planted to approved malting barley varieties in
each respective year;
(2) Adding the results of section 2(b)(1);
[[Page 219]]
(3) Dividing the result of section 2(b)(2) by the number of years
approved malting barley varieties were planted; and
(4) Multiplying the result of section 2(b)(3) by your coverage
level.
3. The additional value price per bushel will be determined as
follows:
(a) For production grown under a malting barley contract or a
malting barley price agreement, the additional value price per bushel
will be the following amount, as applicable:
(1) The sale price per bushel established in the malting barley
contract or malting barley price agreement (not including discounts or
incentives that may apply) minus the projected price for barley;
(2) The amount per bushel for malting barley (not including
discounts or incentives that may apply) above a feed barley price that
is determined at a later date, provided the method of determining the
price is specified in the malting barley contract or malting barley
price agreement; or
(3) If your malting barley contract or malting barley price
agreement has a variable price option, you must select a price or a
method of determining a price that will be treated as the sale price and
your additional value price per bushel will be calculated under section
3(a)(1) or (2), as applicable.
(b) The additional value price per bushel designated in the
actuarial documents will be used if:
(1) Production is not grown under a malting barley contract or
malting barley price agreement; or
(2) The malting barley contract or malting barley price agreement is
not provided to us by the acreage reporting date.
(c) Under no circumstances will the additional value price exceed
$1.25 per bushel.
(d) The number of bushels eligible for coverage using an additional
value price determined in section 3(a) will be the lesser of:
(1) The amount determined by multiplying the number of acres planted
to an approved malting barley variety by your malting barley production
guarantee (per acre) determined in accordance with section 2; or
(2) The amount determined by multiplying the number of bushels
specified in the malting barley contract or malting barley price
agreement by your coverage level.
(e) Under no circumstances will the number of bushels determined in
section 3(d) that will receive an additional value price determined in
accordance with section 3(a) exceed the amount determined by multiplying
125 percent of the greatest number of acres that you certified for
malting barley APH purposes in any crop year contained in your malting
barley APH database by your malting barley production guarantee (per
acre) determined in accordance with section 2. Any bushels in excess of
this amount will be insured using the additional value price designated
in the actuarial documents.
4. Loss Example
In accordance with section 13, your loss will be calculated as
follows:
(a) Assume the following:
(1) A producer has:
(i) 400 acres of barley insured under the Small Grains Crop
Provisions, of which 200 acres are planted to feed barley and 200 acres
are planted to an approved malting barley variety;
(ii) 100 percent share;
(iii) A feed barley approved yield of 55 bushels per acre;
(iv) A malting barley approved yield, based on malting barley sales
records and the number of acres planted to approved malting barley
varieties, of 52 bushels per acre;
(v) Selected the 75 percent coverage level; and
(vi) Provided a malting barley price agreement by the acreage
reporting date for the sale of 5,720 bushels at $2.72 per bushel;
(2) The projected price for feed barley is $1.92 per bushel;
(3) The additional value price per bushel from the actuarial
documents is $0.40;
(4) In accordance with section 3(a)(1), the additional value price
per bushel for production grown under a malting barley price agreement
is $0.80 ($2.72 malting barley price agreement price minus $1.92
projected price); and
(5) The total production from the 200 acres of malting barley is
7,250 bushels, all of which fails to meet the quality standards
specified in section 14(a) and in the malting barley price agreement:
(i) 4,750 bushels are sold for $2.31 per bushel; and
(ii) After conditioning at a cost of $0.05 per bushel, an additional
2,500 bushels are sold for $2.20 per bushel;
(b) The amount of insurance protection is determined as follows:
(1) 4,290 bushels eligible for coverage using the additional value
price from the malting barley price agreement [the lesser of 4,290
bushels (5,720 bushels grown under a malting barley price agreement x
.75 coverage level) or 7,800 bushels (200 acres planted to approved
malting barley varieties x 39.0 bushel per acre (52 bushels per acre
malting barley approved yield x .75 coverage level) malting barley
production guarantee)] x $0.80 additional value price = $3,432.00 amount
of insurance protection for the bushels grown under the malting barley
price agreement;
(2) 3,510 bushels eligible for coverage using the additional value
price from the actuarial documents (7,800 bushel total malting barley
production guarantee - 4,290 bushels covered using the additional value
price from the
[[Page 220]]
malting barley price agreement) x $0.40 additional value price =
$1,404.00 amount of insurance protection for the bushels not grown under
a malting barley price agreement; and
(3) $3,432.00 + $1,404.00 = $4,836.00 total amount of insurance
protection for the unit;
(c) In accordance with section 14, the total amount of production to
count is determined as follows:
(1) Damaged production that is not reconditioned:
(i) $2.31 price per bushel - $1.92 projected price for feed barley =
$0.39;
(ii) $0.39 / $0.62 weighted average additional value price
($4,836.00 total insurance protection / 7,800 bushel production
guarantee = $0.62 weighted average additional value price) = 0.63; and
(iii) 0.63 x 4,750 bushels of damaged production sold at $2.31 =
2,993 bushels of production to count;
(2) Damaged production that is reconditioned:
(i) $2.20 price per bushel - $1.92 projected price for feed barley =
$0.28;
(ii) $0.28 - $0.05 reconditioning cost = $0.23;
(iii) $0.23 / $0.62 weighted average additional value price = 0.37;
and
(iv) 0.37 x 2,500 bushels of damaged production sold at $2.20 = 925
bushels of production to count; and
(3) Total production to count is 3,918 bushels (2,993 + 925);
(d) The value of production to count is $3,134.00 (3,918 bushels x
$0.80 additional value price (all production to count is valued at the
higher additional value price since the amount of production to count
did not exceed the number of bushels covered at the higher additional
value price)); and
(e) The indemnity amount is $1,702.00 ($4,836.00 total amount of
insurance protection for the unit - $3,134.00 value of production to
count).
OPTION B (FOR PRODUCTION GROWN UNDER MALTING BARLEY CONTRACTS ONLY)
1. To be eligible for coverage under this option:
(a) On or before the sales closing date, for at least one of the
three crop years you planted malting barley immediately preceding the
previous crop year:
(1) You must have had a malting barley contract and produced and
sold at least 75 percent of the contracted amount for the crop year such
contract was applicable, or such other amount specified in the Special
Provisions (e.g., if you wish to insure 2011 crop year malting barley
and you had a malting barley contract to produce 10,000 bushels in 2009,
you must have produced and sold at least 7,500 bushels of 2009 crop year
malting barley production); and
(2) You must provide us a copy of your prior malting barley contract
and acceptable records of sales of malting barley required to establish
compliance with section 1(a)(1) of Option B;
(b) The maximum amount of production that may be insured under
Option B will be limited to the lesser of the amount of malting barley
contained in the current crop year's malting barley contract or 200
percent of the amount contracted for the crop year used to demonstrate
compliance with section 1(a)(1) of Option B; and
(c) On or before the acreage reporting date, you must provide us
with a copy of your malting barley contract for the current crop year:
(1) All terms and conditions of the contract, including the contract
price or method to determine the price, must be specified in the
contract and be effective on or before the acreage reporting date;
(2) If you fail to timely provide the contract, or any terms are
omitted, we may elect to determine the relevant information necessary
for insurance under Option B, or deny liability; and
(3) Only contracted production or acreage is covered by Option B.
2. Your malting barley production guarantee (per acre) will be the
lesser of:
(a) The production guarantee (per acre) for feed barley for acreage
planted to approved malting barley varieties calculated in accordance
with the Basic Provisions; or
(b) A yield per acre calculated by:
(1) Dividing the number of bushels of contracted production by the
number of acres planted to approved malting varieties in the current
crop year; and
(2) Multiplying the result of section 2(b)(1) by the coverage level
percentage you elected under the Small Grains Crop Provisions.
3. The additional value price per bushel will be the following
amount, as applicable:
(a) The sale price per bushel established in the malting barley
contract (without regard to discounts or incentives that may apply)
minus the projected price for feed barley;
(b) The amount per bushel for malting barley (not including
discounts or incentives that may apply) above a feed barley price that
is determined at a later date, provided the method of determining the
price is specified in the malting barley contract; or
(c) If your malting barley contract has a variable premium price
option, you must select a price or a method of determining a price that
will be treated as the sale price and your additional value price per
bushel will be calculated under section 3(a) or (b), as applicable; and
(d) Under no circumstances will the additional value price per
bushel exceed $2.00 per bushel.
4. Loss Example.
In accordance with section 13, your loss will be calculated as
follows:
(a) Assume the following:
[[Page 221]]
(1) A producer has:
(i) 400 acres of barley insured under the Small Grains Crop
Provisions, of which 200 acres are planted to feed barley and 200 acres
are planted to an approved malting barley variety;
(ii) 100 percent share;
(iii) A feed barley approved yield of 55 bushels per acre;
(iv) A malting barley approved yield, based on contracted production
and the number of acres planted to approved malting barley varieties of
52 bushels per acre;
(v) Selected the 75 percent coverage level; and
(vi) A malting barley contract for the sale of 10,000 bushels of
malting barley at $2.60 per bushel;
(2) The projected price for feed barley is $1.92 per bushel;
(3) In accordance with section 3, the additional value price per
bushel for production grown under the malting barley contract is $0.68
($2.60 malting barley contract price minus $1.92 projected price); and
(4) The total production from the 200 acres of malting barley is
7,250 bushels, all of which fails to meet the quality standards
specified in section 14(a) and in the malting barley contract:
(i) 4,750 bushels are sold for $2.31 per bushel; and
(ii) After conditioning at a cost of $0.05 per bushel, an additional
2,500 bushels are sold for $2.20 per bushel;
(b) In accordance with section 2, the amount of insurance protection
is determined as follows:
(1) The lesser of 41.3 bushels per acre production guarantee (55
bushels x 75 percent coverage level) for feed barley or 37.5 bushels per
acre (10,000 bushels contracted / 200 acres = 50.0 bushels per acre and
50.0 x 75 percent coverage level = 37.5);
(2) 37.5 bushels per acre x 200 acres = 7,500 bushels total malting
barley production guarantee; and
(3) 7,500 bushels x $0.68 additional value price = $5,100.00 total
amount of insurance for the unit;
(c) In accordance with section 14, the total amount of production to
count is determined as follows:
(1) Damaged production that is not reconditioned:
(i) $2.31 price per bushel - $1.92 projected price for feed barley =
$0.39;
(ii) $0.39 / $0.68 additional value price = 0.57; and
(iii) 0.57 x 4,750 bushels of damaged production sold at $2.31 =
2,708 bushels of production to count;
(2) Damaged production that is reconditioned:
(i) $2.20 price per bushel-$1.92 projected price for feed barley =
$0.28;
(ii) $0.28-$0.05 reconditioning cost = $0.23;
(iii) $0.23 / $0.68 additional value price = 0.34; and
(iv) 0.34 x 2,500 bushels of damaged production sold at $2.20 = 850
bushels of production to count; and
(3) Total production to count is 3,558 bushels (2,708 + 850);
(d) The value of production to count is $2,419.00 (3,558 bushels x
$0.68 additional value price); and
(e) The indemnity amount is $2,681.00 ($5,100.00 total amount of
insurance protection for the unit - $2,419.00 value of production to
count).
[75 FR 15883, Mar. 30, 2010]
Sec. 457.119 Texas citrus fruit crop insurance provisions.
The Texas citrus fruit crop insurance provisions for the 2000 and
succeeding crop years are as follows:
United States Department of Agriculture
Federal Crop Insurance Corporation
Texas Citrus Fruit Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Crop. Specific groups of citrus fruit as listed in the Special
Provisions.
Crop year. The period beginning with the date insurance attaches to
the citrus crop and extending through the normal harvest time. It is
designated by the calendar year following the year in which the bloom is
normally set.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper, or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the field for the
purpose of picking all or a portion of the crop.
Excess rain. An amount of precipitation that damages the crop.
Excess wind. A natural movement of air that has sustained speeds
exceeding 58 miles per hour recorded at the U. S. Weather Service
reporting station operating nearest to the grove at the time of damage.
Freeze. The formation of ice in the cells of the tree, its blossoms,
or its fruit caused by low air temperatures.
Harvest. The severance of mature citrus fruit from the tree by
pulling, picking, or any other means, or by collecting marketable fruit
from the ground.
[[Page 222]]
Hedged. A process of trimming the sides of the citrus trees for
better or more fruitful growth of the citrus fruit.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Local market price. The applicable citrus price per ton offered by
buyers in the area in which you normally market the insured crop.
Production guarantee (per acre):
(a) First stage production guarantee. The second stage production
guarantee multiplied by forty percent (40%).
(b) Second stage production guarantee. The quantity of citrus (in
tons) determined by multiplying the yield determined in accordance with
section 3 by the coverage level percentage you elect.
Ton. Two thousand (2,000) pounds avoirdupois.
Topped. A process of trimming the uppermost portion of the citrus
trees for better and more fruitful growth of the citrus fruit.
Varieties. Subclasses of crops as listed in the Special Provisions.
2. Unit Division
(a) A basic unit, as defined in section 1 of the Basic Provisions,
will be divided into additional basic units by each citrus crop
designated in the Special Provisions.
(b) Provisions in the Basic Provisions that allow optional units by
irrigated and non-irrigated practices are not applicable.
(c) Instead of establishing optional units by section, section
equivalent, or FSA farm serial number, optional unit is located on non-
contiguous land.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 (Insurance Guarantees,
Coverage Levels, and Prices for Determining Indemnities) of the Basic
Provisions (Sec. 457.8):
(a) You may select only one price election and coverage level for
each citrus fruit crop designated in the Special Provisions that you
elect to insure. The price election you choose for each crop need not
bear the same percentage relationship to the maximum price offered by us
for each crop. For example, if you choose one hundred percent (100%) of
the maximum price election for early oranges, you may choose seventy-
five percent (75%) of the maximum price election for late oranges.
However, if separate price elections are available by variety within
each crop, the price elections you choose within the crop must have the
same percentage relationship to the maximum price offered by us for each
variety within the crop.
(b) The production guarantee per acre is progressive by stage and
increases at specific intervals to the final stage production guarantee.
The stages and production guarantees per acre are:
(1) The first stage extends from the date insurance attaches through
April 30 of the calendar year of normal bloom. The production guarantee
will be forty percent (40%) of the yield calculated in section 3(e)
multiplied by your coverage level.
(2) The second or final stage extends from May 1 of the calendar
year of normal bloom until the end of the insurance period. The
production guarantee will be the yield calculated in section 3(e)
multiplied by your coverage level.
(c) Any acreage of citrus damaged in the first stage to the extent
that the majority of producers in the area would not further maintain it
will be limited to the first stage production guarantee even though you
may continue to maintain it.
(d) In addition to the reported production, each crop year you must
report by type:
(1) The number of trees damaged, topped, hedged, pruned or removed;
any change in practices or any other circumstance that may reduce the
expected yield below the yield upon which the insurance guarantee is
based; and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and anytime the planting pattern of such acreage
is changed:
(i) The age of the interplanted crop, and type if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your approved yield.
We will reduce the yield used to establish your production guarantee
as necessary, based on our estimate of the effect of the following:
interplanted perennial crop; removal, topping, hedging, or pruning of
trees; damage; change in practices and any other circumstance on the
yield potential of the insured crop. If you fail to notify us of any
circumstance that may reduce your yields from previous levels, we will
reduce your production guarantee as necessary at any time we become
aware of the circumstance.
(e) The yield used to compute your production guarantee will be
determined in accordance with Actual Production History (APH)
regulations, 7 CFR part 400, subpart G, and applicable policy provisions
unless damage or changes to the grove or trees, require establishment of
the yield by another method. In the event of such damage or changes, the
yield will be based on our appraisal of the potential of the insured
acreage for the crop year.
(f) Instead of reporting your citrus production for the previous
crop year, as required by section 3 of the Basic Provisions
(Sec. 457.8),
[[Page 223]]
there is a one year lag period. Each crop year you must report your
production from two crop years ago, e.g., on the 1998 crop year
production report, you will provide your 1996 crop year production.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is August 31 preceding
the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are November 20.
6. Annual Premium
In lieu of the premium computation method in section 7 (Annual
Premium) of the Basic Provisions (Sec. 457.8), the annual premium amount
is computed by multiplying the second stage production guarantee per
acre by the price election, the premium rate, the insured acreage, your
share at the time coverage begins, and by any applicable premium
adjustment percentages contained in the Special Provisions.
7. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), the crop insured will be all the acreage in the county of
each citrus crop designated in the Special Provisions that you elect to
insure and for which a premium rate is provided by the actuarial
documents:
(a) In which you have a share;
(b) That are adapted to the area;
(c) That are irrigated;
(d) That has produced an average yield of at least three tons per
acre the previous year, or we have appraised the yield potential of at
least three tons per acre;
(e) That is grown in a grove that, if inspected, is considered
acceptable by us; and
(f) That is not sold by direct marketing, unless allowed by the
Special Provisions or by written agreement.
8. Insurable Acreage
In lieu of the provisions in section 9 (Insurable Acreage) of the
Basic Provisions (Sec. 457.8), that prohibit insurance attaching to a
crop planted with another crop, citrus interplanted with another
perennial crop is insurable unless we inspect the acreage and determine
it does not meet the requirements contained in your policy.
9. Insurance Period
(a) In accordance with the provisions of section 11 (Insurance
Period) of the Basic Provisions (Sec. 457.8):
(1) Coverage begins on November 21 of each crop year, except that
for the year of application, if your application is received after
November 11 but prior to November 21, insurance will attach on the 10th
day after your properly completed application is received in our local
office, unless we inspect the acreage during the 10 day period and
determine that it does not meet insurability requirements. You must
provide any information that we require for the crop or to determine the
condition of the grove.
(2) The calendar date for the end of the insurance period for each
crop year is the second May 31st of the crop year.
(b) In addition to the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage after
coverage begins, but on or before the acreage reporting date for the
crop year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage
of citrus on or before the acreage reporting date for the crop year,
insurance will not be considered to have attached to, and no premium
will be due, and no indemnity paid for such acreage for that crop year
unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
10. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur within the insurance period:
(1) Excess rain;
(2) Excess wind;
(3) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the grove;
(4) Freeze;
(5) Hail;
(6) Tornado;
(7) Wildlife; or
(8) Failure of the irrigation water supply if caused by an insured
peril or drought that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against damage or loss of production due to:
(1) Disease or insect infestation, unless a cause of loss specified
in section 10(a):
[[Page 224]]
(i) Prevents the proper application of control measures or causes
properly applied control measures to be ineffective; or
(ii) Causes disease or insect infestation for which no effective
control mechanism is available;
(2) Inability to market the citrus for any reason other than actual
physical damage from an insurable cause specified in this section. For
example, we will not pay you an indemnity if you are unable to market
due to quarantine, boycott, or refusal of any person to accept
production.
11. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 (Duties in the Event
of Damage or Loss) of the Basic Provisions (Sec. 457.8), the following
will apply:
(a) If the Special Provisions permit or a written agreement
authorizing direct marketing exists, you must notify us at least 15 days
before any production from any unit will be sold by direct marketing. We
will conduct an appraisal that will be used to determine your production
to count for production that is sold by direct marketing. If damage
occurs after this appraisal, we will conduct an additional appraisal.
These appraisals, and any acceptable records provided by you, will be
used to determine your production to count. Failure to give timely
notice that production will be sold by direct marketing will result in
an appraised amount of production to count of not less than the
production guarantee per acre if such failure results in our inability
to make the required appraisal.
(b) If you intend to claim an indemnity on any unit, you must notify
us before beginning to harvest any damaged production so we may have an
opportunity to inspect it. You must not sell or dispose of the damaged
crop until after we have given you written consent to do so. If you fail
to meet the requirements of this section all such production will be
considered undamaged and included as production to count.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim on a unit basis by:
(1) Multiplying the insured acreage for each crop, or variety if
applicable, by its respective production guarantee (see sections 1 and
3);
(2) Multiplying the results of section 12(b)(1) by the respective
price election for each crop or variety, if applicable;
(3) Totaling the results of section 12(b)(2);
(4) Multiplying the total production to count of each variety, if
applicable (see section 12(c)) by the respective price election;
(5) Totaling the results of section 12(b)(4);
(6) Subtracting this result of section 12(b)(5) from the result of
section 12(b)(3); and
(7) Multiplying the result of section 12(b)(6) by your share.
(c) The total production to count (in tons) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) For which you fail to provide acceptable production records;
(C) That is damaged solely by uninsured causes; or
(D) From which production is sold by direct marketing, if direct
marketing is specifically permitted by the Special Provisions or a
written agreement, and you fail to meet the requirements contained in
section 11;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage you intend to abandon
or no longer care for, if you and we agree on the appraised amount of
production. Upon such agreement, the insurance period for that acreage
will end. If you do not agree with our appraisal, we may defer the claim
only if you agree to continue to care for the crop. We will then make
another appraisal when you notify us of further damage or that harvest
is general in the area unless you harvested the crop, in which case we
will use the harvested production. If you do not continue to care for
the crop, our appraisal made prior to deferring the claim will be used
to determine the production to count; and
(2) All harvested production from the insurable acreage.
(d) Any citrus fruit that is not marketed as fresh fruit and, due to
insurable causes, does not contain 120 or more gallons of juice per ton,
will be adjusted by:
(1) Dividing the gallons of juice per ton obtained from the damaged
citrus by 120; and
(2) Multiplying the result by the number of tons of such citrus.
If individual records of juice content are not available, an average
juice content from the nearest juice plant will be used, if available.
If not available, a field appraisal will be made to determine the
average juice content.
[[Page 225]]
(e) Where the actuarial documents provide, and you elect, the fresh
fruit option, citrus fruit that is not marketable as fresh fruit due to
insurable causes will be adjusted by:
(1) Dividing the value per ton of the damaged citrus by the price of
undamaged citrus fruit; and
(2) Multiplying the result by the number of tons of such citrus
fruit. The applicable price for undamaged citrus fruit will be the local
market price the week before damage occurred.
(f) Any production will be considered marketed or marketable as
fresh fruit unless, due solely to insured causes, such production was
not marketed as fresh fruit.
(g) In the absence of acceptable records of disposition of harvested
citrus fruit, the disposition and amount of production to count for the
unit will be the guarantee on the unit.
(h) Any citrus fruit on the ground that is not harvested will be
considered totally lost if damaged by an insured cause.
13. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[61 FR 41300, Aug. 8, 1996; 61 FR 57583, Nov. 7, 1996, as amended at 62
FR 65169, Dec. 10, 1997]
Sec. 457.120 [Reserved]
Sec. 457.121 Arizona-California citrus crop insurance provisions.
The Arizona-California citrus crop insurance provisions for the 2015
and succeeding crop years are as follows:
United States Department of Agriculture
Federal Crop Insurance Corporation
Arizona-California Citrus Crop Provisions
1. Definitions
Carton. The standard container for marketing the fresh packed citrus
fruit commodity, as shown below, unless otherwise provided in the
Special Provisions. In the absence of marketing records on a carton
basis, production will be converted to cartons on the basis of the
following average net pounds of packed fruit in a standard packed
carton, unless otherwise provided in the Special Provisions.
------------------------------------------------------------------------
Citrus fruit
Container size commodity Pounds
------------------------------------------------------------------------
Container 58............ Oranges............ 38
Container 58............ Lemons............. 40
Container 59............ Grapefruit......... 32
Container 63............ Mandarins/ 25
Tangerines.
Container 63............ Tangelos........... 25
------------------------------------------------------------------------
Citrus fruit commodity. Citrus fruit as follows:
(1) Oranges;
(2) Lemons;
(3) Grapefruit;
(4) Mandarins/Tangerines;
(5) Tangelos; and
(6) Any other citrus fruit commodity designated in the actuarial
documents.
Citrus fruit group. A designation in the Special Provisions used to
identify commodity types within a citrus fruit commodity that may be
grouped together for the purposes of electing coverage levels and
identifying the insured crop.
Commodity type. A specific subgroup of a citrus fruit commodity
having a characteristic or set of characteristics distinguishable from
other subgroups of the same citrus fruit commodity.
Crop year. The period beginning with the date insurance attaches to
the insured crop and extending through normal harvest time. It is
designated by the calendar year following the year in which the bloom is
normally set.
Dehorning. Cutting of any scaffold limb to a length that is not
greater than one-fourth (\1/4\) the height of the tree before cutting.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the field for the
purpose of picking all or a portion of the insured crop.
Graft. To unite a bud or scion with a rootstock or interstock in
accordance with recommended practices to form a living union.
Harvest. The severance of mature citrus from the tree by pulling,
picking, or any other means, or by collecting marketable fruit from the
ground.
Interplanted. Acreage on which two or more agricultural commodities
are planted in any form of alternating or mixed pattern.
Interstock. The area of the tree that is grafted to the rootstock.
[[Page 226]]
Rootstock. The root and stem portion of a tree to which a scion can
be grafted.
Scaffold limb. A major limb attached directly to the trunk.
Scion. A detached living portion of a plant joined to a rootstock or
interstock in grafting.
Set out. Transplanting a tree into the grove.
Topwork. Grafting a scion onto a pruned scaffold limb.
2. Unit Division
(a) Basic units will be established in accordance with section 1 of
the Basic Provisions.
(b) Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Unless otherwise allowed
by written agreement, optional units may only be established if each
optional unit meets one or more of the following:
(1) The optional unit is located on non-contiguous land; and
(2) In addition to or instead of establishing optional units by non-
contiguous land, optional units may be established by commodity type if
allowed by the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3 of the Basic
Provisions, you may select only one price election and coverage level
for each citrus fruit group you elect to insure. The price election you
choose for each citrus fruit group need not bear the same percentage
relationship to the maximum price offered by us for each citrus fruit
group. For example, if you choose one hundred percent (100%) of the
maximum price election for the citrus fruit group for Valencia oranges,
you may choose seventy-five percent (75%) of the maximum price election
for the citrus fruit group for Navel oranges. However, if separate price
elections are available by commodity type within each citrus fruit
group, the price elections you choose for each commodity type must have
the same percentage relationship to the maximum price offered by us for
each commodity type within the citrus fruit group.
(b) In lieu of reporting your citrus production of marketable fresh
fruit for the previous crop year, as required by section 3 of the Basic
Provisions (Sec. 457.8), there is a lag period of one year. Each crop
year, you must report your production from two crop years ago, e.g., on
the 2015 crop year production report, you will provide your 2013 crop
year production.
(c) In addition, you must report, by the production reporting date
designated in section 3 of the Basic Provisions (Sec. 457.8), by
commodity type, if applicable:
(1) The number of trees damaged, dehorned or removed; any change in
practices or any other circumstance that may reduce the expected yield
below the yield upon which the insurance guarantee is based; and the
number of affected acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with
another perennial agricultural commodity and any time the planting
pattern of such acreage is changed:
(i) The age of the interplanted agricultural commodity and commodity
type, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your approved yield.
(d) We will reduce the yield used to establish your production
guarantee as necessary, based on our estimate of the effect of any
situation listed in section 3(c) that may occur. If you fail to notify
us of any situation in section 3(c), we will reduce your production
guarantee as necessary, at any time we become aware of the circumstance.
If the situation in 3(c) occurred:
(1) Before the beginning of the insurance period, the yield used to
establish your production guarantee will be reduced for the current crop
year regardless of whether the situation was due to an insured or
uninsured cause of loss;
(2) After the beginning of the insurance period and you notify us by
the production reporting date, the yield used to establish your
production guarantee will be reduced for the current crop year only if
the potential reduction in the yield used to establish your production
guarantee is due to an uninsured cause of loss; or
(3) After the beginning of the insurance period and you fail to
notify us by the production reporting date, an amount equal to the
reduction in the yield will be added to the production to count
calculated in section 11(c) due to uninsured causes. We may reduce the
yield used to establish your production guarantee for the subsequent
crop year to reflect any reduction in the productive capacity of the
trees.
4. Contract Changes
In accordance with section 4 of the Basic Provisions (Sec. 457.8),
the contract change date is August 31 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions (Sec. 457.8),
the cancellation and termination dates are November 20.
[[Page 227]]
6. Insured Crop
In accordance with section 8 of the Basic Provisions, the insured
crop will be all the acreage in the county of each citrus fruit group
you elect to insure and for which a premium rate is provided by the
actuarial documents:
(a) In which you have a share;
(b) That is grown on rootstock and trees adapted to the area;
(c) That is irrigated;
(d) That is grown in a grove that, if inspected, is considered
acceptable by us;
(e) That is not sold by direct marketing, unless allowed by the
Special Provisions or by written agreement; and
(f) That, unless otherwise provided in the Special Provisions or if
we inspect and approve a written agreement to insure such acreage, is
grown on trees that have reached at least:
(1) The sixth growing season after being set out; or
(2) The fifth growing season after topwork or grafting, if topwork
or grafting occurs after set out.
7. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions that
prohibit insurance attaching to interplanted acreage, citrus
interplanted with another perennial agricultural commodity is insurable
unless we inspect the acreage and determine it does not meet the
requirements contained in your policy.
8. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions (Sec. 457.8):
(1) Coverage begins on November 21 of each crop year, except that
for the year of application, if your application is received after
November 11 but prior to November 21, insurance will attach on the 10th
day after your properly completed application is received in our local
office unless we inspect the acreage during the 10-day period and
determine that it does not meet insurability requirements. You must
provide any information that we require for the insured crop or to
determine the condition of the grove.
(2) The calendar date for the end of the insurance period for each
crop year is:
(i) August 31 for:
(A) Navel oranges; and
(B) Lemons in the Southern California counties of Imperial, Orange,
Riverside, San Bernardino, San Diego, and Ventura;
(ii) November 20 for Valencia oranges; and
(iii) July 31 for lemons in all other counties and for all other
citrus fruit commodities.
(b) In addition to the provisions of section 11 of the Basic
Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage after
coverage begins, but on or before the acreage reporting date for the
crop year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage
of citrus on or before the acreage reporting date for the crop year,
insurance will not be considered to have attached to and no premium will
be due, and no indemnity paid, for such acreage for that crop year
unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
9. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions (Sec. 457.8), insurance is provided only against the
following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the grove;
(3) Wildlife;
(4) Earthquake;
(5) Volcanic eruption;
(6) Failure of irrigation water supply, if caused by an insured
peril that occurs during the insurance period;
(7) Insects, but not damage due to insufficient or improper
application of pest control measures; or
(8) Plant disease, but not damage due to insufficient or improper
application of disease control measures.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to the inability to market the citrus for any reason
other than actual physical damage from an insurable cause of loss
specified in this section. For example, we will not pay you an indemnity
if you are unable to market due to quarantine, boycott, or refusal of
any person to accept production.
10. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 of the Basic
Provisions, you must leave representative samples. In lieu of section
14(c)(3) of the Basic Provisions, we will determine which trees must
remain unharvested as your representative sample so that we may inspect
them in accordance with procedures.
[[Page 228]]
(b) In addition to the requirements of section 14 of the Basic
Provisions (Sec. 457.8), the following will apply:
(1) If the Special Provisions permit or a written agreement
authorizing direct marketing exists, you must notify us at least 15 days
before any production from any unit will be sold by direct marketing. We
will conduct an appraisal that will be used to determine your production
to count for production that is sold by direct marketing. If damage
occurs after this appraisal, we will conduct an additional appraisal.
These appraisals, and any acceptable records provided by you, will be
used to determine your production to count. Failure to give timely
notice that production will be sold by direct marketing will result in
an appraised amount of production to count of not less than the
production guarantee per acre if such failure results in our inability
to make the required appraisal.
(2) If you intend to claim an indemnity on any unit, you must notify
us at least 15 days prior to the beginning of harvest or immediately if
damage is discovered during harvest so that we may have an opportunity
to inspect unharvested trees. You must not sell or dispose of the
damaged insured crop until after we have given you written consent to do
so. If you fail to meet the requirements of this section, all such
production will be considered undamaged and included as production to
count.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each commodity type by its
respective production guarantee;
(2) Multiplying the results of section 11(b)(1) by the respective
price election for each commodity type;
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to be counted of each commodity
type (see section 11(c)), by the respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting this result of section 11(b)(5) from the result of
section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share;
(c) The total production to count (in cartons) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) For which you fail to provide acceptable production records;
(C) That is damaged solely by uninsured causes; or
(D) From which production is sold by direct marketing, if direct
marketing is specifically permitted by the Special Provisions or a
written agreement, and you fail to meet the requirements contained in
section 10;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production determined to be marketable as fresh
packed fruit; and
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the insured crop. We
will then make another appraisal when you notify us of further damage or
that harvest is general in the area unless you harvested the insured
crop, in which case we will use the harvested production. If you do not
continue to care for the insured crop, our appraisal made prior to
deferring the claim will be used to determine the production to count;
(2) All harvested production marketed as fresh packed fruit from the
insurable acreage; and
(3) All citrus that was disposed of or sold without an inspection or
written consent.
(d) Any production will be considered marketed or marketable as
fresh packed fruit unless, due solely to insured causes, such production
was not marketed or marketable as fresh packed fruit.
(e) Citrus that cannot be marketed as fresh packed fruit due to
insurable causes will not be considered production to count.
(f) If you elect the frost protection option and we determine that
frost protection equipment, as specified in the Special Provisions, was
not properly utilized or not properly reported, the indemnity for the
unit will be reduced by the percentage of premium reduction allowed for
frost protection equipment. You must, at our request, provide us records
showing the start-stop times by date for each period the frost
protection equipment was used.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[61 FR 44147, Aug. 28, 1996, as amended at 62 FR 65170, Dec. 10, 1997;
78 FR 46253, July 31, 2013]
[[Page 229]]
Sec. 457.122 Walnut crop insurance provisions.
The Walnut Crop Insurance Provisions for the 2008 and succeeding
crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Walnut Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Harvest. Removal of the walnuts from the orchard.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Net delivered weight. Delivered weight (pounds) of dry, hulled, in-
shell walnuts, excluding foreign material.
Pound. A unit of weight equal to 16 ounces avoirdupois.
Production guarantee (per acre). The number of pounds (whole in-
shell walnuts), determined by multiplying the approved APH yield per
acre by the coverage level percentage you elect.
2. Unit Division
Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Optional units may be
established only if each optional unit is located on non-contiguous
land, unless otherwise allowed by written agreement.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic Provisions
(Sec. 457.8):
(a) You may select only one price election for all the walnuts in
the county insured under this policy unless the Special Provisions
provide different price elections by variety or varietal group, in which
case you may select one price election for each walnut variety or
varietal group designated in the Special Provisions. The price elections
you choose for each variety or varietal group must have the same
percentage relationship to the maximum price offered by us for each
variety or varietal group. For example, if you choose 100 percent of the
maximum price election for a specific variety or varietal group, you
must also choose 100 percent of the maximum price election for all other
varieties or varietal groups.
(b) You must report, by the production reporting date designated in
section 3 of the Basic Provisions (Sec. 457.8), by variety or varietal
group if applicable:
(1) Any damage, removal of trees, change in practices, or any other
circumstance that may reduce the expected yield below the yield upon
which the insurance guarantee is based, and the number of affected
acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern;
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and anytime the planting pattern of such acreage
is changed, the age of the crop that is interplanted with the walnuts,
and type if applicable, and the planting pattern; and
(5) Any other information that we request in order to establish your
approved yield.
We will reduce the yield used to establish your production guarantee
as necessary, based on our estimate of the effect of the following:
interplanted perennial crop; removal of trees; damage; change in
practices and any other circumstance on the yield potential of the
insured crop. If you fail to notify us of any circumstance that may
reduce your yields from previous levels, we will reduce your production
guarantee as necessary at any time we become aware of the circumstances.
(c) You may not increase your elected or assigned coverage level or
the ratio of your price election to the maximum price election if a
cause of loss that could or would reduce the yield of the insured crop
has occurred prior to the time that you request the increase.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change dates are October 31 for California and August 31 preceding the
cancellation date for all other states.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are January 31 for California and
November 20 for all other states.
6. Insured Crop
In accordance with section 8 of the Basic Provisions (Sec. 457.8),
the crop insured will be all the commercially grown English Walnuts
[[Page 230]]
(excluding black walnuts) in the county for which a premium rate is
provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown on tree varieties that:
(1) Were commercially available when the trees were set out;
(2) Are adapted to the area; and
(3) Are grown on a root stock that is adapted to the area;
(c) That are grown in an orchard that, if inspected, are considered
acceptable by us;
(d) On acreage where at least 90 percent of the trees have reached
at least the seventh growing season after being set out, unless
otherwise provided in the Special Provisions.
(e) That are in a unit that consists of at least five acres, unless
we agree in writing to insure a smaller unit.
7. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions
(Sec. 457.8), that prohibit insurance attaching to a crop planted with
another crop, walnuts interplanted with another perennial crop are
insurable unless we inspect the acreage and determine that it does not
meet the requirements contained in your policy.
8. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) Coverage begins on February 1 in California and November 21 in
all other states of each crop year, except that for the year of
application, if your application is received after January 22 but prior
to February 1 in California or after November 11 but prior to November
21 in all states, insurance will attach on the 10th day after your
properly completed application is received in our local office, unless
we inspect the acreage during the 10 day period and determine that it
does not meet insurability requirements. You must provide any
information that we require for the crop or to determine the condition
of the orchard.
(2) The calendar date for the end of the insurance period for each
crop year is November 15 (Exceptions, if any, for specific counties or
varieties or varietal group are contained in the Special Provisions).
(3) Notwithstanding paragraph (a)(1) of this section, for each
subsequent crop year that the policy remains continuously in force,
coverage begins on the day immediately following the end of the
insurance period for the prior crop year. Policy cancellation that
results solely from transferring to a different insurance provider for a
subsequent crop year will not be considered a break in continuous
coverage.
(4) If your walnut policy is canceled or terminated for any crop
year, in accordance with the terms of the policy, after insurance
attached for that crop year but on or before the cancellation and
termination dates whichever is later, insurance will not be considered
to have attached for that crop year and no premium, administrative fee,
or indemnity will be due for such crop year.
(b) In addition to the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period. Acreage
acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage
of walnuts on or before the acreage reporting date for the crop year,
insurance will not be considered to have attached to, and no premium or
indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
9. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions (Sec. 457.8), insurance is provided only against the
following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and undergrowth have not been controlled or
pruning debris has not been removed from the orchard;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against any damage or loss of production due to the inability to market
the walnuts for any reason other than actual physical damage to the
walnuts from an insurable cause specified in this section. For example,
we will not pay you an indemnity if you are unable to market due to
quarantine, boycott,
[[Page 231]]
or refusal of any person to accept production.
10. Duties in the Event of Damage or Loss
(a) In addition to the requirements of section 14 of the Basic
Provisions, if you intend to claim an indemnity on any unit:
(1) You must notify us prior to the beginning of harvest so that we
may inspect the damaged production;
(2) You must give notice when knowledge is obtained of any mold
damage or 15 days prior to harvest so that we may inspect the mold
damaged production; and
(3) You must not sell or dispose of the damaged crop until we have
given you written consent to do so.
(b) If you fail to meet the requirements of this section, all such
production will be considered undamaged and included as production to
count.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by the respective production
guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective
price election for each variety or varietal group;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted of each variety
or varietal group, if applicable, (see section 11(c)) by the respective
price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the result in section 11(b)(5) from the result in
section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of walnuts in the unit,
with a guarantee of 2,500 pounds per acre and a price election of $0.61
per pound. You are only able to harvest 200,000 pounds. Your indemnity
would be calculated as follows:
(1) 100 acres x 2,500 pounds = 250,000 pound insurance guarantee;
(2 & 3) 250,000 pounds x $0.61 price election = $152,500 total value
of insurance guarantee;
(4 & 5) 200,000 pounds production to count x $0.61 price election =
$122,000 total value of production to count;
(6) $152,500 total value guarantee--$122,000 total value of
production to count = $30,500 loss; and
(7) $30,500 x 100 percent share = $30,500 indemnity payment.
(c) The total production to count (whole in-shell pounds) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is damaged solely by uninsured causes; or
(C) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us of further damage or that
harvest is general in the area unless you harvested the crop, in which
case we will use the harvested production. If you do not continue to
care for the crop, our appraisal made prior to deferring the claim will
be used to determine the production to count; and
(2) All harvested production from the insurable acreage.
(d) Mature walnut production damaged due to an insurable cause of
loss which occurs within the insurance period may be adjusted for
quality based on an inspection by the Dried Fruit Association or during
our loss adjustment process. Walnut production that has mold damage
greater than 8 percent, based on the net delivered weight, will be
reduced by the quality adjustment factors contained in the Special
Provisions. Walnut production that exceeds 30 percent mold damage and
will not be sold, the production to count will be zero.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 20091, Apr. 25, 1997, as amended at 62 FR 65170, Dec. 10, 1997;
65 FR 47837, Aug. 4, 2000; 72 FR 10909, Mar. 12, 2007]
Sec. 457.123 Almond crop insurance provisions.
The Almond Crop Insurance Provisions for the 2008 and succeeding
crop years are as follows:
FCIC Policies
[[Page 232]]
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Almond Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Harvest. The removal of mature almonds from the orchard.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Meat pounds. The total pounds of almond meats (whole, chipped and
broken, and in-shell meats). In-shell almonds will be converted to meat
pounds in accordance with FCIC approved procedures.
Production guarantee (per acre). The quantity of almonds (total meat
pounds per acre) determined by multiplying the approved actual
production history (APH) yield per acre by the coverage level percentage
you elect.
Set out. Transplanting the tree into the orchard.
2. Unit Division
Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Optional units may be
established only if each optional unit is located on non-contiguous
land, unless otherwise allowed by written agreement.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic Provisions
(Sec. 457.8):
(a) You may select only one price election for all the almonds in
the county insured under this policy unless the Special Provisions
provide different price elections by type, in which case you may select
one price election for each almond type designated in the Special
Provisions. The price elections you choose for each type must have the
same percentage relationship to the maximum price offered by us for each
type. For example, if you choose 100 percent of the maximum price
election for one type, you must also choose 100 percent of the maximum
price election for all other types.
(b) You must report, by the production reporting date designated in
section 3 of the Basic Provisions (Sec. 457.8), by type if applicable:
(1) Any damage, removal of trees, change in practices, or any other
circumstance that may reduce the expected yield below the yield upon
which the insurance guarantee is based, and the number of affected
acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting patterns;
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and anytime the planting pattern of such acreage
is changed, the age of the crop that is interplanted with the almonds,
and type if applicable, and the planting pattern; and
(5) Any other information that we request in order to establish your
approved yield.
We will reduce the yield used to establish your production guarantee
as necessary, based on our estimate of the effect of the following:
interplanted perennial crop; removal of trees; damage; change in
practices and any other circumstance on the yield potential of the
insured crop. If you fail to notify us of any circumstance that may
reduce your yields from previous levels, we will reduce your production
guarantee as necessary at any time we become aware of the circumstance.
(c) You may not increase your elected or assigned coverage level or
the ratio of your price election to the maximum price election if a
cause of loss that would or could reduce the yield of the insured crop
has occurred prior to the time that you request the increase.
4. Contract Changes
In accordance with section 4 of the Basic Provisions (Sec. 457.8),
the contract change date is August 31 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions (Sec. 457.8),
the cancellation and termination dates are December 31.
6. Insured Crop
In accordance with section 8 of the Basic Provisions (Sec. 457.8),
the crop insured will be all the almonds in the county for which a
premium rate is provided by the actuarial documents:
(a) In which you have a share unless allowed otherwise by section
8(b);
(b) That are grown for harvest as almonds;
(c) That are irrigated;
(d) That are grown in an orchard that, if inspected, is considered
acceptable to us; and
(e) On acreage where at least 90 percent of the trees have reached
at least the sixth growing season after being set out, unless otherwise
provided in the Special Provisions.
[[Page 233]]
7. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions
(Sec. 457.8), that prohibit insurance attaching to a crop planted with
another crop, almonds interplanted with another perennial crop are
insurable unless we inspect the acreage and determine that it does not
meet the requirements contained in your policy.
8. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions (Sec. 457.8):
(1) Coverage begins on January 1 of each crop year, except that for
the year of application, if your application is received after December
21, but prior to January 1, insurance will attach on the 10th day after
your properly completed application is received in our local office
unless we inspect the acreage during the 10 day period and determine
that it does not meet insurability requirements. You must provide any
information that we require for the crop or to determine the condition
of the orchard.
(2) The calendar date for the end of the insurance period for each
crop year is November 30.
(3) Notwithstanding paragraph (a)(1) of this section, for each
subsequent crop year that the policy remains continuously in force,
coverage begins on the day immediately following the end of the
insurance period for the prior crop year. Policy cancellation that
results solely from transferring to a different insurance provider for a
subsequent crop year will not be considered a break in continuous
coverage.
(4) If your almond policy is canceled or terminated for any crop
year, in accordance with the terms of the policy, after insurance
attached for that crop year but on or before the cancellation and
termination dates whichever is later, insurance will not be considered
to have attached for that crop year and no premium, administrative fee,
or indemnity will be due for such crop year.
(b) In addition to the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period. Acreage
acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage
of almonds on or before the acreage reporting date for the crop year,
insurance will not be considered to have attached to, and no premium or
indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
9. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions (Sec. 457.8), insurance is provided only against the
following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and undergrowth have not been controlled or
pruning debris has not been removed from the orchard;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Earthquake;
(6) Volcanic eruption;
(7) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period; or
(8) Wildlife, unless control measures have not been taken.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against damage or loss of production due to the inability to market the
almonds for any reason other than actual physical damage to the almonds
from an insurable cause specified in this section. For example, we will
not pay you an indemnity if you are unable to market due to quarantine,
boycott, or refusal of any person to accept production.
10. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 of the Basic
Provisions (Sec. 457.8), if you intend to claim an indemnity on any
unit, you must notify us prior to the beginning of harvest so that we
may inspect the damaged production. You must not sell or dispose of the
damaged crop until after we have given you written consent to do so. If
you fail to meet the requirements of this section, all such production
will be considered undamaged and included as production to count.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
[[Page 234]]
(l) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective
price election for the type;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted of each type, if
applicable, (see subsection 11(c)) by the respective price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the result in section 11(b)(5) from the result in
section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of almonds in the unit,
with a guarantee of 1,200 pounds per acre and a price election of $1.70
per pound. You are only able to harvest 100,000 pounds. Your indemnity
would be calculated as follows:
(1) 100 acres x 1,200 pounds = 120,000 pound insurance guarantee;
(2 & 3) 120,000 pounds x $1.70 price election = $204,000 total value
of insurance guarantee;
(4 & 5) 100,000 pounds production to count x $1.70 price election =
$170,000 total value of production to count;
(6) $204,000 total of value guarantee--$170,000 total value of
production to count = $34,000 loss; and
(7) $34,000 x 100 percent share = $34,000 indemnity payment.
(c) The total production to count, specified in meat pounds, from
all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is damaged solely by uninsured causes; or
(C) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us of further damage or that
harvest is general in the area unless you harvested the crop, in which
case we will use the harvested production. If you do not continue to
care for the crop, our appraisal made prior to deferring the claim will
be used to determine the production to count; and
(2) All harvested meat pounds, including meat pounds damaged due to
uninsured causes of loss.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 25108, May 8, 1997, as amended at 62 FR 65170, Dec. 10, 1997; 65
FR 47838, Aug. 4, 2000; 72 FR 10909, Mar. 12, 2007]
Sec. 457.124 Raisin crop insurance provisions.
The raisin crop insurance provisions for the 1998 and succeeding
crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Raisin Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Crop year. In lieu of the definition of ``Crop year'' contained in
section 1 of the Basic Provisions (Sec. 457.8), the calendar year in
which the raisins are placed on trays for drying.
Delivered ton. A ton of raisins delivered to a packer, processor,
buyer or a reconditioner, before any adjustment for U. S. Grade B and
better maturity standards, and after adjustments for moisture over 16
percent and substandard raisins over 5 percent.
RAC. The Raisin Administrative Committee, which operates under an
order of the United States Department of Agriculture (USDA).
Raisins. The sun-dried fruit of varieties of grapes designated
insurable by the actuarial documents. These grapes will be considered
raisins for the purpose of this policy when laid on trays in the
vineyard to dry.
[[Page 235]]
Reference maximum dollar amount. The value per ton established by
FCIC and shown in the actuarial documents.
Substandard. Raisins that fail to meet the requirements of U.S.
Grade C, or layer (cluster) raisins with seeds that fail to meet the
requirements of U.S. Grade B.
Table grapes. Grapes grown for commercial sale as fresh fruit on
acreage where appropriate cultural practices were followed.
Ton. Two thousand (2,000) pounds avoirdupois.
Tonnage report. A report used to annually report, by unit, all the
tons of raisins produced in the county in which you have a share.
2. Unit Division
(a) A basic unit, as defined in section 1 of the Basic Provisions,
will be divided into additional basic units by grape variety.
(b) Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Optional units may be
established only if each optional unit is located on non-contiguous
land, unless otherwise allowed by written agreement.
3. Amounts of Insurance and Production Reporting
In addition to the requirements of section 3 (Insurance Guarantees,
Coverage Levels, and Prices for Determining Indemnities) of the Basic
Provisions (Sec. 457.8):
(a) You may select only one coverage level percentage for all the
raisins in the county insured under this policy.
(b) The amount of insurance for the unit will be determined by
multiplying the insured tonnage by the reference maximum dollar amount,
by the coverage level percentage you elect, and by your share.
(c) Insured tonnage is determined as follows:
(1) For units not damaged by rain--The delivered tons; or
(2) For units damaged by rain--By adding the delivered tons to any
verified loss of production due to rain damage. When production from a
portion of the acreage within a unit is removed from the vineyard and
production from the remaining acreage is lost in the vineyard, the
amount of production lost in the vineyard will be determined based on
the number of tons of raisins produced on the acreage from which
production was removed. When no production has been removed from the
vineyard, the amount of production lost in the vineyard will be
determined based on an appraisal.
(3) Insured tonnage will be adjusted as follows:
(i) The insured tonnage will be reduced 0.12 percent for each 0.10
percent of moisture in excess of 16.0 percent. For example, 10.0 tons of
raisins containing 18.0 percent moisture will be reduced to 9.760 tons
of raisins;
(ii) Insured tonnage used for dry edible fruit will be reduced by
0.10 percent for each 0.10 percent of substandard raisins in excess of
5.0 percent; and
(iii) When raisins contain moisture in excess of 24.3 percent at the
time of delivery and are released for a use other than dry edible fruit
(e.g. distillery material), they will be considered to contain 24.3
percent moisture.
(4) If any raisins are delivered, the moisture content will be
determined at the time of delivery.
(d) Section 3(c) of the Basic Provisions is not applicable to this
crop.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is April 30 preceding
the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are July 31.
6. Acreage Report and Tonnage Report
In lieu of the provisions contained in section 6 of the Basic
Provisions (Sec. 457.8):
(a) You must report by unit, and on our form, the acreage on which
you intend to produce raisins for the crop year. This acreage report
must be submitted to us on or before the sales closing date, and contain
the following information:
(1) All acreage of the crop (insurable and not insurable) in which
you will have a share;
(2) Your anticipated share at the time coverage will begin;
(3) The variety; and
(4) The location of each vineyard.
(b) Acreage of the crop acquired after the acreage was reported, may
be included on the acreage report if we agree to accept the additional
acreage. Such additional acreage will not be added to the acreage report
after you first place raisins from the additional acreage on trays for
drying. Failure to report any acreage in which you have a share will
result in denial of liability. If you elect not to produce raisins on
any part of the acreage included on your acreage report, you must notify
us in writing on or before September 21, and provide any records we may
require to verify that raisins were not produced on that acreage.
(c) If you fail to file an acreage report in a timely manner, or if
the information reported is incorrect, we may deny liability on any
unit.
[[Page 236]]
(d) In addition to the acreage report, you must annually submit a
tonnage report, on our form, which includes by unit the number of
delivered tons of raisins, and, if damage has occurred, the amount of
any tonnage we determined was lost due to rain damage in the vineyard
for each unit designated in the acreage report.
(e) The tonnage report must be submitted to us as soon as the
information is available, but not later than March 1 of the year
following the crop year. Indemnities may be determined on the basis of
information you submitted on this report. If you do not submit this
report by the reporting date, we may, at our option, either determine
the insured tonnage and share by unit or we may deny liability on any
unit. This report may be revised only upon our approval. Errors in
reporting units may be corrected by us at any time we discover the
error.
7. Annual Premium
In lieu of the premium computation method contained in section 7
(Annual Premium) of the Basic Provisions (Sec. 457.8), the annual
premium amount is determined by multiplying the amount of insurance for
the unit at the time insurance attaches by the premium rate and then
multiplying that result by any applicable premium adjustment factors
that may apply.
8. Insured Crop
(a) In accordance with section 8 (Insured Crop) of the Basic
Provisions (Sec. 457.8), the crop insured will be all the raisins in the
county of grape varieties for which a premium rate is provided by the
actuarial documents and in which you have a share.
(b) In addition to the raisins not insurable under section 8
(Insured Crop) of the Basic Provisions (Sec. 457.8), we do not insure
any raisins:
(1) Laid on trays after September 8 in vineyards with north-south
rows in Merced or Stanislaus Counties, or after September 20 in all
other counties;
(2) From table grape strippings; or
(3) From vines that received manual, mechanical, or chemical
treatment to produce table grape sizing.
9. Insurance Period
In lieu of the provisions of section 11 (Insurance Period) of the
Basic Provisions (Sec. 457.8), insurance attaches on each unit at the
time the raisins are placed on trays for drying and ends the earlier of:
(a) October 20;
(b) The date the raisins are removed from the trays;
(c) The date the raisins are removed from the vineyard;
(d) Total destruction of all raisins on a unit;
(e) Final adjustment of a loss on a unit; or
(f) Abandonment of the raisins.
10. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), insurance is provided only against
unavoidable loss of production resulting from rain that occurs during
the insurance period and while the raisins are on trays or in rolls in
the vineyard for drying.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against damage or loss of production due to inability to market the
raisins for any reason other than actual physical damage from an
insurable cause specified in this section. For example, we will not pay
you an indemnity if you are unable to market due to quarantine, boycott,
or refusal of a person to accept production.
11. Reconditioning Requirements and Payment
(a) We may require you to recondition a representative sample of not
more than 10 tons of damaged raisins to determine if they meet standards
established by the RAC once reconditioned. If such standards are met, we
may require you to recondition all the damaged production. If we
determine that it is possible to recondition any damaged production and,
if you do not do so, we will value the damaged production at the
reference maximum dollar amount, except if your damaged production
undergoes a USDA inspection and is stored by your packer with other
producer's production to be reconditioned at a later date. If we agree,
in writing, that it is not practical to recondition the damaged
production, we will determine the number of tons meeting RAC standards
that could be obtained if the production were reconditioned.
(b) If the representative sample of raisins that we require you to
recondition does not meet RAC standards for marketable raisins after
reconditioning, the reconditioning payment will be the actual cost you
incur to recondition the sample, not to exceed an amount that is
reasonable and customary for such reconditioning, regardless of the
coverage level selected.
(c) A reconditioning payment, based on the actual (unadjusted)
weight of the raisins, will be made if:
(1) Insured raisin production:
(i) Is damaged by rain within the insurance period;
(ii) Is reconditioned by washing with water and then drying;
(iii) Is insured at a coverage level greater than that applicable to
the catastrophic risk protection plan of insurance; and either
[[Page 237]]
(2) The damaged production undergoes an inspection by USDA and is
found to contain mold, embedded sand, or other rain-caused contamination
determined by micro-analysis in excess of standards established by the
RAC, or is found to contain moisture in excess of 18 percent; or
(3) We give you consent to recondition the damaged production.
(d) Your request for consent to any wash-and-dry reconditioning must
identify the acreage on which the production to be reconditioned was
damaged in order to be eligible for a reconditioning payment.
(e) The reconditioning payment for raisins that meet RAC standards
for marketable raisins after reconditioning will be the lesser of your
actual cost for reconditioning or the amount determined by:
(1) Multiplying the greater of $125.00 or the reconditioning dollar
amount per ton contained in the Special Provisions by your coverage
level;
(2) Multiplying the result of section 11(e)(1) by the actual number
of tons of raisins (unadjusted weight) that are wash-and-dry
reconditioned; and
(3) Multiplying the result of section 11(e)(2) by your share.
(f) Only one reconditioning payment will be made for any lot of
raisins damaged during the crop year. Multiple reconditioning payments
for the same production will not be made.
12. Duties in the Event of Damage or Loss
(a) In addition to the requirements of section 14 (Duties in the
Event of Damage or Loss) of the Basic Provisions (Sec. 457.8), the
following will apply:
(1) If you intend to claim an indemnity on any unit, you must give
us notice within 72 hours of the time the rain fell on the raisins. We
may reject any claim for indemnity if such notice is later. You must
provide us the following information when you give us this notice:
(i) The grape variety;
(ii) The location of the vineyard and number of acres; and
(iii) The number of vines from which the raisins were harvested.
(2) We will not pay any indemnity unless you:
(i) Authorize us in writing to obtain all relevant records from any
raisin packer, raisin reconditioner, the RAC, or any other person who
may have such records. If you fail to meet the requirements of this
subsection, all insured production will be considered undamaged and
valued at the reference maximum dollar value.
(ii) Upon our request, provide us with records of previous years'
production and acreage. This information may be used to establish the
amount of insured tonnage when insurable damage results in discarded
production.
(b) In lieu of the provisions in section 14 (Duties in the Event of
Damage or Loss) of the Basic Provisions (Sec. 457.8) that require you to
submit a claim for indemnity not later than 60 days after the end of the
insurance period, any claim for indemnity must be submitted to us not
later than March 31 following the date for the end of the insurance
period.
13. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the acreage from which
raisins were removed for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured tonnage of raisins by the reference
maximum dollar amount and your coverage level percentage;
(2) Subtracting from the total in section 13(b)(1) the total value
of all insured damaged and undamaged raisins; and
(3) Multiplying the result of section 13(b)(2) by your share.
(c) For the purpose of determining the amount of indemnity, your
share will not exceed the lesser of your share at the time insurance
attaches or at the time of loss.
(d) Undamaged raisins or raisins damaged solely by uninsured causes
will be valued at the reference maximum dollar amount.
(e) Raisins damaged partially by rain and partially by uninsured
causes will be valued at the highest prices obtainable, adjusted for any
reduction in value due to uninsured causes.
(f) Raisins that are damaged by rain, but that are reconditioned and
meet RAC standards for raisins, will be valued at the reference maximum
dollar amount.
(g) The value to count for any raisins produced on the unit that are
damaged by rain and not removed from the vineyard will be the larger of
the appraised salvage value or $35.00 per ton, except that any raisins
that are damaged and discarded from trays or are lost from trays
scattered in the vineyard as part of normal handling will not be
considered to have any value. You must box and deliver any raisins that
can be removed from the vineyard.
(h) At our sole option, we may acquire all the rights and title to
your share of any raisins damaged by rain. In such event, the raisins
will be valued at zero in determining the amount of loss and we will
have the right of ingress and egress to the extent necessary to
[[Page 238]]
take possession, care for, and remove such raisins.
(i) Raisins destroyed, put to another use without our consent, or
abandoned will be valued at the reference maximum dollar amount.
14. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 12070, Mar. 14, 1997, as amended at 62 FR 65170, Dec. 10, 1997]
Sec. 457.125 Safflower crop insurance provisions.
The safflower crop insurance provisions for the 2003 and succeeding
crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Safflower Crop Insurance Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Harvest. Collecting the safflower seed by combining or threshing.
Local market price. The cash price per pound for undamaged safflower
(test weight of 35 pounds per bushel or higher and seed damage less than
25 percent) offered by buyers.
Nurse crop (companion crop). A crop planted into the same acreage as
another crop, that is intended to be harvested separately, and which is
planted to improve growing conditions for the crop with which it is
grown.
Planted acreage--In addition to the definition contained in the
Basic Provisions, safflowers must initially be planted in rows, unless
otherwise provided by the Special Provisions, actuarial documents, or by
written agreement.
Pound. Sixteen ounces avoirdupois.
Value per pound. The cash price per pound for damaged safflower
(test weight below 35 pounds per bushel, seed damage in excess of 25
percent, or both).
2. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 (Insurance Guarantees,
Coverage Levels, and Prices for Determining Indemnities) of the Basic
Provisions (Sec. 457.8), you may select only one price election for all
the safflower in the county insured under this policy unless the Special
Provisions provide different price elections by type, in which case you
may select one price election for each safflower type designated in the
Special Provisions. The price elections you choose for each type must
have the same percentage relationship to the maximum price offered by us
for each type. For example, if you choose 100 percent of the maximum
price election for one type, you must also choose 100 percent of the
maximum price election for all other types.
3. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is August 31 preceding
the cancellation date for California, and December 31 preceding the
cancellation date for all other states.
4. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are:
------------------------------------------------------------------------
Cancellation and termination
State dates
------------------------------------------------------------------------
California............................. December 31.
All other states....................... March 15.
------------------------------------------------------------------------
5. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), the crop insured will be all safflower in the county for
which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is planted for harvest as safflower seed;
(c) That is not (unless allowed by the Special Provisions or by
written agreement):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
6. Insurable Acreage
In addition to the provisions of section 9 (Insurable Acreage) of
the Basic Provisions (Sec. 457.8), we will not insure:
(a) Safflower planted on land on which safflower, sunflower seed,
any variety of dry
[[Page 239]]
beans, soybeans, mustard, rapeseed, or lentils were grown the preceding
crop year, unless other rotation requirements are specified in the
Special Provisions or we agree in writing to insure such acreage; or
(b) Any acreage of safflower damaged before the final planting date,
to the extent that the majority of producers in the area would normally
not further care for the crop, unless the crop is replanted or we agree
that it is not practical to replant.
7. Insurance Period
In accordance with the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8), the calendar date for the end of
the insurance period is October 31 immediately following planting.
8. Causes of Loss
In accordance with the provisions of section 12 (Causes of Loss) of
the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife, unless proper measures to control wildlife have not
been taken;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if caused by an insured
cause of loss that occurs during the insurance period.
9. Replanting Payment
(a) In accordance with section 13 (Replanting Payment) of the Basic
Provisions (Sec. 457.8), a replanting payment is allowed if the crop is
damaged by an insurable cause of loss to the extent that the remaining
stand will not produce at least 90 percent of the production guarantee
for the acreage and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be
the lesser of 20 percent of the production guarantee or 160 pounds,
multiplied by your price election, multiplied by your insured share.
(c) When safflower is replanted using a practice that is uninsurable
as an original planting, the liability on the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
10. Duties in the Event of Damage or Loss
In accordance with the requirements of section 14 (Duties in the
Event of Damage or Loss) of the Basic Provisions (Sec. 457.8), the
representative samples of the unharvested crop must be at least 10 feet
wide and extend the entire length of each field in the unit. The samples
must not be harvested or destroyed until the earlier of our inspection
or 15 days after harvest of the balance of the unit is completed.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective
price election;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted of each type if
applicable, (see section 11(c)) by the respective price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the results from the total in section 11(b)(5) from
the results in section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
(c) The total production to count (in pounds) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for the acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies and excess moisture in accordance with
section 11(d)); and
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for,
[[Page 240]]
representative samples of the crop in locations acceptable to us (The
amount of production to count for such acreage will be based on the
harvested production or appraisals from the samples at the time harvest
should have occurred. If you do not leave the required samples intact,
or fail to provide sufficient care for the samples, our appraisal made
prior to giving you consent to put the acreage to another use will be
used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature safflower may be adjusted for excess moisture and quality
deficiencies. If moisture adjustment is applicable, it will be made
prior to any adjustment for quality.
(1) Production will be reduced by 0.12 percent for each 0.1
percentage point of moisture in excess of 8 percent. We may obtain
samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if such
production:
(i) Has a test weight below 35 pounds per bushel;
(ii) Has seed damage in excess of 25 percent; or
(iii) Contains substances or conditions that are identified by the
Food and Drug Administration or other public health organizations of the
United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a
cause of loss against which insurance is provided under these crop
provisions and that occurred within the insurance period;
(ii) The deficiencies, substances, or conditions result in a value
per pound that is less than the local market price;
(iii) All determinations of these deficiencies, substances, or
conditions are made using samples of the production obtained by us or by
a disinterested third party approved by us;
(iv) With regard to deficiencies in quality (except test weight,
which may be determined by our loss adjuster), the samples are analyzed
by:
(A) A grader licensed under the United States Agricultural Marketing
Act or the United States Warehouse Act;
(B) A grader licensed under State law and employed by a warehouse
operator who has a storage agreement with the Commodity Credit
Corporation; or
(C) A grader not licensed under State law, but who is employed by a
warehouse operator who has a commodity storage agreement with the
Commodity Credit Corporation and is in compliance with State law
regarding warehouses; and
(v) With regard to substances or conditions injurious to human or
animal health, the samples are analyzed by a laboratory approved by us.
(4) Safflower production that is eligible for quality adjustment, as
specified in sections 11(d) (2) and (3), will be reduced as follows:
(i) In accordance with the quality adjustment factors contained in
the Special Provisions; or
(ii) If quality adjustment factors are not contained in the Special
Provisions:
(A) By determining the value per pound and the local market price on
the earlier of the date such quality adjusted production is sold or the
date of final inspection for the unit. Discounts used to establish the
value per pound will be limited to those which are usual, customary, and
reasonable. The value per pound will not be reduced for:
(1) Moisture content;
(2) Damage due to uninsured causes; or
(3) Drying, handling, processing, or any other costs associated with
normal harvesting, handling, and marketing of safflower. We may obtain
values per pound from any buyer of our choice. If we obtain values per
pound from one or more buyers located outside your local market area, we
will reduce such values per pound by the additional costs required to
deliver the production to those buyers.
(B) Divide the value per pound by the local market price to
determine the quality adjustment factor; and
(C) Multiply the adjustment factor by the number of pounds of the
damaged production remaining after any reduction due to excessive
moisture to determine the net production to count.
(e) Any production harvested from other plants growing in the
insured crop may be counted as production of the insured crop on a
weight basis.
12. Prevented Planting
Your prevented planing coverage will be 60 percent of your
production guarantee for timely planted acreage. If you have limited or
aditional levels of coverage, as specified in 7 CFR part 400, subpart T,
and pay an additional premium, you may increase your prevented planting
coverage to a level specified in the actuarial documents.
[62 FR 42649, Aug. 8, 1997, as amended at 62 FR 65171, Dec. 10, 1997; 67
FR 55690, Aug. 30, 2002]
[[Page 241]]
Sec. 457.126 Popcorn crop insurance provisions.
The Popcorn Crop Insurance Provisions for the 1999 and succeeding
crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Popcorn Crop Insurance Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Base contract price. The price stipulated on the contract executed
between you and the processor before any adjustments for quality.
Harvest. Removing the grain or ear from the stalk either by hand or
by machine.
Merchantable popcorn. Popcorn that meets the provisions of the
processor contract.
Planted acreage. In addition to the definition contained in the
Basic Provisions, popcorn must initially be planted in rows far enough
apart to permit mechanical cultivation, unless otherwise provided by the
Special Provisions, actuarial documents, or by written agreement.
Pound. Sixteen (16) ounces avoirdupois.
Practical to replant. In addition to the definition contained in the
Basic Provisions, it will not be considered practical to replant unless
production from the replanted acreage can be delivered under the terms
of the popcorn processor contract, or the processor agrees in writing
that it will accept the production from the replanted acreage.
Processor. Any business enterprise regularly engaged in processing
popcorn that possesses all licenses, permits or approved inspections for
processing popcorn required by the state in which it operates, and that
possesses facilities, or has contractual access to such facilities, with
enough equipment to accept and process the contracted popcorn within a
reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a
processor, containing at a minimum:
(a) The producer's commitment to plant and grow popcorn, and to
deliver the popcorn production to the processor;
(b) The processor's commitment to purchase all the production stated
in the processor contract;
(c) A date, if specified on the processor's contract, by which the
crop must be harvested to be accepted; and
(d) A base contract price.
Multiple contracts with the same processor, each of which stipulates a
specific amount of production to be delivered under the terms of the
processor contact, will be considered as a single processor contract.
2. Unit Division
(a) For processor contracts that stipulate the amount of production
to be delivered:
(1) In lieu of the definition contained in the Basic Provisions, a
basic unit will consist of all the acreage planted to the insured crop
in the county that will be used to fulfill contracts with each
processor;
(i) There will be no more than one basic unit for all production
contracted with each processor contract;
(ii) In accordance with section 13 of these Crop Provisions, all
production from any basic unit in excess of the amount under contract
will be included as production to count if such production is applied to
any other basic unit for which the contracted amount has not been
fulfilled; and
(2) Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable.
(b) For any processor contract that stipulates only the number of
acres to be planted, the provisions contained in section 34 of the Basic
Provisions will apply.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions, you may select only one price election for all the popcorn
in the county insured under this policy unless the Special Provisions
provide different price elections by type, in which case you may select
one price election for each popcorn type designated in the Special
Provisions. The price elections you choose for each type must have the
same percentage relationship to the maximum price offered by us for each
type. For example, if you choose 100 percent of the maximum price
election for one type, you must also choose 100 percent of the maximum
price election for all other types.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
[[Page 242]]
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
------------------------------------------------------------------------
Cancellation and termination
State and county dates
------------------------------------------------------------------------
Val Verde, Edwards, Kerr, Kendall, Bexar, January 15.
Wilson, Karnes, Goliad, Victoria, and
Jackson counties Texas, and all Texas
counties lying south thereof.
All other Texas counties and all other March 15.
states.
------------------------------------------------------------------------
6. Report of Acreage
In addition to the provisions of section 6 of the Basic Provisions,
you must provide a copy of all processor contracts to us on or before
the acreage reporting date.
7. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the popcorn in the county for which a premium rate
is provided by the actuarial documents:
(1) In which you have a share;
(2) That is planted for harvest as popcorn;
(3) That is grown under, and in accordance with the requirements of,
a processor contract executed on or before the acreage reporting date
and is not excluded from the processor contract at any time during the
crop year; and
(4) That is not (unless allowed by the Special Provisions or by
written agreement):
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume.
(b) You will be considered to have a share in the insured crop if,
under the processor contract, you retain control of the acreage on which
the popcorn is grown, you have a risk of loss, and the processor
contract provides for delivery of popcorn under specified conditions and
at a stipulated base contract price.
(c) A popcorn producer who is also a processor may be able to
establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) The Board of Directors or officers of the processor must, prior
to the sales closing date, execute and adopt a resolution that contains
the same terms as an acceptable processor contract. Such resolution will
be considered a processor contract under this policy; and
(3) Our inspection reveals that the processing facilities comply
with the definition of a processor contained in these Crop Provisions.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions,
any acreage of the insured crop damaged before the final planting date,
to the extent that the majority of producers in the area would normally
not further care for the crop, must be replanted unless we agree that it
is not practical to replant.
9. Insurance Period
In lieu of the provisions contained in section 11 of the Basic
Provisions, regarding the end of the insurance period, insurance ceases
on each unit or part of a unit at the earliest of:
(a) The date the popcorn:
(1) Was destroyed;
(2) Should have been harvested but was not harvested;
(3) Was abandoned; or
(4) Was harvested;
(b) When the processor contract stipulates a specific amount of
production to be delivered, the date the production accepted by the
processor equals the contracted amount of production;
(c) Final adjustment of a loss; or
(d) December 10 immediately following planting.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by a cause of
loss specified in sections 10(a)(1) through (7) that occurs during the
insurance period.
(b) In addition to the causes of loss excluded by section 12 of the
Basic Provisions, we do not insure against any loss of production due
to:
(1) Damage resulting from frost or freeze after the date designated
in the Special Provisions; or
(2) Failure to follow the requirements contained in the processor
contract.
11. Replanting Payment
(a) In accordance with section 13 of the Basic Provisions, a
replanting payment is allowed if the crop is damaged by an insurable
[[Page 243]]
cause of loss to the extent that the remaining stand will not produce at
least 90 percent of the production guarantee for the acreage and it is
practical to replant.
(b) The maximum amount of the replanting payment per acre will be
the lesser of 20 percent of the production guarantee or 150 pounds,
multiplied by your price election, multiplied by your insured share.
(c) When popcorn is replanted using a practice that is uninsurable
as an original planting, our liability for the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
12. Duties in the Event of Damage or Loss
In accordance with the requirements of section 14 of the Basic
Provisions, the representative samples of the unharvested crop must be
at least 10 feet wide and extend the entire length of each field in the
unit. The samples must not be destroyed until the earlier of our
inspection or 15 days after harvest of the balance of the unit is
completed.
13. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by
its respective production guarantee;
(2) Multiplying the result of section 13(b)(1) by the respective
price election for each type, if applicable;
(3) Totaling the results of section 13(b)(2) if there is more than
one type;
(4) Multiplying the total production to count (see section 13(c)),
of each type if applicable, by its respective price election;
(5) Totaling the results of section 13(b)(4) if there is more than
one type;
(6) Subtracting the result of section 13(b)(4) from the result in
section 13(b)(2) if there is only one type or subtracting the result of
section 13(b)(5) from the result of section 13(b)(3) if there is more
than one type; and
(7) Multiplying the result of section 13(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of Type A popcorn in the unit,
with a guarantee of 2,500 pounds per acre and a price election of $.12
per pound. You are only able to harvest 150,000 pounds. Your indemnity
would be calculated as follows:
1.................... 100 acres x 2,500 pounds = 250,000 pound
guarantee;
2.................... 250,00 pounds x $.12 price election = $30,000
value of guarantee;
4.................... 150,000 pounds production to count x $.12 price
election = $18,000 value of production to count;
6.................... $30,000-$18,000 = $12,000 loss; and
7.................... $12,000 x 100 percent share = $12,000 indemnity
payment.
You also have a 100 percent share in 150 acres of type B popcorn in the
same unit, with a guarantee of 2,250 pounds per acre and a price
election of $.10 per pound. You are only able to harvest 70,000 pounds.
Your total indemnity for both popcorn types A and B would be calculated
as follows:
1.................... 100 acres x 2,500 pounds = 250,000 guarantee for
type A and 150 acres x 2,250 pounds = 337,500
pound guarantee for type B;
2.................... 250,000 pound guarantee x $.12 price election =
$30,000 value of guarantee for type A and
337,500 pound guarantee x $.10 price election =
$33,750 value guarantee for type B;
3.................... $30,000 + $33,750 = $63,750 total value
guarantee;
4.................... 150,000 pounds x $.12 price election = $18,000
value of production to count for type A and
70,000 pounds x $.10 price election = $7,000
value of production to count for type B;
5.................... $18,000 + $7,000 = $25,000 total value of
production to count;
6.................... $63,750-$25,000 = $38,750 loss; and
7.................... $38,750 x 100 percent = $38,750 indemnity
payment.
(c) The total production to count (in pounds) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide production records;
(ii) Unharvested production (mature unharvested production may be
adjusted for
[[Page 244]]
quality deficiencies and excess moisture in accordance with section
13(d));
(iii) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested;
(2) All harvested production from the insurable acreage in the unit;
(3) All harvested and appraised production lost or damaged by
uninsured causes; and
(4) For processor contracts that stipulate the amount of production
to be delivered, all harvested popcorn production from any other
insurable unit that has been used to fulfill your processor contract
applicable to this unit.
(5) Any production from yellow or white dent corn will be counted as
popcorn on a weight basis and any production harvested from plants
growing in the insured crop may be counted as popcorn production on a
weight basis.
(6) Any ear production for which we cannot determine a shelling
factor will be considered to have an 80 percent shelling factor.
(d) Mature popcorn may be adjusted for excess moisture and quality
deficiencies. If moisture adjustment is applicable, it will be made
prior to any adjustment for quality.
(1) Production will be reduced by 0.12 percent for each 0.1
percentage point for moisture in excess of 15 percent. We may obtain
samples of the production to determine the moisture content.
(2) Popcorn production will be eligible for quality adjustment if,
due to an insurable cause of loss that occurs within the insurance
period, it is not merchantable popcorn and is rejected by the processor.
The production will be adjusted by:
(i) Dividing the value per pound of the damaged popcorn by the base
contract price per pound for undamaged popcorn; and
(ii) Multiplying the result by the number of pounds of such popcorn.
14. Late Planting
Late planting provisions in the Basic Provisions are applicable for
popcorn if you provide written approval from the processor by the
acreage reporting date that it will accept the production from the late
planted acres when it is expected to be ready for harvest.
15. Prevented Planting
Your prevented planting coverage will be 60 percent of your
production guarantee for timely planted acreage. If you have limited or
additional levels of coverage, as specified in 7 CFR part 400, subpart
T, and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[63 FR 33838, June 22, 1998]
Sec. 457.127 [Reserved]
Sec. 457.128 Guaranteed production plan of fresh market tomato crop
insurance provisions.
The Guaranteed Production Plan of Fresh Market Tomato Crop Insurance
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Guarantee Production Plan of Fresh Market Tomato Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Acre. Forty-three thousand five hundred sixty (43,560) square feet
of land when row widths do not exceed six feet, or if row widths exceed
six feet, the land area on which at least 7,260 linear feet of rows are
planted.
Carton. A container that contains 25 pounds of fresh tomatoes unless
otherwise provided in the Special Provisions.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
[[Page 245]]
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the field for the
purpose of picking all or a portion of the crop.
First fruit set. The date when 30 percent of the plants on the unit
have produced fruit that has reached a minimum size of one inch in
diameter.
Harvest. Picking of marketable tomatoes.
Mature green tomato. A tomato that:
(a) Has a heightened gloss due to a waxy skin that cannot be torn by
scraping;
(b) Has a well-formed jelly-like substance in the locules;
(c) Has seeds that are sufficiently hard so they are pushed aside
and not cut by a sharp knife in slicing; and
(d) Shows no red color.
Planting. Transplanting the tomato plants into the field.
Planting period. The time period designated in the Special
Provisions during which the tomatoes must be planted to be insured as
either spring-or fall-planted tomatoes.
Plant stand. The number of live plants per acre before any damage
occurs.
Potential production. The number of cartons per acre of mature green
or ripe tomatoes that the tomato plants would have produced by the end
of the insurance period:
(a) With a classification size of 6x7 (2-8/32 inch minimum diameter)
or larger for all types except cherry, roma, or plum; or
(b) Meeting the criteria specified in the Special Provisions for
cherry, roma, or plum types.
Practical to replant. In lieu of the definition of ``Practical to
replant'' contained in section 1 of the Basic Provisions (Sec. 457.8),
practical to replant is defined as our determination, after loss or
damage to the insured crop, based on factors, including but not limited
to moisture availability, condition of the field, time to crop maturity,
and marketing windows that replanting the insured crop will allow the
crop to attain maturity prior to the calendar date for the end of the
insurance period. In counties that do not have both spring and fall
planting periods, it will not be considered practical to replant after
the final planting date unless replanting is generally occurring in the
area. In counties that have spring and fall planting periods, it will
not be considered practical to replant after the final planting date for
the planting period in which the crop was initially planted.
Ripe tomato. A tomato that meets the definition of a mature green
tomato, except the tomato shows some red color and can still be packed
for fresh market under the agreement or contract with the packer.
Row width. The distance in feet from the center of one row of plants
to the center of an adjacent row.
2. Unit Division
(a) A basic unit, as defined in section 1 of the Basic Provisions,
will be divided into additional basic units by planting period, if
separate planting periods are provided for in the Special Provisions.
(b) Provisions in the Basic Provisions that allow optional units by
irrigated and non-irrigated practices are not applicable.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 (Insurance Guarantees,
Coverage Levels, and Prices for Determining Indemnities) of the Basic
Provisions (Sec. 457.8):
(a) You may select only one price election for all the tomatoes in
the county insured under this policy unless the Special Provisions
provide different price elections by type, in which case you may select
one price election for each tomato type designated in the Special
Provisions. The price election you choose for each type must have the
same percentage relationship to the maximum price offered by us for each
type. For example, if you choose 100 percent of the maximum price
election for one type, you must also choose 100 percent of the maximum
price election for all other types.
(b) The production guarantees per acre are progressive by stages and
increase at specified intervals to the final stage production guarantee.
The stages and production guarantees are as follows:
(1) For California:
------------------------------------------------------------------------
Percent of
stage 3
(final
Stage stage) Length of time
production
guarantee
------------------------------------------------------------------------
1......................... 50 From planting until first fruit
set.
2......................... 70 From first fruit set until
harvested.
3......................... 100 Harvested acreage.
------------------------------------------------------------------------
(2) For all other states, except California:
------------------------------------------------------------------------
Percent of
stage 4
(final
Stage stage) Length of time
production
guarantee
------------------------------------------------------------------------
1....... 50 From planting until qualifying
for stage 2.
2......................... 75 From the earlier of stakes
driven, one tie and pruning, or
30 days after planting until
qualifying for stage 3.
3......................... 90 From the earlier of the end of
stage 2 or 60 days after
planting until qualifying for
stage 4.
4......................... 100 From the earlier of 75 days
after planting or the beginning
of harvest.
------------------------------------------------------------------------
[[Page 246]]
(c) Any acreage of tomatoes damaged to the extent that producers in
the area generally would not further care for the tomatoes will be
deemed to have been destroyed even though you continue to care for the
tomatoes. The production guarantee for such acreage will be the
guarantee for the stage in which such damage occurs.
(d) Any production guarantees for cherry, roma, or plum type
tomatoes will be specified in the Special Provisions.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is September 30
preceding the cancellation date for counties with a January 15
cancellation date and December 31 preceding the cancellation date for
all other counties.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are:
Cancellation and Termination
------------------------------------------------------------------------
State Dates
------------------------------------------------------------------------
California, Florida, Georgia, and South January 15.
Carolina.
All other states....................... March 15.
------------------------------------------------------------------------
6. Report of Acreage
(a) In addition to the provisions of section 6 (Report of Acreage)
of the Basic Provisions (Sec. 457.8), you must report the row width.
(b) If spring and fall planting periods are allowed in the Special
Provisions you must report all the information required by section 6
(Report of Acreage) of the Basic Provisions (Sec. 457.8) and these Crop
Provisions by the acreage reporting date for each planting period.
7. Annual Premium
In lieu of provisions contained in the Basic Provisions
(Sec. 457.8), for determining premium amounts, the annual premium is
determined by multiplying the final stage production guarantee by the
price election, by the premium rate, by the insured acreage, by your
share at the time coverage begins, and by any applicable premium
adjustment factor contained in the Special Provisions.
8. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), the crop insured will be all the tomatoes in the county
for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are transplanted tomatoes that have been planted for
harvest as fresh market tomatoes;
(c) That are planted within the spring or fall planting periods, as
applicable, specified in the Special Provisions;
(d) That, on or before the acreage reporting date, are subject to
any agreement in writing (packing contract) executed between you and a
packer, whereby the packer agrees to accept and pack the production
specified in the agreement, unless you control a packing facility or an
exception exists in the Special Provisions; and
(e) That are not (unless allowed by the Special Provisions):
(1) Grown for direct marketing;
(2) Interplanted with another crop;
(3) Planted into an established grass or legume; or
(4) Cherry, roma, or plum type tomatoes.
9. Insurable Acreage
(a) In addition to the provisions of section 9 (Insurable Acreage)
of the Basic Provisions (Sec. 457.8):
(1) Any acreage of the insured crop damaged before the final
planting date, to the extent that the majority of growers in the area
would normally not further care for the crop, must be replanted unless
we agree that it is not practical to replant. Unavailability of plants
will not be considered a valid reason for failure to replant.
(2) We do not insure any acreage of tomatoes:
(i) Grown by any person if the person had not previously:
(A) Grown fresh market tomatoes for commercial sales; or
(B) Participated in the management of a fresh market tomato farming
operation, in at least one of the three previous years.
(ii) That does not meet the rotation requirements contained in the
Special Provisions;
(iii) On which tomatoes, peppers, eggplants, or tobacco have been
grown within the previous two years unless the soil was fumigated or
nematicide was applied before planting the tomatoes, except that this
limitation does not apply to a first planting in Pennsylvania or if
otherwise specified in the Special Provisions; or
(b) In lieu of the provisions of section 9 (Insurable Acreage) of
the Basic Provisions (Sec. 457.8), that prohibit insurance from
attaching if a crop has not been planted and harvested in at least one
of the three previous calendar years, we will insure newly cleared land
or former pasture land planted to fresh market tomatoes.
[[Page 247]]
10. Insurance Period
In lieu of the provisions of section 11 (Insurance Period) of the
Basic Provisions (Sec. 457.8):
(a) Coverage begins on each unit or part of a unit on the later of
the date you submit your application or when the tomatoes are planted.
(b) Coverage will end on any insured acreage at the earliest of:
(1) Total destruction of the tomatoes;
(2) Discontinuance of harvest;
(3) The date harvest should have started on any acreage that was not
harvested;
(4) 120 days after the date of transplanting or replanting;
(5) Completion of harvest;
(6) Final adjustment of a loss; or
(7) October 15 of the crop year in Delaware, Maryland, New Jersey,
North Carolina, and Virginia; October 31 of the crop year in California;
November 10 of the crop year in Florida, Georgia, and South Carolina;
and September 20 of the crop year in all other States.
11. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against damage or loss of production that occurs or becomes evident
after the tomatoes have been harvested.
12. Replanting Payment
(a) In accordance with section 13 (Replanting Payment) of the Basic
Provisions (Sec. 457.8), a replanting payment is allowed if the crop is
damaged by an insurable cause of loss and the acreage to be replanted
has sustained a loss in excess of 50 percent of the plant stand.
(b) The maximum amount of the replanting payment per acre will be:
(1) Seventy (70) cartons multiplied by your price election,
multiplied by your insured share for all insured tomatoes except cherry,
roma or plum types; and
(2) As specified in the Special Provisions for cherry, roma, or plum
types.
(c) In lieu of the provisions contained in section 13 (Replanting
Payment) of the Basic Provisions (Sec. 457.8) that permit only one
replanting payment each crop year, when both spring and fall planting
periods are contained in the Special Provisions, you may be eligible for
one replanting payment for acreage planted during each planting period
within the crop year.
13. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by
its respective production guarantee for the stage in which the damage
occurred;
(2) Multiplying the results of section 13(b)(1) by the respective
price election for each type, if applicable;
(3) Totaling the results of section 13(b)(2);
(4) Multiplying the total production to be counted of each type, if
applicable, (see section 13(c)) by the respective price election;
(5) Totaling the results of section 13(b)(4);
(6) Subtracting this result of section 13(b)(5) from the results in
section 13(b)(3); and
(7) Multiplying the result of section 13(b)(6) by your share.
(c) The total production to count (in cartons) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us;
(ii) Potential production lost due to uninsured causes;
(iii) Unharvested production of mature green and ripe tomatoes
remaining after harvest has ended:
(A) With a classification size of 6 x 7 (2\8/32\ inch minimum
diameter) or larger and that would grade eighty-five percent (85%) or
better U.S. No. 1 for types other than cherry, roma, or plum; or
[[Page 248]]
(B) That grade in accordance with the requirements specified in the
Special Provisions for cherry, roma or plum types.
(iv) Potential production on unharvested acreage and potential
production on acreage when final harvest has not been completed;
(v) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage:
(i) That is marketed, regardless of grade; and
(ii) That is unmarketed and:
(A) That grades eighty-five percent (85%) or better U.S. No. 1 with
a classification size of 6x7 (2-8/32 inch minimum diameter) or larger
for all types except cherry, roma, or plum; or
(B) That grade in accordance with the requirements specified in the
Special Provisions for cherry, roma, or plum types.
(d) Only that amount of appraised production that exceeds the
difference between the final stage guarantee and the stage guarantee
applicable to the acreage will be production to count.
14. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 23631, May 1, 1997; 62 FR 33539, June 20, 1997, as amended at 62
FR 65171, Dec. 10, 1997; 63 FR 36157, July 2, 1998; 63 FR 50753, Sept.
23, 1998]
Sec. 457.129 Fresh market sweet corn crop insurance provisions.
The fresh market sweet corn crop insurance provisions for the 2008
and succeeding crop years for all counties with a contract change date
on or after the effective date of this rule and for the 2009 and
succeeding crop years for all counties with a contract change date prior
to the effective date of this rule, as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Fresh Market Sweet Corn Crop Provisions
1. Definitions
Allowable cost. The dollar amount per container for harvesting,
packing, and handling as shown in the Special Provisions.
Amount of insurance (per acre). The dollar amount of coverage per
acre obtained by multiplying the reference maximum dollar amount shown
on the actuarial documents by the coverage level percentage you elect.
Average net value per container. The dollar amount obtained by
totaling the net values of all containers of sweet corn sold and
dividing the result by the total number of containers of all sweet corn
sold.
Container. The unit of measurement for the insured crop as specified
in the Special Provisions.
Crop year. In lieu of the definition of ``crop year'' contained in
section 1 of the Basic Provisions, for counties with fall, winter, and
spring planting periods or counties with fall and spring planting
periods, the period of time that begins on the first day of the earliest
planting period for fall planted sweet corn and continues through the
last day of the insurance period for spring planted sweet corn. For
counties with only spring planting periods, the period of time that
begins on the earliest planting period for spring planted sweet corn and
continues through the last day of the insurance period for spring
planted sweet corn. The crop year is designated by the calendar year in
which spring planted sweet corn is harvested.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling
[[Page 249]]
through an on-farm or roadside stand, farmer's market, and permitting
the general public to enter the field for the purpose of picking all or
a portion of the crop.
Harvest. Separation of ears of sweet corn from the plant by hand or
machine.
Marketable sweet corn. Sweet corn that is sold for any purpose or
grades U.S. No. 1 or better in accordance with the requirements of the
United States Standards for Grades of Sweet Corn.
Minimum value. The dollar amount per container shown in the Special
Provisions we will use to value marketable production to count.
Net value. The dollar value of packed and sold sweet corn obtained
by subtracting the allowable cost and any additional charges specified
in the Special Provisions from the gross value per container of sweet
corn sold. This result may not be less than zero.
Plant stand. The number of live plants per acre prior to the
occurrence of an insurable cause of loss.
Planted acreage. In addition to the definition contained in the
Basic Provisions, for each planting period, sweet corn seed must be
planted in rows far enough apart to permit mechanical cultivation,
unless otherwise provided by the Special Provisions, actuarial
documents, or by written agreement.
Planting period. The period of time designated in the actuarial
documents in which sweet corn must be planted to be considered fall,
winter, or spring-planted sweet corn.
Potential production. The number of containers of sweet corn that
the sweet corn plants will or would have produced per acre by the end of
the insurance period, assuming normal growing conditions and practices.
Practical to replant. In lieu of the definition in section 1 of the
Basic Provisions, our determination, after loss or damage to the insured
crop, based on factors, including but not limited to moisture
availability, condition of the field, marketing windows, and time to
crop maturity, that replanting to the insured crop will allow the crop
to attain maturity prior to the calendar date for the end of the
insurance period (inability to obtain seed will not be considered when
determining if it is practical to replant).
Sweet corn. A type of corn with kernels containing a high percentage
of sugar that is adapted for human consumption as a vegetable.
2. Unit Division
A basic unit, as defined in section 1 of the Basic Provisions, will
also be established for each planting period.
3. Amounts of Insurance and Production Stages
(a) In addition to the requirements of section 3 of the Basic
Provisions, you may select only one coverage level (and the
corresponding amount of insurance designated in the actuarial documents
for the applicable planting period and practice) for all the sweet corn
in the county insured under this policy.
(b) The amount of insurance you choose for each planting period and
practice must have the same percentage relationship to the maximum price
offered by us for each planting period and practice. For example, if you
choose 100 percent of the maximum amount of insurance for a specific
planting period and practice, you must also choose 100 percent of the
maximum amount of insurance for all other planting periods and
practices.
(c) The production reporting requirements contained in section 3 of
the Basic Provisions do not apply to sweet corn.
(d) If specified in the Special Provisions, we will limit your
amount of insurance per acre if you have not produced the minimum amount
of production of sweet corn contained in the Special Provisions in at
least one of the three most recent crop years.
(e) The amounts of insurance are progressive by stages as follows:
------------------------------------------------------------------------
Percent of
the amount
of
Stage insurance Length of time
per acre
that you
selected
------------------------------------------------------------------------
1................... 65 From planting through the beginning
of tasseling (which is when the
tassel becomes visible above the
whorl).
Final............... 100 From tasseling until the acreage is
harvested.
------------------------------------------------------------------------
(f) The indemnity payable for any acreage of sweet corn will be
based on the stage the plants had achieved when damage occurred. Any
acreage of sweet corn damaged in the first stage to the extent that the
majority of producers in the area would not normally further care for it
will have an amount of insurance based on the first stage for the
purposes of establishing an indemnity even if you continue to care for
the damaged sweet corn.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date shown
[[Page 250]]
below is the date preceding the cancellation date:
------------------------------------------------------------------------
State and county Date
------------------------------------------------------------------------
All Florida counties; and all Georgia April 30.
counties for which the Special
Provisions designate a fall planting
period.
All Georgia counties for which the November 30.
Special Provisions do not designate a
fall planting period; and all other
States.
------------------------------------------------------------------------
5. Cancellation and Termination dates
In accordance with section 2, the cancellation and termination dates
are:
------------------------------------------------------------------------
Cancellation and termination
State and county Dates
------------------------------------------------------------------------
Florida; Atkinson, Baker, Berrien, July 31.
Brantley, Camden, Colquitt, Cook,
Early, Mitchell, and Ware Counties
Georgia and all counties south thereof
for which the Special Provisions
designate a fall planting period.
Alabama; South Carolina; and all Georgia February 15.
Counties for which the Special
Provisions do not designate a fall
planting period.
All other States........................ March 15.
------------------------------------------------------------------------
6. Report of Acreage
In addition to the requirements of section 6 of the Basic
Provisions, you must report on or before the acreage reporting date
contained in the Special Provisions for each planting period, all the
acreage of sweet corn in the county insured under this policy in which
you have a share.
7. Annual Premium
In lieu of the premium amount determinations contained in section 7
of the Basic Provisions, the annual premium amount for each cultural
practice (e.g., fall-planted irrigated) is determined by multiplying the
final stage amount of insurance per acre by the premium rate for the
cultural practice as established in the Actuarial Table, by the insured
acreage, by your share at the time coverage begins, and by any
applicable premium adjustment factors contained in the actuarial
documents.
8. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the sweet corn in the county for which a premium
rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is:
(1) Planted to be harvested and sold as fresh market sweet corn;
(2) Planted within the planting periods designated in the actuarial
documents;
(3) Grown under an irrigated practice, unless otherwise provided in
the Special Provisions;
(4) Grown by a person who in at least one of the three previous crop
years:
(i) Grew sweet corn for commercial sale; or
(ii) Participated in managing a sweet corn farming operation;
(c) That is not:
(1) Interplanted with another crop;
(2) Planted into an established grass or legume; or
(3) Grown for direct marketing, unless otherwise provided in the
Special Provisions or by written agreement.
9. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions
any acreage of sweet corn damaged during the planting period in which
initial planting took place:
(a) Must be replanted if:
(1) Less than 75 percent of the plant stand remains;
(2) It is practical to replant; and
(3) The final day of the planting period has not passed at the time
the crop was damaged.
(b) Whenever sweet corn is initially planted during the fall or
winter planting periods and the final planting date for the planting
period has passed, but it is considered practical to replant, you may
elect:
(1) To replant such acreage and collect any replant payment due as
specified in section 12. The initial planting period coverage will
continue for such replanted acreage; or
(2) Not to replant such acreage and receive an indemnity based on
the stage of growth the plants had attained at the time of damage.
However, such an election will result in the acreage being uninsurable
in the subsequent planting period.
10. Insurance Period
In lieu of the provisions of section 11 of the Basic Provisions,
coverage begins on each unit or part of a unit the later of the date we
accept your application, or when the sweet corn is planted in each
planting period. Coverage ends at the earliest of:
(a) Total destruction of the sweet corn on the unit;
(b) Abandonment of the sweet corn on the unit;
(c) The date harvest should have started on the unit on any acreage
which will not be harvested;
(d) Final adjustment of a loss on the unit;
(e) Final harvest; or
(f) 100 days after the date of planting or replanting, unless
otherwise provided in the Special Provisions.
[[Page 251]]
11. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Wildlife;
(4) Volcanic eruption;
(5) Earthquake;
(6) Insects, but not damage due to insufficient or improper
application of pest control measures;
(7) Plant disease, but not damage due to insufficient or improper
application of disease control measures; or
(8) Failure of the irrigation water supply, if caused by an insured
cause of loss that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss due to:
(1) Failure to harvest in a timely manner unless harvest is
prevented by one of the insurable causes of loss specified in section
11(a); or
(2) Failure to market the sweet corn unless such failure is due to
actual physical damage caused by an insured cause of loss as specified
in section 11(a). For example, we will not pay you an indemnity if you
are unable to market due to quarantine, boycott, or refusal of any
person to accept production.
12. Replanting Payments
(a) In accordance with section 13 of the Basic Provisions, a
replanting payment is allowed if, due to an insured cause of loss, more
than 25 percent of the plant stand will not produce sweet corn and it is
practical to replant.
(b) The maximum amount of the replanting payment per acre will be
the lesser of your actual cost of replanting or the result obtained by
multiplying the per acre replanting payment amount contained in the
Special Provisions by your insured share.
(c) In lieu of the provisions contained in section 13 of the Basic
Provisions, limiting a replanting payment to one each crop year, only
one replanting payment will be made for acreage planted during each
planting period within the crop year.
13. Duties in the Event of Damage or Loss
In addition to the requirements contained in section 14 of the Basic
Provisions, if you intend to claim an indemnity on any unit:
(a) You also must give us notice not later than 72 hours after the
earliest of:
(1) The time you discontinue harvest of any acreage on the unit;
(2) The date harvest normally would start if any acreage on the unit
will not be harvested; or
(3) The calendar date for the end of the insurance period.
(b) If insurance is permitted by the Special Provisions or by
written agreement on acreage with production that will be sold by direct
marketing, you must notify us at least 15 days before any production
from any unit will be sold by direct marketing. We will conduct an
appraisal that will be used to determine the value of your production to
count for production that is sold by direct marketing. If damage occurs
after this appraisal, we will conduct an additional appraisal if you
notify us that additional damage has occurred. These appraisals, and/or
any acceptable production records provided by you, will be used to
determine the value of your production to count.
(c) Failure to give timely notice that production will be sold by
direct marketing will result in an appraised amount of production to
count of not less than the dollar amount of insurance (per acre) for the
applicable stage if such failure results in our inability to accurately
determine the value of production.
14. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage in each stage by the amount of
insurance per acre for the final stage;
(2) Multiplying each result in section 14(b)(1) by the percentage
for the applicable stage (see section 3(e));
(3) Totalling the results of section 14(b)(2);
(4) Subtracting either of the following values from the result of
section 14(b)(3):
(i) For other than catastrophic risk protection coverage, the total
value of production to be counted (see section 14(c)); or
(ii) For catastrophic risk protection coverage, the result of
multiplying the total value of production to be counted (see section
14(c)) by fifty-five percent; and
(5) Multiplying the result of section 14(b)(4) by your share.
------------------------------------------------------------------------
-------------------------------------------------------------------------
For example:
[[Page 252]]
You have a 100 percent share in 65.3 acres of fresh market sweet
corn in the unit (15.0 acres in stage 1 and 50.3 acres in the final
stage), with a dollar amount of insurance of $600 per acre. The
15.0 acre field was damaged by flood and appraisals of the crop
determined there was no potential production to be counted. From
the 50.3 acre field, you are only able to harvest 5,627 containers
of sweet corn. The net value of all sweet corn production sold
($3.11 per container) is greater than the Minimum Value per
container ($2.50). The 5,627 containers sold x $3.11 average net
value per container = $17,500 value of your production to count.
Your indemnity would be calculated as follows:
1 15.0 acres x $600 amount of insurance = $9,000 and
50.3 acres x $600 amount of insurance = $30,180;
2 $9,000 x .65 (percent for stage 1) = $5,850 and
$30,180 x 1.00 (percent for final stage) = $30,180;
3 $5,850 + $30,180 = $36,030 amount of insurance for the unit;
4 $36,030-$17,500 value of production to count = $18,530 loss;
5 $18,530 x 100 percent share = $18,530 indemnity payment.
------------------------------------------------------------------------
(c) The total value of production to count from all insurable
acreage on the unit will include:
(1) Not less than the amount of insurance per acre for the stage for
any acreage:
(i) That is abandoned;
(ii) Put to another use without our consent;
(iii) That is damaged solely by uninsured causes;
(iv) For which you fail to provide acceptable production records; or
(v) From which insurable production is sold by direct marketing and
you fail to meet the requirements contained in section 13(b) of these
Crop Provisions;
(2) The value of the following appraised sweet corn production will
not be less than the dollar amount obtained by multiplying the number of
containers of appraised sweet corn by the minimum value for the planting
period:
(i) Unharvested marketable sweet corn production (unharvested
production that is damaged or defective due to insurable causes and is
not marketable will not be counted as production to count unless such
production is later harvested and sold for any purpose);
(ii) Production lost due to uninsured causes; and
(iii) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) We may require you to continue to care for the crop so that a
subsequent appraisal may be made or the crop harvested to determine
actual production (If we require you to continue to care for the crop
and you do not do so, the original appraisal will be used); or
(B) You may elect to continue to care for the crop, in which case
the amount of production to count for the acreage will be the harvested
production, or our reappraisal if the crop is not harvested.
(3) The value of all harvested production of sweet corn from the
insurable acreage, except production that is sold by direct marketing as
specified in section (c)(4) below:
(i) For sold production, will be the greater of:
(A) The dollar amount obtained by multiplying the total number of
containers of sweet corn sold by the minimum value; or
(B) The dollar amount obtained by multiplying the average net value
per container from all sweet corn sold by the total number of all
containers of sweet corn sold.
(ii) For marketable sweet corn production that is not sold, will be
the dollar amount obtained by multiplying the number of containers of
such sweet corn by the minimum value for the planting period. Harvested
production that is damaged or defective due to insurable causes and is
not marketable will not be counted as production to count unless such
production is sold.
(4) If all the requirements of insurability are met, the value of
insurable production that is sold by direct marketing will be the
greater of:
(i) The actual value received by you for direct marketed production;
or
(ii) The dollar amount obtained by multiplying the total number of
containers of appraised sweet corn sold by direct marketing by the
minimum value.
15. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
16. Minimum Value Option
(a) The provisions of this option are continuous and will be
attached to and made a part of your insurance policy, if:
(1) You elect the Minimum Value Option on your application, or on a
form approved by us, on or before the sales closing date for
[[Page 253]]
the initial crop year in which you wish to insure sweet corn under this
option, and pay the additional premium indicated in the actuarial
documents for this optional coverage; and
(2) You have not elected coverage under the Catastrophic Risk
Protection Endorsement.
(b) In lieu of the provisions contained in section 14(c)(3) of these
Crop Provisions, the total value of harvested production that is not
sold by direct marketing will be determined as follows:
(1) The dollar amount obtained by multiplying the average net value
per container from all sweet corn sold (this result may not be less than
the minimum value option amount if such amount is provided in the
Special Provisions) by the total number of all containers of sweet corn
sold;
(2) For marketable sweet corn production that is not sold, the value
of such production will be the dollar amount obtained by multiplying the
total number of containers of such sweet corn by the minimum value for
the planting period. Harvested production that is damaged or defective
due to insurable causes and is not marketable will not be included as
production to count.
(c) If all the requirements of insurability are met, the value of
insurable production that is sold by direct marketing will be the
greater of:
(1) The actual value received by you for direct marketed production;
or
(2) The dollar amount obtained by multiplying the total number of
containers of sweet corn sold by direct marketing by the minimum value.
(d) This option may be canceled by either you or us for any
succeeding crop year by giving written notice on or before the
cancellation date preceding the crop year for which the cancellation of
this option is to be effective.
[62 FR 14783, Mar. 28, 1997; 62 FR 26205, May 13, 1997, as amended at 62
FR 65171, Dec. 10, 1997; 72 FR 54523, Sept. 26, 2007; 72 FR 62767, Nov.
7, 2007]
Sec. 457.130 Macadamia tree crop insurance provisions.
The macadamia tree crop insurance provisions for the 2011 and
succeeding crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider).
Both FCIC and reinsured policies:
Macadamia Tree Crop Provisions
1. Definitions
Age. The number of complete 12-month periods that have elapsed since
the month the trees were set out or were grafted, whichever is later.
Age determination will be made for each unit, or portion thereof, as of
January 1 of each crop year.
Crop year. A period beginning with the date insurance attaches to
the macadamia tree crop extending through December 31 of the same
calendar year. The crop year is designated by the calendar year in which
insurance attaches.
Destroyed. Trees damaged to the extent that we determine
replacement, including grafts, is required.
Good farming practices. The cultural practices generally in use in
the county for the crop to have normal growth and vigor, and are those
recognized by the National Institute of Food and Agriculture as
compatible with agronomic and weather conditions in the area.
Graft. The uniting of a macadamia shoot to an established macadamia
tree rootstock for future production of macadamia nuts.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Irrigated practice. A method by which the normal growth and vigor of
the insured trees is maintained by artificially applying adequate
quantities of water during the growing season by appropriate systems and
at the proper times.
Rootstock. The root and stem portion of a macadamia tree to which a
macadamia shoot can be grafted.
2. Unit Division
(a) Sections 34(b)(1), (3), and (4) of the Basic Provisions are not
applicable.
(b) Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Unless otherwise allowed
by written agreement, optional units may be established only if each
optional unit:
(1) Contains at least 80 acres of insurable age macadamia trees; or
(2) Is located on non-contiguous land.
(c) You must have provided records, which can be independently
verified, of acreage and age of trees for each unit for at least the
last crop year.
3. Insurance Guarantees, Coverage Levels, and Dollar Amounts for
Determining Indemnities
(a) In addition to the requirements of section 3 (Insurance
Guarantees, Coverage Levels, and Prices for Determining Indemnities) of
the Basic Provisions (Sec. 457.8):
[[Page 254]]
(1) You may select only one dollar amount of insurance for all the
macadamia trees in the county in each age group contained in the
actuarial table that are insured under this policy. The dollar amount of
insurance you choose for each age group must have the same percentage
relationship to the maximum dollar amount offered by us for each age
group. For example, if you choose 100 percent of the maximum dollar
amount of insurance for one age group, you must also choose 100 percent
of the maximum dollar amount of insurance for all other age groups.
(2) If the stand is less than 90 percent, based on the original
planting pattern, the dollar amount of insurance will be reduced 1
percent for each percent below 90 percent. For example, if the dollar
amount of insurance you selected is $2,000 and the stand is 85 percent
of the original stand, the dollar amount of insurance on which any
indemnity will be based is $1,900 ($2,000 multiplied by 0.95).
(3) You must report, by the sales closing date contained in the
Special Provisions, by type if applicable:
(i) Any damage, removal of trees, change in practices, or any other
circumstance that may reduce the dollar amount of insurance and the
number of affected acres;
(ii) The number of trees on insurable and uninsurable acreage;
(iii) The month and year on which the trees were set out or grafted
and the planting pattern;
(iv) For the first year of insurance following replacement, the
month and year of replacement if more than 10 percent of the trees on
any unit have been replaced in the previous five crop years; and
(v) For the first year of insurance for acreage interplanted with
another perennial crop, and any time the planting pattern of such
acreage is changed:
(A) The age of the interplanted crop, and type if applicable;
(B) The planting pattern; and
(C) Any other information that we request in order to establish your
dollar amount of insurance.
We will reduce the dollar amount of insurance as necessary, based on
our estimate of the effect of interplanted perennial crop, removal of
trees, damage, change in practices, and any other circumstance that
adversely affects the insured crop. If you fail to notify us of any
circumstance that may reduce your dollar amount of insurance from
previous levels, we will reduce your dollar amount of insurance as
necessary at any time we become aware of the circumstance.
(b) The production reporting requirements contained in section 3
(Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities) of the Basic Provisions (Sec. 457.8), do not apply to
macadamia trees.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is August 31 preceding
the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are December 31.
6. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), the crop insured will be all macadamia trees in the county
for which a premium rate is provided by the actuarial table:
(a) In which you have a share;
(b) That are grown for the production of macadamia nuts;
(c) For which the rootstock is adapted to the area;
(d) That are at least one year of age when the insurance period
begins; and
(e) That, if the orchard is inspected, is considered acceptable by
us.
7. Insurable Acreage
In lieu of the provisions in section 9 (Insurable Acreage) of the
Basic Provisions (Sec. 457.8), that prohibit insurance attaching to a
crop planted with another crop, macadamia trees interplanted with
another perennial crop are insurable unless we inspect the acreage and
determine that it does not meet the requirements contained in your
policy.
8. Insurance Period
(a) In accordance with the provisions of section 11 (Insurance
Period) of the Basic Provisions (Sec. 457.8):
(1) Coverage begins on January 1 of each crop year, except that for
the year of application, if your application is received after December
22 but prior to January 1, insurance will attach on the 10th day after
your properly completed application is received in our local office,
unless we inspect the acreage during the 10-day period and determine
that it does not meet insurability requirements. You must provide any
information that we require for the crop or to determine the condition
of the orchard.
(2) The calendar date for the end of the insurance period for each
crop year is December 31.
(b) In addition to the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance
[[Page 255]]
will be considered to have attached to such acreage on the calendar date
for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage
of macadamia trees on or before the acreage reporting date for the crop
year, insurance will not be considered to have attached to, and no
premium or indemnity will be due for such acreage for that crop year
unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
9. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the orchard;
(3) Earthquake;
(4) Volcanic eruption;
(5) Wildlife, unless proper measures to control wildlife have not
been taken; or
(6) Failure of irrigation water supply, if caused by an insured
cause of loss that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against damage due to disease or insect infestation, unless adverse
weather:
(1) Prevents the proper application of control measures or causes
properly applied control measures to be ineffective; or
(2) Causes disease or insect infestation for which no effective
control mechanism is available.
10. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 (Duties in the Event
of Damage or Loss) of the Basic Provisions (Sec. 457.8), in case of
damage or probable loss, if you intend to claim an indemnity on any
unit, you must allow us to inspect all insured acreage before pruning or
removing any damaged trees.
11. Settlement of Claim
(a) We will determine your loss on a unit basis.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by the dollar amount of
insurance per acre for each age group;
(2) Totaling the results in section 11(b)(1);
(3) Multiplying the total dollar amount of insurance obtained in
section 11(b)(2) by the applicable percent of loss, which is determined
as follows:
(i) Subtract the coverage level percent you elected from 100
percent;
(ii) Subtract the result obtained in section 11(b)(3)(i) from the
actual percent of loss;
(iii) Divide the result in section 11(b)(3)(ii) by the coverage
level you elected (For example, if you elected the 75 percent coverage
level and your actual percent of loss was 70 percent, the percent of
loss specified in section 11(b)(3) would be calculated as follows: 100%
- 75% = 25%; 70% - 25% = 45%; 45% / 75% = 60%.); and
(4) Multiply the result in section 11(b)(3) by your share.
(c) The total amount of loss will include both trees damaged and
trees destroyed as follows:
(1) Any orchard with over 80 percent actual damage due to an insured
cause of loss will be considered to be 100 percent damaged; and
(2) Any percent of damage by uninsured causes will not be included
in the percent of loss.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 35668, July 2, 1997, as amended at 62 FR 65172, Dec. 10, 1997; 75
FR 15887, Mar. 30, 2010; 76 FR 4804, Jan. 27, 2011]
Sec. 457.131 Macadamia nut crop insurance provisions.
The macadamia nut crop insurance provisions for the 2012 and
succeeding crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Macadamia Nut Crop Provisions
1. Definitions
Age. The number of complete 12-month periods that have elapsed since
the month the trees were set out or were grafted, whichever is later. An
age determination will be made for each unit, or portion thereof, as of
January 1 of each crop year.
Crop year. A period beginning with the date insurance attaches to
the macadamia nut crop and extending through the normal harvest time.
The crop year is designated by the
[[Page 256]]
calendar year in which the insurance period ends.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the orchard for the
purpose of picking all or a portion of the crop.
Graft. The uniting of a macadamia shoot to an established macadamia
tree rootstock for future production of macadamia nuts.
Harvest. Picking of mature macadamia nuts from the ground.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Pound. A unit of weight equal to 16 ounces avoirdupois.
Production guarantee (per acre). The number of wet, in-shell pounds
determined by multiplying the approved APH yield per acre by the
coverage level percentage you elect.
Rootstock. The root and stem portion of a macadamia tree to which a
macadamia shoot can be grafted.
Wet in-shell. The weight of the macadamia nuts as they are removed
from the orchard with the nut meats in the shells after removal of the
husk but prior to being dried.
2. Unit Division
(a) Section 34(b)(1) of the Basic Provisions is not applicable.
(b) Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Unless otherwise allowed
by written agreement, optional units may be established only if each
optional unit:
(1) Contains at least 80 acres of bearing macadamia trees; or
(2) Is located on non-contiguous land.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 (Insurance Guarantees,
Coverage Levels, and Prices for Determining Indemnities) of the Basic
Provisions (Sec. 457.8):
(a) You may select only one price election for all the macadamia
nuts in the county insured under this policy unless the Special
Provisions provide different price elections by type, in which case you
may select one price election for each macadamia nut type designated in
the Special Provisions. The price elections you choose for each type
must have the same percentage relationship to the maximum price offered
by us for each type. For example, if you choose 100 percent of the
maximum price election for one type, you must also choose 100 percent of
the maximum price election for all other types.
(b) You must report, by the production reporting date designated in
section 3 (Insurance Guarantees, Coverage Levels, and Prices for
Determining Indemnities) of the Basic Provisions (Sec. 457.8), by type
if applicable:
(1) Any damage, removal of trees, change in practices, or any other
circumstance that may reduce the expected yield below the yield upon
which the insurance guarantee is based and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and anytime the planting pattern of such acreage
is changed:
(i) The age of the interplanted crop, and type if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your approved yield.
We will reduce the yield used to establish your production guarantee
as necessary, based on our estimate of the effect of the following:
interplanted perennial crop; removal of trees; damage; change in
practices and any other circumstance on the yield potential of the
insured crop. If you fail to notify us of any circumstance that may
reduce your yields from previous levels, we will reduce your production
guarantee as necessary at any time we become aware of the circumstance.
(c) The yield used to compute your production guarantee will be
determined in accordance with Actual Production History (APH)
regulations, 7 CFR part 400, subpart G, and applicable policy provisions
unless damage or changes to the orchard or trees require establishment
of the yield by another method. In the event of such damage or changes,
the yield will be based on our appraisal of the potential of the insured
acreage for the crop year.
(d) Instead of reporting your macadamia nut production for the
previous crop year, as required by section 3 of the Basic Provisions
(Sec. 457.8), there is a one year lag period. Each crop year you must
report your production from two crop years ago, e.g., on the 2001 crop
year production report, you will provide your 1999 crop year production.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is August 31 preceding
the cancellation date.
[[Page 257]]
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are December 31.
6. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), the crop insured will be all macadamia nuts in the county
for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown on tree varieties that:
(1) Were commercially available when the trees were set out;
(2) Are adapted to the area; and
(3) Are grown on a rootstock that is adapted to the area.
(c) That are grown in an orchard that, if inspected, is considered
acceptable by us;
(d) That are grown on trees that have reached at least the fifth
growing season after being set out or grafted. However, we may agree in
writing to insure acreage that has not reached this age if it has
produced at least 200 pounds of (wet, in-shell) macadamia nuts per acre
in a previous crop year; and
(e) That are produced from blooms that normally occur during the
calendar year in which insurance attaches and that are normally
harvested prior to the end of the insurance period.
7. Insurable Acreage
In lieu of the provisions in section 9 (Insurable Acreage) of the
Basic Provisions (Sec. 457.8), that prohibit insurance attaching to a
crop planted with another crop, macadamia nuts interplanted with another
perennial crop are insurable unless we inspect the acreage and determine
that it does not meet the requirements contained in your policy.
8. Insurance Period
(a) In accordance with the provisions of section 11 (Insurance
Period) of the Basic Provisions (Sec. 457.8):
(1) Coverage begins on January 1 of each crop year, except that for
the year of application, if your application is received after December
22 but prior to January 1, insurance will attach on the 10th day after
your properly completed application is received in our local office,
unless we inspect the acreage during the 10-day period and determine
that it does not meet insurability requirements. You must provide any
information that we require for the crop or to determine the condition
of the orchard.
(2) The calendar date for the end of the insurance period for each
crop year is the second June 30th after insurance attaches.
(b) In addition to the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage
of macadamia nuts on or before the acreage reporting date for the crop
year, insurance will not be considered to have attached to, and no
premium or indemnity will be due for such acreage for that crop year
unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
9. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the orchard;
(3) Earthquake;
(4) Volcanic eruption;
(5) Wildlife, unless proper measures to control wildlife have not
been taken; or
(6) Failure of irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against damage or loss of production due to:
(1) Disease or insect infestation, unless adverse weather:
(i) Prevents the proper application of control measures or causes
properly applied control measures to be ineffective; or
(ii) Causes disease or insect infestation for which no effective
control mechanism is available;
(2) Inability to market the macadamia nuts for any reason other than
actual physical damage from an insurable cause specified in this
section. For example, we will not pay you an indemnity if you are unable
to market due to quarantine, boycott, or refusal of any person to accept
production.
10. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 (Duties in the Event
of Damage or Loss) of
[[Page 258]]
the Basic Provisions (Sec. 457.8), the following will apply:
(a) You must notify us within 3 days of the date harvest should have
started if the crop will not be harvested.
(b) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing. We will conduct an appraisal
that will be used to determine your production to count for production
that is sold by direct marketing. If damage occurs after this appraisal,
we will conduct an additional appraisal. These appraisals, and any
acceptable records provided by you, will be used to determine your
production to count. Failure to give timely notice that production will
be sold by direct marketing will result in an appraised amount of
production to count of not less than the production guarantee per acre
if such failure results in our inability to make the required appraisal.
(c) If you intend to claim an indemnity on any unit, you must notify
us at least 15 days prior to the beginning of harvest or immediately if
damage is discovered during harvest, so that we may inspect the damaged
production. You must not destroy the damaged crop until after we have
given you written consent to do so. If you fail to meet the requirements
of this section and such failure results in our inability to inspect the
damaged production, we may consider all such production to be undamaged
and include it as production to count.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by
its respective production guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective
price election for each type, if applicable;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted of each type, if
applicable, (see section 11(c)) by the respective price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the results in section 11(b)(5) from the results in
section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
(c) The total production to count (wet, in-shell pounds) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the
requirements contained in section 10;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us of further damage or that
harvest is general in the area unless you harvested the crop, in which
case we will use the harvested production. If you do not continue to
care for the crop, our appraisal made prior to deferring the claim will
be used to determine the production to count; and
(2) All harvested production from the insurable acreage.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 35664, July 2, 1997, as amended at 62 FR 65172, Dec. 10, 1997; 75
FR 15887, Mar. 30, 2010; 75 FR 59057, Sept. 27, 2010]
Sec. 457.132 Cranberry crop insurance provisions.
The cranberry crop insurance provisions for the 1999 and succeeding
crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Cranberry Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
[[Page 259]]
1. Definitions
Barrel. 100 pounds of cranberries.
Harvest. Removal of the cranberries from the bog.
Market price. The cash price per barrel of cranberries offered by
buyers in the area in which you normally market the cranberries.
2. Unit Division
Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Optional units may be
established only if each optional unit is located on non-contiguous
land, unless otherwise allowed by written agreement.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 (Insurance Guarantees,
Coverage Levels, and Prices for Determining Indemnities) of the Basic
Provisions (Sec. 457.8):
(a) You may select only one price election for all the cranberries
in the county insured under this policy.
(b) You must report, by the production reporting date designated in
section 3 (Insurance Guarantees, Coverage Levels, and Prices for
Determining Indemnities) of the Basic Provisions (Sec. 457.8):
(1) Any damage, removal of vines, change in practices, or any other
circumstance that may reduce the expected yield below the yield upon
which the insurance guarantee is based, and the number of affected
acres;
(2) The age of the vines; and
(3) Any other information that we request in order to establish your
approved yield.
We will adjust the yield used to establish your production guarantee
as necessary, based on our estimate of the effect of the removal of
vines, damage, change in practices, and any other circumstance that may
affect the yield potential of the insured crop. If you fail to notify us
of any circumstance that may affect your yields from previous levels, we
will adjust your production guarantee as necessary at any time we become
aware of the circumstance.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is August 31 preceding
the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are November 20.
6. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), the crop insured will be all the cranberries in the county
for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for harvest as cranberries;
(c) That are grown in a bog that, if inspected, is considered
acceptable by us; and
(d) That are grown on vines that have completed four growing seasons
after the vines were set out, unless otherwise provided by the actuarial
table or by written agreement.
7. Insurance Period
(a) In accordance with the provisions of section 11 (Insurance
Period) of the Basic Provisions (Sec. 457.8):
(1) Coverage begins on November 21 of each crop year, except that
for the year of application, if your application is received after
November 11, but prior to November 21, insurance will attach on the 10th
day after your properly completed application is received in our local
office, unless we inspect the acreage during the 10 day period and
determine that it does not meet insurability requirements. You must
provide any information that we require for the crop or to determine the
condition of the bog.
(2) The calendar date for the end of the insurance period for each
crop year is November 20.
(b) In addition to the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage
of cranberries on or before the acreage reporting date for the crop
year, insurance will not be considered to have attached to, and no
premium or indemnity will be due for, such acreage for that crop year
unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
8. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), insurance is provided only
[[Page 260]]
against the following causes of loss that occur during the insurance
period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the bog;
(3) Wildlife;
(4) Earthquake;
(5) Volcanic eruption;
(6) Failure of irrigation water supply, if caused by an insured
peril that occurs during the insurance period; or
(7) Failure or breakdown of irrigation equipment or facilities due
to direct damage to the irrigation equipment or facilities from an
insurable cause of loss if the cranberry crop is damaged by freezing
temperatures within 72 hours of such failure or breakdown and repair or
replacement was not possible before damage occurred.
(b) In addition to the causes of loss excluded in section 12 (Cause
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against damage or loss of production due to:
(1) Disease or insect infestation, unless adverse weather:
(i) Prevents the proper application of control measures or causes
properly applied control measures to be ineffective; or
(ii) Causes disease or insect infestation for which no effective
control mechanism is available; or
(2) Inability to market the cranberries for any reason other than
actual physical damage from an insurable cause of loss specified in this
section. For example, we will not pay you an indemnity if you are unable
to market due to quarantine, boycott, or refusal of any person to accept
production.
9. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 (Duties in the Event
of Damage or Loss) of the Basic Provisions (Sec. 457.8):
(a) If you discover damage, or if you intend to claim an indemnity
on any insured unit, you must give us notice of probable loss:
(1) At least 15 days before the beginning of any harvesting, or
(2) Immediately if probable loss is discovered after harvesting has
begun.
(b) You must not sell or dispose of any damaged production until the
earlier of 15 days from the date of notice of loss or when we give you
written consent to do so.
(c) If you fail to meet the requirements of this section, and such
failure results in our inability to inspect the damaged production, all
such production will be considered undamaged and included as production
to count.
10. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee;
(2) Multiplying the result of section 10(b)(1) by the price
election;
(3) Multiplying the total production to be counted, (see section
10(c)) by the price election;
(4) Subtracting the total in section 10(b)(3) from the total in
section 10(b)(2); and
(5) Multiplying the result in section 10(b)(4) by your share.
(c) The total production to count (in barrels) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) Damaged solely by uninsured causes;
(C) For which you fail to provide acceptable production records; or
(D) Destroyed or put to another use without our consent;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we will use
the appraised amount of production or defer the claim if you agree to
continue to care for the crop. We will then make another appraisal when
you notify us of further damage or that harvest is general to the area
unless you harvested the crop, in which case we will use the harvested
production. If you do not continue to care for the crop, our appraisal
made prior to deferring the claim will be used to determine the
production to count; and
(2) All harvested production from the insurable acreage.
(3) Harvested production which, due to insurable causes, is
determined not to meet the United States Standards for Fresh Cranberries
if available, or would not meet those standards if properly handled, or
does not meet the quality requirements of the receiving handler if the
United States Standards for Fresh Cranberries, if not available, and
[[Page 261]]
such harvested production has a value less than 75 percent of the market
price for cranberries meeting the minimum requirements will be adjusted
by:
(i) Dividing the value per barrel of such cranberries by the market
price per barrel for cranberries meeting the minimum requirements; and
(ii) Multiplying the result by the number of barrels of such
cranberries.
11. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 5905, Feb. 10, 1997, as amended at 62 FR 65172, Dec. 10, 1997]
Sec. 457.133 Prune crop insurance provisions.
The Prune Crop Insurance Provisions for the 2013 and succeeding crop
years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Prune Crop Provisions
1. Definitions
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include: selling through an on-farm or roadside stand,
farmer's market, and permitting the general public to enter the field
for the purpose of picking all or a portion of the crop.
Harvest. Picking of mature prunes from the trees or ground either by
hand or machine.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Natural condition prunes. The condition of prunes in which they are
normally delivered from a dehydrator or dry yard.
Prunes. Any type or variety of plums that is grown in the area for
the production of prunes and that meets the requirements defined in the
applicable Federal Marketing Agreement Dried Prune Order.
Standard prunes. Any natural condition prunes:
(a) That grade ``C'' or better in accordance with the United States
Standards for Grades of Fresh Plums and Prunes; or
(b) That meet or exceed the grade standards in effect for the crop
year if a Federal Marketing Agreement Dried Prune Order has been
established for the area in which the insured crop is grown.
Ton. Two thousand (2,000) pounds avoirdupois.
2. Unit Division
Provisions in the Basic Provisions that allow optional units by
irrigated and non-irrigated practices are not applicable. Instead of
establishing optional units by section, section equivalent, or FSA farm
serial number optional units may be established if each optional unit is
located on non-contiguous land.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one price election for all the prunes in the
county insured under this policy unless the Special Provisions provide
different price elections by type, in which case you may select one
price election for each type designated in the Special Provisions. The
price elections you choose for each type must have the same percentage
relationship to the maximum price offered by us for each type. For
example, if you choose 100 percent of the maximum price election for one
type, you must also choose 100 percent of the maximum price election for
all other types.
(b) You must report, by the production reporting date designated in
section 3 of the Basic Provisions, by type if applicable:
(1) Any damage, removal of trees, change in practices, or any other
circumstance that may reduce the expected yields below the yield upon
which the insurance guarantee is based, and the number of affected
acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and any time the planting pattern of such
acreage is changed:
(i) The age of the interplanted crop, and type, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your approved yield.
(c) We will reduce the yield used to establish your production
guarantee, as necessary, based on our estimate of the effect of any such
situation listed in section 3(b) that may occur. If you fail to notify
us of any situation in section 3(b), we will reduce the yield used to
establish your production guarantee at any time we become aware of the
circumstance. If the situation in section 3(b) occurred:
[[Page 262]]
(1) Before the beginning of the insurance period, the yield used to
establish your production guarantee will be reduced for the current crop
year regardless of whether the situation was due to an insured or
uninsured cause of loss;
(2) After the beginning of the insurance period and you notify us by
the production reporting date, the yield used to establish your
production guarantee will be reduced for the current crop year only if
the potential reduction in the yield used to establish your production
guarantee is due to an uninsured cause of loss; or
(3) After the beginning of the insurance period and you fail to
notify us by the production reporting date, an amount equal to the
reduction in the yield will be added to the production to count
calculated in section 11(c) due to uninsured causes when determining any
indemnity. We may reduce the yield used to establish your production
guarantee for the subsequent crop year to reflect any reduction in the
productive capacity of the trees.
(d) You may not increase your elected or assigned coverage level or
the ratio of your price election to the maximum price election if a
cause of loss that could or would reduce the yield of the insured crop
has occurred prior to the time that you request the increase.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is October 31 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are January 31.
6. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the prunes in the county for which a premium rate is
provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for the production of natural condition prunes;
(c) That are grown on trees that:
(1) Are listed as insurable types in the Special Provisions;
(2) Are grown on rootstock that is adapted to the area;
(3) Are irrigated (except where otherwise provided in the Special
Provisions);
(4) Are grown in an orchard that, if inspected, is considered
acceptable by us; and
(5) Have reached at least the seventh growing season after being set
out.
7. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions that
prohibit insurance attaching to a crop planted with another crop, prunes
interplanted with another perennial crop are insurable unless we inspect
the acreage and determine that it does not meet the insurability
requirements contained in your policy.
8. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) For the year of application, coverage begins on March 1. For
each subsequent crop year the policy remains continuously in force,
coverage begins on the day immediately following the end of the
insurance period for the prior crop year. Policy cancellation that
results solely from transferring to a different insurance provider for a
subsequent crop year will not be considered a break in continuous
coverage.
(2) The calendar date for the end of the insurance period for each
crop year is:
(i) October 1 for California; or
(ii) October 15 for Oregon.
(b) In addition to the provisions of section 11 of the Basic
Provisions:
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage
of prunes on or before the acreage reporting date for the crop year and
if the acreage was insured by you the previous crop year, insurance will
not be considered to have attached to, and no premium or indemnity will
be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(c) If your prune policy is canceled or terminated for any crop
year, in accordance with the terms of the policy, after insurance
attached for that crop year but on or before the cancellation and
termination dates, whichever is later, insurance will not be considered
to have attached for that crop year and no premium, administrative fee,
or indemnity will be due for such crop year.
9. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
[[Page 263]]
(1) Adverse weather conditions;
(2) Fire, unless weeds and undergrowth have not been controlled or
pruning debris has not been removed from the orchard;
(3) Wildlife;
(4) Earthquake;
(5) Volcanic eruption;
(6) Failure of the irrigation water supply, if due to a cause
specified in section 9(a)(1) through (5) that occurs during the
insurance period;
(7) Insects, but not damage due to insufficient or improper
application of pest control measures; or
(8) Plant disease, but not damage due to insufficient or improper
application of disease control measures.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to inability to market the prunes for any reason other
than actual physical damage from an insurable cause specified in this
section. For example, we will not pay you an indemnity if you are unable
to market due to quarantine, boycott, or refusal of any person to accept
production.
10. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 of the Basic
Provisions, you must leave representative samples in accordance with our
procedures.
(b) In addition to the requirements of section 14 of the Basic
Provisions, the following will apply:
(1) You must notify us within 3 days of the date harvest should have
started if the crop will not be harvested.
(2) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing or sold as fresh fruit. We
will conduct an appraisal that will be used to determine your production
to count for production that is sold by direct marketing or is sold as
fresh fruit production. If damage occurs after this appraisal, we will
conduct an additional appraisal. These appraisals, and any acceptable
records provided by you, will be used to determine your production to
count. Failure to give timely notice that production will be sold by
direct marketing or sold as fresh fruit will result in an appraised
amount of production to count of not less than the production guarantee
per acre if such failure results in our inability to make the required
appraisal.
(3) If you intend to claim an indemnity on any unit, you must notify
us at least 15 days prior to the beginning of harvest, or immediately if
damage is discovered during harvest, so that we may inspect the damaged
production.
(4) You must not destroy the damaged crop until after we have given
you written consent to do so. If you fail to meet the requirements of
this section and such failure results in our inability to inspect the
damaged production, all such production will be considered undamaged and
included as production to count.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by
its respective production guarantee;
(2) Multiplying the result of 11(b)(1) by the respective price
election for each type, if applicable;
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to count (see section 11(c)),
of each type, if applicable, by its respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the result of section 11(b)(5) from the result of
section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share.
Example 1: You select 75 percent coverage level, 100 percent of the
price election, and have a 100 percent share in 50.0 acres of type A
prunes in the unit. The production guarantee is 2.5 tons per acre and
your price election is $630.00 per ton. You harvest 10.0 tons. Your
indemnity would be calculated as follows:
(1) 50.0 acres x 2.5 tons = 125.0-ton production guarantee;
(2) 125.0-ton guarantee x $630.00 price election = $78,750 value of
production guarantee;
(4) 10.0 tons x $630.00 price election = $6,300 value of production
to count;
(6) $78,750-$6,300 = $72,450 loss; and
(7) $72,450 x 1.000 share = $72,450 indemnity payment.
Example 2: In addition to the information in the first example, you
have an additional 50.0 acres of type B prunes with 100 percent share in
the same unit. The production guarantee is 2.0 tons per acre and the
price election is $550.00 per ton. You harvest 5.0 tons. Your total
indemnity for both types A and B would be calculated as follows:
(1) 50.0 acres x 2.5 tons = 125.0-ton production guarantee for type
A and 50.0 acres x 2.0 tons = 100.0-ton production guarantee for type B;
(2) 125.0-ton guarantee x $630.00 price election = $78,750 value of
production guarantee for type A and 100.0-ton guarantee x $550.00
[[Page 264]]
price election = $55,000 value production guarantee for type B;
(3) $78,750 + $55,000 = $133,750 total value of production
guarantee;
(4) 10.0 tons x $630.00 price election = $6,300 value of production
to count for type A and 5.0 tons x $550.00 price election = $2,750 value
of production to count for type B;
(5) $6,300 + $2,750 = $9,050 total value of production to count;
(6) $133,750-$9,050 = $124,700 loss; and
(7) $124,700 loss x 1.000 share = $124,700 indemnity payment.
(c) The total production to count (in tons) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing or sold as fresh fruit if you
fail to meet the requirements contained in section 10;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production that meets the definition of standard
prunes; and
(iv) Potential production on insured acreage you intend to abandon
or no longer care for, if you and we agree on the appraised amount of
production. Upon such agreement, the insurance period for that acreage
will end. If you do not agree with our appraisal, we may defer the claim
only if you agree to continue to care for the crop. We will then make
another appraisal when you notify us of further damage or that harvest
is general in the area unless you harvested the crop, in which case we
will use the harvested production. If you do not continue to care for
the crop, our appraisal made prior to deferring the claim will be used
to determine the production to count; and
(2) All harvested production from the insurable acreage that:
(i) Meets the definition of standard prunes;
(ii) Is intended for use as fresh fruit;
(iii) Is sold as standard prunes; or
(iv) Is damaged due to uninsured causes.
(d) Any prune production harvested for fresh fruit will be converted
to a dried prune weight basis by dividing the total amount (in tons) of
fresh fruit production by 3.0.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 58630, Oct. 30, 1997, as amended at 62 FR 65172, Dec. 10, 1997;
65 FR 47839, Aug. 4, 2000; 77 FR 59048, Sept. 26, 2012]
Sec. 457.134 Peanut crop insurance provisions.
The Peanut Crop Insurance Provisions for the 2007 and succeeding
crop years are as follows:
FCIC policies: United States Department of Agriculture, Federal Crop
Insurance Corporation.
Reinsured policies: (Appropriate title for insurance provider).
Both FCIC and reinsured policies.
Peanut Crop Insurance Provisions.
1. Definitions
Base contract price. The price for farmers' stock peanuts stipulated
in the sheller contract, without regard to discounts or incentives that
may apply, not to exceed the price election times the price factor
specified in the Special Provisions.
Farmers' stock peanuts. Picked or threshed peanuts produced in the
United States, which are not shelled, crushed, cleaned, or otherwise
changed (except for removal of foreign material, loose shelled kernels
and excess moisture) from the condition in which peanuts are customarily
marketed by producers.
Green peanuts. Peanuts that are harvested and marketed prior to
maturity without drying or removal of moisture either by natural or
artificial means.
Handler. A person who is a sheller, a buying point, a marketing
association, or has a contract with a sheller or a marketing association
to accept all of the peanuts marketed through the marketing association
for the crop year. The handler acquires peanuts for resale, domestic
consumption, processing, exportation, or crushing through a business
involved in buying and selling peanuts or peanut products.
Harvest. The completion of digging and threshing and removal of
peanuts from the field.
Marketing association. A cooperative approved by the Secretary of
the United States Department of Agriculture to administer payment
programs for peanuts.
Planted acreage. In addition to the requirement in the definition in
the Basic Provisions, peanuts must initially be planted in a row pattern
which permits mechanical cultivation, or that allows the peanuts to be
cared for in a manner recognized by agricultural experts as a good
farming practice. Acreage planted in any other manner will not be
insurable unless otherwise provided by the Special Provisions or by
written agreement.
Price election. In addition to the definition in the Basic
Provisions, the price election for peanuts insured in accordance with a
sheller
[[Page 265]]
contract will be the base contract price specified in the sheller
contract.
Price factor. The factor specified in the Special Provisions that
places limits on the base contract price.
Sheller. Any business enterprise regularly engaged in processing
peanuts for human consumption; that possesses all licenses and permits
for processing peanuts required by the state in which it operates; and
that possesses facilities, or has contractual access to such facilities,
with enough equipment to accept and process contracted peanuts within a
reasonable amount of time after harvest.
Sheller contract. A written agreement between the producer and a
sheller, or the producer and a handler, containing at a minimum:
(a) The producer's commitment to plant and grow peanuts, and to
deliver the peanut production to the sheller or handler;
(b) The sheller's or handler's commitment to purchase all the
production stated in the sheller contract (an option to purchase is not
a commitment); and
(c) A base contract price.
If the agreement fails to contain any of these terms, it will not be
considered a sheller contract.
2. Unit Division
In accordance with the Basic Provisions, basic and optional units
are applicable, unless limited by the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) The price election percentage you choose for peanuts which are
not insured in accordance with a sheller contract (may also include
peanuts in excess of the amount required to fulfill your sheller
contract) and for peanuts insured in accordance with a sheller contract
must have the same percentage relationship to the maximum price election
offered by us for peanuts not insured in accordance with a sheller
contract. For example, if you choose 100 percent of the maximum price
election for peanuts not insured in accordance with a sheller contract,
you must also choose 100 percent of the applicable price election for
peanuts insured in accordance with a sheller contract.
(b) You may not insure more pounds of peanuts than your production
guarantee (per acre) multiplied by the number of acres that will be
planted to peanuts. For the purposes of determining the guarantee,
premiums, indemnities, replant payments, and prevented planting
payments:
(1) Where all production of peanuts is grown under one or more
sheller contracts, you may elect a price election to cover all insurable
peanuts that is the base contract price contained in such sheller
contracts or the price contained in the Special Provisions.
(2) Where some peanuts are grown under one or more sheller contracts
but some peanuts are not grown under a sheller contract, you may elect:
(i) The price election contained in the Special Provisions to cover
all insurable peanuts; or
(ii) The price election using the base contract price for peanuts
grown under a sheller contract and the price contained in the Special
Provisions for peanuts not grown under a sheller contract.
(3) Where none of the peanuts are grown under a sheller contract,
the price election will be the price contained in the Special
Provisions.
(c) Any peanuts excluded from the sheller contract at any time
during the crop year will be insured at the price election specified in
the Special Provisions.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
------------------------------------------------------------------------
State and county Dates
------------------------------------------------------------------------
Jackson, Victoria, Golliad, Bee, Live January 15.
Oak, McMullen, La Salle, and Dimmit
Counties, Texas and all Texas Counties
lying south, thereof.
El Paso, Hudspeth, Culberson, Reeves, February 28.
Loving, Winkler, Ector, Upton, Reagan,
Sterling, Coke, Tom Green, Concho,
McCulloch, San Saba, Mills, Hamilton,
Bosque, Johnson, Tarrant, Wise, Cooke
Counties, Texas, and all Texas counties
south and east thereof; and all other
states, except New Mexico, Oklahoma,
and Virginia.
New Mexico; Oklahoma; Virginia; and all March 15.
other Texas counties.
------------------------------------------------------------------------
6. Report of Acreage
In addition to the requirements of section 6 of the Basic
Provisions, you must provide a copy of all sheller contracts to us on or
before the acreage reporting date if you wish to insure your peanuts in
accordance with your sheller contract.
[[Page 266]]
7. [Reserved]
8. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the peanuts in the county for which a premium rate
is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for the purpose of marketing as farmers' stock
peanuts;
(3) That are a type of peanut designated in the Special Provisions
as being insurable;
(4) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Planted for the purpose of harvesting as green peanuts;
(ii) Interplanted with another crop; or
(iii) Planted into an established grass or legume; and
(5) Whether or not the peanuts are grown in accordance with a
sheller contract (if not grown in accordance with the sheller contract,
the peanuts will be valued at the price election issued by FCIC for the
purposes of determining the production guarantee, premium, and
indemnity).
(b) You will be considered to have a share in the insured crop if,
under the sheller contract, you retain control of the acreage on which
the peanuts are grown, you are at risk of a production loss, and the
sheller contract provides for delivery of the peanuts to the sheller or
handler and for a stipulated base contract price.
(c) A peanut producer who is also a sheller or handler may establish
an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or
officers of the sheller or handler must execute and adopt a resolution
that contains the same terms as a sheller contract. Such resolution will
be considered a sheller contract under this policy; and
(3) Our inspection reveals that the processing facilities comply
with the definition of a sheller contained in these Crop Provisions.
9. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop damaged before the final
planting date, to the extent that the majority of producers in the area
would normally not further care for the crop, must be replanted unless
we agree that replanting is not practical.
(b) We will not insure any acreage:
(1) On which peanuts are grown using no-till or minimum tillage
farming methods unless allowed by the Special Provisions or written
agreement; or
(2) Which does not meet the rotation requirements, if any, contained
in the Special Provisions.
10. Insurance Period
In accordance with the provisions of section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is the
date immediately following planting as follows:
(a) November 30 in all states except New Mexico, Oklahoma, and
Texas; and
(b) December 31 in New Mexico, Oklahoma, and Texas.
11. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if due to a cause of
loss contained in section 11(a) through (g) that occurs during the
insurance period.
12. Replanting Payments
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that
limit the amount of a replant payment to the actual cost of replanting,
the amount of any replanting payment will be determined in accordance
with these Crop Provisions;
(2) Except as specified in section 12(a)(1), you must comply with
all requirements regarding replanting payments contained in section 13
of the Basic Provisions; and
(3) The insured crop must be damaged by an insurable cause of loss
to the extent that the remaining stand will not produce at least 90
percent of the production guarantee for the acreage and it is practical
to replant.
(b) The maximum amount of the replanting payment per acre will be
the lesser of:
(1) 20.0 percent of the production guarantee, multiplied by your
price election, multiplied by your share; or
(2) $80.00 multiplied by your insured share.
(c) If there are different base contract prices or you also have
insurable peanuts not grown under a contract:
(1) If the sheller contracts are for different types of peanuts or
one type of peanut is grown under a sheller contract and another
[[Page 267]]
is not, replanting payments will be valued using the price election
elected by you for the planted acreage, as applicable (For an example,
you have two sheller contracts and the base contract price is $0.23 per
pound for Runner type peanuts, then $0.23 per pound will be used for the
value of any replanted Runner type peanut acreage. If the base contract
price is $0.21 per pound for Spanish type peanuts, then $0.21 per pound
will be used for the value of any replanted Spanish type peanut acreage.
(2) If the sheller contracts are for the same type of peanuts but
they have different base contract prices:
(i) If the peanuts under each sheller contract are insured in
separate optional units, each respective price election from each
sheller contract will apply to each respective unit; or
(ii) If all or some of peanuts under both sheller contracts are
insured in the same unit, then the replanted acreage will be prorated to
each contract based on the number of acres needed to fulfill each
contract (For example, if there are 20 acres in the unit and 10 were
replanted, the production guarantee per acre for the unit is 2,000
pounds per acre, and the contract for $0.23 was for 25,000 pounds and
the contract for $0.21 was for 15,000 pounds, then the acreage under the
$0.23 contract constitutes 62.5 percent of the acreage in the unit
(25,000/40,000) and the other sheller contract 37.5 percent of the
acreage (15,000/40,000). Of the 10 acres replanted, 6.25 acres (10 x
.625) would be paid at the $0.23 price election and 3.75 acres (10 x
.375) would be paid at the $0.21 price election).
(3) If the peanuts are not grown under a contract, the replanting
payments will be valued using the price election as specified in the
Special Provisions. If the unit has peanuts grown under a sheller
contract and peanuts not grown under a sheller contract, the replanted
acreage must be prorated between the contract and non-contract acreage
by determining the acreage grown under a contract and the remaining
acreage in the unit (For example, if there are 20 acres in the unit and
10 were replanted, the production guarantee per acre for the unit is
2,000 pounds per acre, there is a sheller contract for $0.23 for 25,000
pounds, the remaining peanuts are not grown under a sheller contract,
and the price election in the Special Provisions is for $0.20. The
peanuts under the sheller contract constitute 62.5 percent (25,000/
40,000) of the acreage in the unit and remaining peanuts constitute 37.5
percent (40,000-25,000/40,000) of the acreage. Of the 10 acres
replanted, 6.25 acres (10 x .625) would be paid with the liability based
on the $0.23 price election and 3.75 acres (10 x .375) would be paid
with the liability based on the $0.20 price election).
(d) When the crop is replanted using a practice that is uninsurable
for an original planting, the liability on the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
(e) Replanting payments will be calculated using your price election
and production guarantee for the crop type that is replanted and
insured. A revised acreage report will be required to reflect the
replanted type, if applicable.
13. Duties in the Event of Damage or Loss
Representative samples are required in accordance with section 14 of
the Basic Provisions.
14. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production that are acceptable to us
for any:
(1) Optional unit, we will combine all optional units for which
acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such
units in proportion to our liability for the harvested acreage for the
unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the number of insured acres by the respective
production guarantee (per acre) for peanuts insured under a sheller
contract or not insured under a sheller contract, as applicable;
(2) Multiplying each result of section 14(b)(1) by the applicable
price election for peanuts insured at the base contract price or the
price election specified in the Special Provisions, as applicable;
(3) Totaling the results of section 14(b)(2);
(4) Multiplying the production to count by the respective price
election (If you have one or more sheller contracts, we will value your
production to count by using your highest price election first and will
continue in decreasing order to your lowest price election based on the
amount of peanuts insured at each price election);
(5) Totaling the results of section 14(b)(4);
(6) Subtracting the result of section 14(b)(5) from the result of
section 14(b)(3); and
(7) Multiplying the result in section 14(b)(6) by your share.
Example 1 (without a sheller contract):
You have 100 percent share in 25 acres of Valencia peanuts in the
unit, with a production guarantee (per acre) of 2,000 pounds, the price
election specified in the Special Provisions is $0.17 per pound, and
your production to count is 43,000 pounds.
(1) 25 acres x 2,000 pounds = 50,000 pound guarantee;
(2) 50,000 pound guarantee x $0.17 price election specified in the
Special Provisions = $8,500.00 guarantee;
[[Page 268]]
(3) 43,000 pounds of production to count x $0.17 price election
specified in the Special Provisions = $7,310.00;
(4) $8,500.00 guarantee-$7,310.00 = $1,190.00; and
(5) $1,190.00 x 1.000 = $1,190.00; Indemnity = $1,190.00.
Example 2 (with a sheller contract):
You have 100 percent share in 25 acres of Valencia peanuts in the
unit, with a production guarantee (per acre) of 2,000 pounds. You have
two sheller contracts, the first is for 25,000 pounds, price election
(contract) is $0.23 per pound, and the second is for 10,000 pounds,
price election (contract) is $0.21 per pound. The price election (non-
contract) specified in the Special Provisions is $0.17 per pound, and
your production to count is 43,000 pounds.
(1) 25 acres x 2,000 pounds = 50,000 pound guarantee;
(2) 25,000 pounds contracted x $0.23 price election (contract) =
$5,750.00;
10,000 pounds contracted x $0.21 price election (contract) =
$2,100.00;
50,000 pound guarantee-25,000 pounds contracted-10,000 pounds
contracted = 15,000 pounds not contracted;
15,000 pounds not contracted x $0.17 price election (non-contract)
specified in the Special Provisions = $2,550.00;
(3) $5,750.00 + $2,100.00 + $2,550.00 = $10,400.00 guarantee;
(4) 43,000 pounds of production to count:
25,000 pounds contracted x $0.23 price election (contract) =
$5,750.00;
10,000 pounds contracted x $0.21 price election (contract) =
$2,100.00;
43,000 pounds of production to count-25,000 pounds contracted (at
$0.23 per pound)-10,000 pounds contracted (at $0.21 per pound) = 8,000
pounds;
8,000 pounds x $0.17 price election (non-contract) specified in the
Special Provisions = $1,360.00;
(5) $5,750.00 + $2,100.00 + $1,360.00 = $9,210.00;
(6) $10,400.00 guarantee-$9,210.00 = $1,190.00; and
(7) $1,190.00 x 1.000 = $1,190.00;
Indemnity = $1,190.00.
(c) The total production to count (in pounds) from all insurable
acreage on the unit will include all appraised and harvested production.
(d) All appraised production will include:
(1) Not less than the production guarantee for acreage:
(i) That is abandoned;
(ii) Put to another use without our consent;
(iii) Damaged solely by uninsured causes; or
(iv) For which you fail to provide production records that are
acceptable to us.
(2) Production lost due to uninsured causes;
(3) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies and excess moisture in accordance with
section 14(e));
(4) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for the acreage
will end when you put the acreage to another use or abandon the crop. If
agreement on the appraised amount of production is not reached:
(i) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(ii) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(5) All harvested production from the insurable acreage.
(e) Mature peanuts may be adjusted for quality when production has
been damaged by an insured cause of loss.
(1) To enable us to determine the number of pounds, price per pound,
and the quality of production for any peanuts that qualify for quality
adjustment, we must be given the opportunity to have such peanuts
inspected and graded before you dispose of them.
(2) If you dispose of any production without giving us the
opportunity to have the peanuts inspected and graded, the gross weight
of such production will be used in determining total production to count
unless you submit a marketing record satisfactory to us which clearly
shows the number of pounds, price per pound, and quality of such
peanuts.
(3) Such production to count will be reduced if the price per pound
received for damaged peanuts is less than 85 percent of the price
election by:
(i) Dividing the price per pound for the damaged peanuts, as
determined by us in accordance with section 14(e)(1), received for the
insured type of peanuts by the applicable price election; and
(ii) Multiplying this result by the number of pounds of such
production.
[[Page 269]]
15. Prevented Planting
(a) Your prevented planting coverage will be 50 percent of your
production guarantee for timely planted acreage. If you have additional
levels of coverage, as specified in 7 CFR part 400, subpart T, and pay
an additional premium, you may increase your prevented planting coverage
to a level specified in the actuarial documents.
(b) In addition to the provisions of section 17(i) of the Basic
Provisions, if there are different base contract prices or you also have
insurable peanuts not grown under a contract:
(1) If the sheller contracts are for different types of peanuts or
one type of peanut is grown under a sheller contract and another is not,
the liability will be determined using the price election elected by you
for planted acreage, as applicable (For an example, you have two sheller
contracts and the base contract price is $0.23 per pound for Runner type
peanuts, then $0.23 per pound will be used for the value of any
prevented planting Runner type peanut acreage. If the base contract
price is $0.21 per pound for Spanish type peanuts, then $0.21 per pound
will be used for the value of any prevented planting Spanish type peanut
acreage.
(2) If the sheller contracts are for the same type of peanuts but
they have different base contract prices:
(i) If the peanuts grown under each sheller contract are insured in
separate optional units, the liability will be determined using each
respective price election for the prevented planting acreage in each
respective unit; or
(ii) If all or some of the peanuts grown under the sheller contracts
are insured in the same unit, then the liability for each contract must
be determined separately using the respective price election and the
number of eligible prevented planting acres to which the liability
applies and will be determined by prorating prevented planting acreage
to each contract based on the number of acres needed to fulfill each
contract (For example, if there are 20 acres in the unit and 10 were
prevented from planting, the production guarantee per acre for the unit
is 2,000 pounds per acre, and the contract for $0.23 was for 25,000
pounds and the contract for $0.21 was for 15,000 pounds, then the
acreage under the $0.23 contract constitutes 62.5 percent (25,000/
40,000) of the acreage in the unit and the other contract 37.5 percent
(15,000/40,000) of the acreage. Of the 10 acres prevented from planting,
6.25 acres (10 x .625) would be paid with the liability based on the
$0.23 price election and 3.75 acres (10 x .375) would be paid with the
liability based on the $0.21 price election).
(3) If the peanuts are not grown under a contract, the liability for
such peanuts will be based on the price election as specified in the
Special Provisions. If the unit has peanuts grown under a sheller
contract and peanuts not grown under a sheller contract, the eligible
prevented planting acreage must be determined by determining the acreage
grown under a contract and the remaining acreage in the unit (For
example, if there are 20 acres in the unit and 10 were prevented from
planting, the production guarantee per acre for the unit is 2,000 pounds
per acre, there is a sheller contract for $0.23 for 25,000 pounds, the
remaining peanuts are not grown under a sheller contract, and the price
election in the Special Provisions is for $0.20. The peanuts under the
sheller contract constitute 62.5 percent (25,000/40,000) of the acreage
in the unit and remaining peanuts constitute 37.5 percent (40,000-
25,000/40,000) of the acreage. Of the 10 acres prevented from planting,
6.25 acres (10 x .625) would be paid with the liability based on the
$0.23 price election and 3.75 acres (10 x .375) would be paid with the
liability based on the $0.20 price election).
[71 FR 55997, Sept. 26, 2006]
Sec. 457.135 Onion crop insurance provisions.
The onion crop insurance provisions for the 2013 and succeeding crop
years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Onion Crop Provisions
1. Definitions
Damaged onion production. Storage type onions that do not grade U.S.
No. 1 or do not satisfy any other standards that may be contained in the
Special Provisions; or non-storage type onions which do not satisfy
standards contained in any applicable marketing order or other standards
that may be contained in the Special Provisions.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the field for the
purpose of harvesting all or a portion of the crop.
Direct seeded. Onions planted by placing onion seed by machine or by
hand at the correct depth, into a seedbed that has been
[[Page 270]]
properly prepared for the planting method and production practice.
Harvest. Removal of the onions from the field after topping and
lifting or digging.
Hundredweight. 100 pounds avoirdupois.
Lifting or digging. A pre-harvest process in which the onion roots
are severed from the soil and the onion bulbs laid on the surface of the
soil for drying in the field.
Non-storage onions. Onions of a Bermuda, Granex, or Grano variety,
or hybrids developed from these varieties, that are harvested as a bulb
and dried only a short time, and consequently have a higher moisture
content. They are thinner skinned, contain a higher sugar content, and
are milder in flavor than storage onions. Due to a higher moisture and
sugar content, they are subject to deterioration both on the surface and
internally if not used shortly after harvest.
Onion production. Onions of recoverable size and condition, with
excess dirt and foliage material removed and that are not considered
damaged onion production.
Planted acreage. In addition to the definition contained in the
Basic Provisions, onions, including sets, must be direct seeded in rows
or transplanted in rows.
Processor. Any business enterprise regularly engaged in buying and
processing onions, that possesses all licenses and permits for
processing onions required by the State in which it operates, and that
possesses facilities, or has contractual access to such facilities, with
enough equipment to accept and process contracted onions within a
reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a
processor, containing at a minimum:
(a) The producer's commitment to plant and grow onions of the types
designated in the Special Provisions and to deliver the onion production
to the processor;
(b) The processor's commitment to purchase all the production from a
specified number of acres or the specified quantity of onion production
stated in the processor contract; and
(c) The price that will be paid for the production.
Production guarantee (per acre).
(a) First stage production guarantee--Forty-five percent (45%) of
the final stage production guarantee for direct seeded and transplanted
storage and non-storage onions, unless otherwise specified in the
Special Provisions.
(b) Second stage production guarantee--Seventy percent (70%) of the
final stage production guarantee for direct seeded storage onions and 60
percent (60%) of the final stage production guarantee for transplanted
storage onions and all non-storage onions, unless otherwise specified in
the Special Provisions.
(c) Final stage production guarantee--The quantity of onions (in
hundredweight) determined by multiplying the approved yield per acre by
the coverage level percentage you elect.
Sets. Onion bulbs that are planted by hand or by machine.
Storage onions. Onions, other than a Bermuda, Granex, or Grano
variety, or hybrids developed from these varieties, that are harvested
as a bulb and dried to a lower moisture content, are firmer, have more
outer layers of paper-like skin, and are darker in color than non-
storage onions. They are more pungent, have a lower sugar content, and
can be stored for several months under proper conditions prior to use
without deterioration.
Topping. A pre-harvest process to initiate curing, in which onion
foliage is removed or broken.
Transplanted. Onions planted by placing of the onion plant or sets,
by machine or by hand at the correct depth, into a seedbed that has been
properly prepared for the planting method and production practice.
2. Unit Division.
In addition to the requirements of section 34 of the Basic
Provisions, optional units may be established by type, if separate types
are designated in the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3 of the Basic
Provisions (Sec. 457.8), you may select only one price election for all
the onions in the county insured under this policy unless the Special
Provisions provide different price elections by type, in which case you
may select one price election for each onion type designated in the
Special Provisions. The price elections you choose for each type must
have the same percentage relationship to the maximum price offered by us
for each type. For example, if you choose 100 percent of the maximum
price election for one type, you must also choose 100 percent of the
maximum price election for all other types.
(b) Your production guarantee progresses, in stages, to the final
stage production guarantee. Stages will be determined on an acre basis.
At least 75 percent (75%) of the plants on such acreage must be at the
same stage to qualify for the first and second stages. The stages are as
follows:
(1) First stage extends:
(i) For direct seeded storage and non-storage onions, from planting
until the emergence of the fourth leaf; and
(ii) For transplanted storage and non-storage onions, from
transplanting of onion plants or sets through the 30th day after
transplanting.
(2) Second stage extends:
[[Page 271]]
(i) For direct seeded storage and non-storage onions, from the
emergence of the fourth leaf until eligible for the final stage; and
(ii) For transplanted storage and non-storage onions, from the 31st
day after transplanting of onion plants or sets until eligible for the
final stage.
(3) Final stage extends from the completion of topping and lifting
or digging on the acreage until the end of the insurance period.
(c) Any acreage of onions damaged in the first or second stage, to
the extent that the majority of producers in the area would not normally
further care for the onions, will have a production guarantee for
indemnity purposes, based on the stage in which the damage occurred,
even if you continue to care for the damaged onions.
4. Contract Changes.
In accordance with section 4 of the Basic Provisions, the contract
change date is:
(a) June 30 preceding the cancellation date for counties with an
August 31, September 30, or November 30 cancellation date;
(b) November 30 preceding the cancellation date for counties with a
February 1 cancellation date; or
(c) As designated in the Special Provisions.
5. Cancellation and Termination Dates.
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are as follows, unless otherwise
designated in the Special Provisions:
----------------------------------------------------------------------------------------------------------------
State & County Cancellation date Termination date
----------------------------------------------------------------------------------------------------------------
Arizona; Georgia; Kinney, Uvalde, August 31............................. August 31.
Medina, Bexar, Wilson, Karnes,
Bee, and San Patricio Counties,
Texas, and all Texas Counties
lying south thereof.
Umatilla County, Oregon; and August 31............................. September 30.
Walla Walla County, Washington.
All California Counties, except September 30.......................... September 30.
Lassen, Modoc, Shasta and
Siskiyou.
Hawaii........................... September 30.......................... November 30.
All other states and counties.... February 1............................ February 1.
----------------------------------------------------------------------------------------------------------------
6. Report of Acreage.
In addition to the provisions of section 6 of the Basic Provisions,
if the Special Provisions require a processor contract to insure your
onions, you must provide a copy of all your processor contracts to us on
or before the acreage reporting date.
7. Annual Premium
In lieu of the provisions of section 7(c) of the Basic Provisions
(Sec. 457.8), the annual premium amount is computed by multiplying the
final stage production guarantee by the price election, the premium
rate, the insured acreage, your share at the time of planting, and any
applicable premium adjustment factors contained in the actuarial
documents.
8. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the storage and non-storage onions (excluding green
(bunch) or seed onions, chives, garlic, leeks, shallots, and scallions)
in the county for which a premium rate is provided by the actuarial
documents:
(a) In which you have a share;
(b) That are planted for harvest as either storage onions or non-
storage onions;
(c) That are not (unless allowed by the Special Provisions or by
written agreement):
(1) Interplanted with another crop, unless the onions are
interplanted with a windbreak crop and the windbreak crop is destroyed
within 70 days after completion of seeding or transplanting; or
(2) Planted into an established grass or legume.
9. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions
(Sec. 457.8), we will not insure any acreage of the insured crop that:
(a) Was planted the previous year to storage or non-storage onions,
green (bunch) onions, seed onions, chives, garlic, leeks, shallots, or
scallions unless different rotation requirements are designated in the
Special Provisions or we agree in writing to insure such acreage; or
(b) Is damaged before the final planting date to the extent that the
majority of producers in the area would normally not further care for
the crop and is not replanted, unless we agree that it is not practical
to replant.
10. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions (Sec. 457.8), the acreage must be planted on or before the
final planting date designated in the Special Provisions except as
allowed in section 16 of the Basic Provisions.
(b) In accordance with the provisions of section 11 of the Basic
Provisions, unless
[[Page 272]]
otherwise designated in the Special Provisions, the insurance period
ends at the earliest of:
(1) The calendar date for the end of the insurance period as
follows:
(i) May 20 for 1015 Super Sweets, and any other non-storage onions
in Cameron, Hidalgo, Starr, and Willacy Counties, Texas;
(ii) June 1 for Vidalia, and any other non-storage onions planted in
the state of Georgia;
(iii) June 30 for all storage and non-storage onions in Arizona;
(iv) July 15 for 1015 Super Sweets, and any other non-storage onions
for all Texas counties except Cameron, Hidalgo, Starr, and Willacy;
(v) July 31 for fall planted non-storage onions in Oregon and
Washington;
(vi) August 31 for all non-storage onions not otherwise specified;
and
(vii) October 15 for all storage onions not otherwise specified; or
(2) In addition to the requirements of section 11(b) of the Basic
Provisions, fourteen days after lifting or digging.
11. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions (Sec. 457.8), insurance is provided only against the
following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife, unless control measures have not been taken;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
(b) In addition to the causes of loss not insured against as listed
in section 12 of the Basic Provisions (Sec. 457.8), we will not insure
against any loss of production due to damage that occurs or becomes
evident after the end of the insurance period, including, but not
limited to, loss of production that occurs after onions have been placed
in storage.
12. Replanting Payment
(a) In accordance with section 13 of the Basic Provisions
(Sec. 457.8), a replanting payment is allowed if the crop is damaged by
an insurable cause of loss to the extent that the remaining stand will
not produce at least 90 percent of the final stage production guarantee
for the acreage and we determine that it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be
your actual cost for replanting, but will not exceed the lesser of:
(1) 7 percent of the final stage production guarantee multiplied by
your price election for the type originally planted and by your insured
share; or
(2) 18 hundredweight multiplied by your price election for the type
originally planted and by your insured share.
(c) When onions are replanted using a practice that is uninsurable
as an original planting, the liability for the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
13. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 of the Basic
Provisions, any representative samples of the crop that may be required
must be at least 10 feet wide and extend the entire length of each field
in the unit. The samples must not be topped, lifted, dug, harvested or
destroyed until the earlier of our inspection or 15 days after harvest
of the balance of the unit is completed.
(b) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing. We will conduct an appraisal
that will be used to determine your production to count for production
that is sold by direct marketing. If damage occurs after this appraisal,
we will conduct an additional appraisal. These appraisals, and any
acceptable records provided by you, will be used to determine your
production to count. Failure to give timely notice that production will
be sold by direct marketing will result in an appraised amount of
production to count that is not less than the production guarantee per
acre if such failure results in our inability to make the required
appraisal.
14. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide production records:
(1) For any optional units, we will combine all optional units for
which acceptable production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee;
(2) Multiplying each result of section 14(b)(1) by the respective
price election;
(3) Totaling the results in section 14(b)(2);
(4) Multiplying the total production to be counted (see section
14(c)) by the respective price elections you chose;
(5) Totaling the results of section 14(b)(4);
[[Page 273]]
(6) Subtracting the result in section 14(b)(5) from the result in
14(b)(3); and
(7) Multiplying the result in section 14(b)(6) by your share.
For Example:
You have a 100 percent share in 100 acres of a unit of transplanted
storage onions with a production guarantee of 200 hundredweight per
acre, and you select 100 percent of the price election of $8.00 per
hundredweight. Your crop suffers a covered cause of loss on 25 acres
during the second stage which has a second stage production guarantee of
60 percent of the final stage production guarantee which equals 120
hundredweight per acre. The appraised production on the 25 acres was
2,500 hundredweight of onion production. Your harvested onion production
on the remaining 75 acres is 16,000 hundredweight of harvested
production to count. Your indemnity will be calculated as follows:
(1) 25 acres x 120 hundredweight (200 x .60) second stage production
guarantee = 3,000 hundredweight, and 75 acres x 200 hundredweight final
stage production guarantee = 15,000 hundredweight;
(2) 3,000 hundredweight second stage production guarantee x $8.00
price election = $24,000 value of second stage production guarantee, and
15,000 hundredweight final stage production guarantee x $8.00 price
election = $120,000 value of final stage production guarantee;
(3) $24,000 value of second stage production guarantee + $120,000
value of final stage production guarantee = $144,000 total value of
production guarantee;
(4) 500 hundredweight second stage production to count (from step 4
of the section 14(c)(1)(iv) example) x $8.00 price election = $4,000
value of second stage production to count, and 16,000 hundredweight
final stage production to count x 8.00 price election = $128,000 value
of final stage production to count;
(5) $4,000 value of second stage production to count + $128,000
value of final stage production to count = $132,000 total value of
production to count;
(6) $144,000 total value of production guarantee -$132,000 total
value of production to count = $12,000 value of loss; and
(7) $12,000 x 100 percent share = $12,000 indemnity payment.
(c) The total production (in hundredweight) to count from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is direct marketed to consumers if you fail to meet the
requirements contained in section 13;
(C) Put to another use without our consent;
(D) That is damaged solely by uninsured causes; or
(E) For which you fail to provide production records that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested onion production (mature unharvested production
may be adjusted based on the percent of damaged onion production in
accordance with section 14(d));
(iv) For acreage that does not qualify for the final stage
production guarantee, and is not subject to section 14 (c)(1)(i) and
(ii), the appraised production is reduced by the difference between the
first or second stage (as applicable) and the final stage production
guarantee; and
For Example:
You have 100 acres of a unit of transplanted storage onions with a
production guarantee of 200 hundredweight per acre. Your crop suffers a
covered cause of loss on 25 acres during the second stage which has a
second stage production guarantee of 60 percent of the final stage
production guarantee. The appraised production on the 25 acres was 2,500
hundredweight of onion production. Your second stage production to count
on the 25 acres will be calculated as follows:
(1) 25 acres x 200 hundredweight final stage production guarantee =
5,000 hundredweight final stage production guarantee,
(2) 5,000 hundredweight final stage production guarantee x 60
percent second stage production guarantee = 3,000 hundredweight second
stage production guarantee,
(3) 5,000 hundredweight final stage production guarantee -3,000
hundredweight second stage production guarantee = 2,000 hundredweight
difference between second stage and final stage production guarantee,
and
(4) 2,500 hundredweight appraised -2,000 hundredweight difference =
500 hundredweight second stage production to count (for step 4 of the
section 14(b) example).
(v) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end if you put the acreage to another use or abandon the
crop.
(vi) If agreement on the appraised amount of production is not
reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us. (The amount of production to count
for such acreage will be based on the harvested onion production or
appraisals from the samples at the time harvest should have occurred. If
you do not leave the required samples intact, or fail to provide
sufficient care for the samples, our appraisal made prior to giving you
consent
[[Page 274]]
to put the acreage to another use will be used to determine the amount
of production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested onion
production, or our reappraisal if additional damage occurs and the crop
is not harvested.
(2) All harvested onion production from the insurable acreage.
(d) If the damage to harvested or unharvested onion production
exceeds the percentage shown in the Special Provisions for the type, no
production will be counted for that unit or portion of a unit unless
such damaged onion production from that acreage is sold. If sold, the
hundredweight of production to be counted will be adjusted by dividing
the price received for the damaged onion production by the price
election and multiplying the resulting factor times the hundredweight
sold.
(e) The extent of any damaged onion production must be determined
not later than the time onions are placed in storage if the production
is stored prior to sale, or the date the onions are delivered to a
packer, processor, or other handler if production is not stored.
15. Prevented Planting
Your prevented planting coverage will be 35 percent (35%) of your
final stage production guarantee for timely planted acreage. Additional
prevented planting coverage levels are not available for onions.
[62 FR 28613, May 27, 1997, as amended at 62 FR 65173, Dec. 10, 1997; 64
FR 33385, June 23, 1999; 75 FR 15887, Mar. 30, 2010; 77 FR 13965, Mar.
8, 2012]
Sec. 457.136 Tobacco crop insurance provisions.
The Tobacco Crop Insurance Provisions for the 2010 and succeeding
crop years are as follows:
FCIC policies:
UNITED STATES DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Reinsured policies:
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Tobacco Crop Insurance Provisions
1. Definitions.
Average value. For appraised production, the value of such
production divided by the appraised pounds for the tobacco types. For
harvested production, the value of such production divided by the
harvested pounds for the tobacco type.
Basic unit. In lieu of the definition in the Basic Provisions, a
basic unit is all insurable acreage of an insurable type of tobacco in
the county in which you have a share on the date of planting for the
crop year and that is indentified by a single FSA farm serial number at
the time insurance first attaches under these provisions for the crop
year.
Harvest. Cutting or priming and removing all insured tobacco from
the unit.
Hydroponic plants. Seedlings grown in liquid nutrient solutions.
Late planting period. In lieu of the definition in section 1 of the
Basic Provisions, the period that begins the day after the final
planting date for the insured crop and ends 15 days after the final
planting date, unless otherwise specified in the Special Provisions.
Planted acreage. In addition to the definition contained in the
Basic provisions, land in which tobacco seedlings, including hydroponic
plants, have been transplanted by hand or machine from the tobacco bed
to the field.
Pound. Sixteen ounces avoirdupois.
Priming. A method of harvesting tobacco by which one or more leaves
are removed from the stalk as they mature.
Tobacco bed. An area protected from adverse weather in which tobacco
seeds are sown and seedlings are grown until transplanted into the
tobacco field by hand or machine.
Tobacco types. Insurable tobacco as shown on the Special Provisions
of Insurance.
2. Unit Division.
A basic unit will be determined in accordance with the definition of
basic unit contained in section 1 of these Crop Provisions. Optional and
enterprise units may be allowed by the Special Provisions of Insurance.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities.
In addition to the requirements of section 3 of the Basic
Provisions, you must select only one price election percentage and
coverage level for each tobacco type designated in the Special
Provisions of Insurance that you elect to insure.
4. Contract Changes.
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates.
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
6. Report of Acreage.
In addition to the requirements of section 6 of the Basic
Provisions, you must provide a copy of any written lease agreement, if
applicable, between you and any landlord or tenant. The written lease
agreement must:
[[Page 275]]
(1) Identify all other persons sharing in the crop; and
(2) Be submitted to us on or before the acreage reporting date.
7. Insured Crop.
(a) In accordance with section 8 of the Basic Provisions, the
insured crop will be each tobacco type you elect to insure and for which
a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That meets all rotation requirements on the Special Provisions
of Insurance.
(b) You will be considered to have a share in the insured crop if
you retain control of the acreage on which the tobacco is grown and you
are at risk of loss.
8. Insurable Acreage.
In addition to the provisions of section 9 of the Basic Provisions,
we will not insure any acreage that is:
(a) Planted in any manner other than as provided in the definition
of ``planted acreage'' in section 1 of these Crop Provisions, unless
otherwise provided by the Special Provisions of Insurance or by written
agreement; or
(b) Damaged before the final planting date to the extent that the
majority of producers in the area would normally not further care for
the tobacco crop, unless such crop is replanted or we agree that
replanting is not practical.
9. Insurance Period.
In lieu of the provisions of section 11 of the Basic Provisions,
coverage ends at the earlier of:
(a) Total destruction of the tobacco on the unit;
(b) Removal of the tobacco from the unit where grown, except for
curing, grading, and packing;
(c) Abandonment of the crop on the unit;
(d) Final adjustment of the loss on the unit; or
(e) The calendar date for the end of the insurance period, which is
the date immediately following planting and designated by tobacco types
and states (or as otherwise stated on the Special Provisions of
Insurance) as follows:
(i) Flue cured--November 30 in North Carolina and Virginia;
(ii) Flue cured--October 31 in Alabama, Florida, Georgia, and South
Carolina;
(iii) Burley--February 28 in all states;
(iv) Dark air cured--March 15 in Kentucky, Tennessee, and Virginia;
(v) Fire cured--April 15 in Kentucky, Tennessee, and Virginia;
(vi) Cigar Binder, Cigar Filler, and Cigar Wrapper--April 30 in
Connecticut, Massachusetts, Pennsylvania, and Wisconsin; and
(vii) Maryland type--May 15 in Maryland and Pennsylvania.
10. Causes of Loss.
In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply due to a cause of loss
specified in sections 10(a) through (g) that also occurs during the
insurance period.
11. Duties In The Event of Damage or Loss.
(a) In accordance with section 14 of the Basic Provisions, you must
maintain representative samples of each unharvested tobacco crop (type)
for our inspection. The representative samples must be at least 5 feet
wide (at least two rows), and extend the entire length of each field in
the unit. The samples must not be harvested or destroyed until after our
inspection.
(b) If you have filed a notice of damage, you must leave all tobacco
stalks and stubble in the unit intact for our inspection. The stalks and
stubble must not be destroyed until we give you written consent to do so
or until 30 days after the end of the insurance period, whichever is
earlier.
12. Settlement of Claim.
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the number of insured acres by your applicable
production guarantee (per acre);
(2) Multiplying the result of section 12(b)(1) by your price
election;
(3) Multiplying the total production to count determined in section
12(c) by your price election;
(4) Subtracting the result of section 12(b)(3) from the result of
section 12(b)(2); and
[[Page 276]]
(5) Multiplying the result of section 12(b)(4) by your share.
For example:
You have 100 percent share in a unit to produce 3,000 pounds of
Burley tobacco, a production guarantee of 1,950 pounds (APH yield of
3,000 pounds x .65 coverage level), you plant 1.0 acre, your price
election is $1.50 per pound, and your production to count is 500 pounds.
Your indemnity would be calculated as follows:
(1) 1.0 acre x 1,950 pounds production guarantee = 1,950 pounds;
(2) 1,950 pounds x $1.50 price election = $2,925.00 value of the
production guarantee;
(3) 500 pounds production to count x $1.50 price election = $750.00
value of the production to count;
(4) $2,925.00 value of the production guarantee--$750.00 value of
the production to count = $2,175.00; and
(5) $2,175.00 x 1.000 share = $2,175.00 indemnity.
(c) The total production to count (in pounds) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes;
(D) For which you fail to provide records of production, that are
acceptable to us; or
(E) For any type of tobacco when the stalks and stubble have been
destroyed without our consent under section 11(b);
(ii) Production lost due to uninsured causes.
(iii) Potential production on insured acreage you intend to put to
another use or abandon, if you and we agree on the appraised amount of
production. Upon such agreement, the insurance period for that acreage
will end when you put the acreage to another use or abandon the crop. If
agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count.); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from insurable acreage.
(d) Once we agree the current year's tobacco has no average value
due to an insured cause of loss, you must destroy it, and it will not be
considered production to count. If you refuse to destroy such tobacco,
we will include it as production to count and value it at the applicable
price election.
(e) In lieu of section 15(b) of the Basic Provisions, if we have
conducted an appraisal of your insured crop and we determine that the
harvested production you report is inconsistent with the appraised
production and you cannot prove that an insurable cause of loss occurred
between the appraisal and the end of the insurance period that can
account for the reduction in production, your claim will be settled
based on the appraised production on insured acreage, even if you have
harvested the acreage. If we settle your claim based on your appraised
production, section 12(f) regarding quality adjustment is not
applicable.
(f) Mature tobacco may be adjusted for quality deficiencies when
production has been damaged by insurable causes.
(1) You must contact us before any tobacco is disposed of so we can
inspect the tobacco to determine the extent of the damage.
(2) Our inspection will be used to determine whether the average
value is reasonable. Based on amount of damage determined during the
inspection, if the average value is:
(i) Reasonable, such average value will be used to determine the
quality adjustment in section 12(f)(5);
(ii) Unreasonable, we may adjust the average value used to calculate
the quality adjustment in section 12(f)(5).
(3) If you dispose of any production without giving us the
opportunity to have the tobacco inspected, you will not receive a
quality adjustment for such tobacco, regardless of the average value of
the production.
(4) Production to count will only be reduced if the average value
for damaged tobacco is less than 75 percent of your tobacco price
election. You must provide us with records that are acceptable to us
which clearly shows the number of pounds, price per pound, and the
quality of such tobacco.
(5) Any reduction in the production to count will be determined by:
(i) Dividing the average value per pound as determined by us in
accordance with section 12(f)(2) of these Crop Provisions by your
applicable price election; and
(ii) Multiplying this result by the number of pounds of damaged
production.
13. Late Planting
In lieu of late planting provisions in the Basic Provisions
regarding acreage initially
[[Page 277]]
planted after the final planting date, insurance will be provided for
acreage planted to the insured crop after the final planting date as
follows:
(a) The production guarantee (per acre) for acreage planted during
the late planting period will be reduced by:
(1) One percent per day for the 1st through the 10th day; and
(2) Two percent per day for the 11th through the 15th day;
(b) The premium amount for insurable acreage planted to the insured
crop after the final planting date will be the same as that for timely
planted acreage. If the amount of premium you are required to pay (gross
premium less our subsidy) for acreage planted after the final planting
date exceeds the liability on such acreage, coverage for those acres
will not be provided (no premium will be due and no indemnity will be
paid for such acreage).
14. Prevented Planting
Your prevented planting coverage will be 35 percent of your
production guarantee for timely planted acreage. Additional prevented
planting coverage levels are not available for tobacco.
[74 FR 13059, Mar. 26, 2009]
Sec. 457.137 Green pea crop insurance provisions.
The Green Pea Crop Insurance Provisions for the 1998 and succeeding
crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies
Green Pea Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Base contract price. The price stipulated in the processor contract
for the tenderometer reading, grade factor, or sieve size that is
designated in the Special Provisions, if applicable, without regard to
discounts or incentives that may apply.
Bypassed acreage. Land on which production is ready for harvest but
the processor elects not to accept such production so it is not
harvested.
Combining (vining). Separating pods from the vines and, in the case
of shell peas, separating the peas from the pod for delivery to the
processor.
Dry peas. Green peas that have matured to the dry form for use as
food, feed, or seed.
Good farming practices. The cultural practices generally in use in
the county for the crop to make normal progress toward maturity and
produce at least the yield used to determine the production guarantee
and are those required by the green pea processor contract with the
processing company, and recognized by the National Institute of Food and
Agriculture as compatible with agronomic and weather conditions in the
county.
Green peas. Shell type and pod type peas that are grown under a
processor contract to be canned or frozen and sold for human
consumption.
Harvest. Combining (vining) of the peas.
Nurse crop (companion crop). A crop planted into the same acreage as
another crop, that is intended to be harvested separately, and which is
planted to improve growing conditions for the crop with which it is
grown.
Peas. Green or dry peas.
Planted acreage. In addition to the definition contained in the
Basic Provisions, peas must initially be placed in rows to be considered
planted. Acreage planted in any other manner will not be insurable
unless otherwise provided by the Special Provisions or by written
agreement.
Pod type. Green peas genetically developed to be eaten without
shelling (e.g., snap peas, snow peas, and Chinese peas).
Practical to replant. In lieu of the definition of ``practical to
replant'' contained in section 1 of the Basic Provisions, practical to
replant is defined as our determination, after loss or damage to the
insured crop, based on factors including, but not limited to, moisture
availability, condition of the field, time to crop maturity, and
marketing window, that replanting the insured crop will allow the crop
to attain maturity prior to the calendar date for the end of the
insurance period. It will not be considered practical to replant unless
the replanted acreage can produce at least 75 percent of the approved
yield, and the processor agrees in writing that it will accept the
production from the replanted acreage.
Price election. In lieu of the definition of ``Price election''
contained in section 1 of the Basic Provisions, price election is
defined as the price per pound stated in the processor contract
(contracted price) for the tenderometer reading, grade factor, or sieve
size contained in the Special Provisions.
Processor. Any business enterprise regularly engaged in canning or
freezing green peas for human consumption, that possesses all licenses
and permits for processing green
[[Page 278]]
peas required by the state in which it operates, and that possesses
facilities, or has contractual access to such facilities, with enough
equipment to accept and process contracted green peas within a
reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a
processor, containing at a minimum:
(a) The producer's commitment to plant and grow green peas, and to
deliver the green pea production to the processor;
(b) The processor's commitment to purchase all the production stated
in the processor contract; and
(c) A base contract price.
Multiple contracts with the same processor that specify amounts of
production will be considered as a single processor contract unless the
contracts are for different types of green peas.
Production guarantee (per acre). The number of pounds determined by
multiplying the approved actual production history yield per acre by the
coverage level percentage you elect. For shell type peas, the weight
will be determined after shelling.
Shell type. Green peas genetically developed to be shelled prior to
eating, canning or freezing.
2. Unit Division
(a) For any processor contract that stipulates the amount of
production to be delivered:
(1) In lieu of the definition contained in the Basic Provisions, a
basic unit will consist of all acreage planted to the insured crop in
the county that will be used to fulfill contracts with each processor;
(i) There will be no more than one basic unit for all production
contracted with each processor contract;
(ii) In accordance with section 12, all production from any basic
unit in excess of the amount under contract will be included as
production to count if such production is applied to any other basic
unit for which the contracted amount has not been fulfilled; and
(2) Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Optional units may only
be established based on shell type and pod type green peas if the shell
type acreage does not continue into the pod type acreage in the same
rows or planting pattern.
(b) For any processor contract that stipulates the number of acres
to be planted, in addition to or instead of, establishing optional units
by section, section equivalent or FSA farm serial number, or irrigated
and non-irrigated acreage, optional units may be established based on
shell type and pod type green peas if the shell type acreage does not
continue into the pod type acreage in the same rows or planting pattern.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one price election for all the green peas in
the county insured under this policy unless the Special Provisions
provide different price elections by type. The percentage of the maximum
price election you choose for one type will be applicable to all other
types insured under this policy.
(b) The appraised production from bypassed acreage that could have
been accepted by the processor will be included when determining your
approved yield.
(c) Acreage that is bypassed because it was damaged by an insurable
cause of loss will be considered to have a zero yield when determining
your approved yield.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
Cancellation and Termination
------------------------------------------------------------------------
State Dates
------------------------------------------------------------------------
Delaware and Maryland...................... Feb. 15.
All other states........................... Mar. 15.
------------------------------------------------------------------------
6. Report of Acreage
In addition to the provisions of section 6 of the Basic Provisions,
you must provide a copy of all processor contracts to us on or before
the acreage reporting date.
7. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the shell type and pod type green peas in the county
for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are grown under, and in accordance with, the requirements
of a processor contract executed on or before the acreage reporting date
and are not excluded from the processor contract at any time during the
crop year; and
(3) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Interplanted with another crop;
(ii) Planted into an established grass or legume; or
(iii) Planted as a nurse crop.
[[Page 279]]
(b) You will be considered to have a share in the insured crop if,
under the processor contract, you retain control of the acreage on which
the green peas are grown, you are at risk of loss, and the processor
contract provides for delivery of green peas under specified conditions
and at a stipulated base contract price.
(c) A commercial green pea producer who is also a processor may
establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or
officers of the processor must execute and adopt a resolution that
contains the same terms as an acceptable processor contract. Such
resolution will be considered a processor contract under this policy;
and
(3) Our inspection reveals that the processing facilities comply
with the definition of a processor contained in these Crop Provisions.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final
planting date, to the extent that the majority of producers in the area
would normally not further care for the crop, must be replanted unless
we agree that it is not practical to replant; and
(b) We will not insure any acreage that does not meet the rotation
requirements, if applicable, contained in the Special Provisions.
9. Insurance Period
In lieu of the provisions contained in section 11 of the Basic
Provisions, regarding the end of the insurance period, insurance ceases
at the earlier of:
(a) The date the green peas:
(1) Were destroyed;
(2) Should have been harvested but were not harvested;
(3) Were abandoned; or
(4) Were harvested;
(b) The date you harvest sufficient production to fulfill your
processor contract if the processor contract stipulates a specific
amount of production to be delivered;
(c) Final adjustment of a loss; or
(d) September 15 of the calendar year in which the insured green
peas would normally be harvested; or
(e) September 30 of the calendar year in which the insured peas
would normally be harvested if you provide notice to us that the insured
crop will be harvested as dry peas (see section 11(d)).
10. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions:
(a) Insurance is provided only against the following causes of loss
that occur during the insurance period:
(1) Adverse weather conditions, including:
(i) Excessive moisture that prevents harvesting equipment from
entering the field or that prevents the timely operation of harvesting
equipment; and
(ii) Abnormally hot or cold temperatures that cause an unexpected
number of acres over a large producing area to be ready for harvest at
the same time, affecting the timely harvest of a large number of such
acres or the processing of such production is beyond the capacity of the
processor, either of which causes the acreage to be bypassed.
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease but only on acreage not planted to peas the
previous crop year. (In certain instances, contained in the Special
Provisions or in a written agreement, acreage planted to peas the
previous year may be covered. Damage due to insufficient or improper
application of disease control measures is not covered);
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of
loss contained in section 10(a)(1) through (7) that occurs during the
insurance period.
(b) In addition to the causes of loss excluded by section 12 of the
Basic Provisions, we will not insure any loss of production due to:
(1) Bypassed acreage because of:
(i) The breakdown or non-operation of equipment or facilities; or
(ii) The availability of a crop insurance payment. We may deny any
indemnity immediately in such circumstance or, if an indemnity has been
paid, require you to repay it to us with interest at any time acreage
was bypassed due to the availability of a crop insurance payment or;
(2) Your failure to follow the requirements contained in the
processor contract.
11. Duties in the Event of Damage or Loss
In addition to the notices required by section 14 of the Basic
Provisions, you must give us notice:
(a) Not later than 48 hours after:
(1) Total destruction of the green peas on the unit; or
(2) Discontinuance of harvest on a unit on which unharvested
production remains.
(b) Within 3 days after the date harvest should have started on any
acreage that will
[[Page 280]]
not be harvested unless we have previously released the acreage. You
must also provide acceptable documentation of the reason the acreage was
bypassed. Failure to provide such documentation will result in our
determination that the acreage was bypassed due to an uninsured cause of
loss. If the crop will not be harvested and you wish to destroy the
crop, you must leave representative samples of the unharvested crop for
our inspection. The samples must be at least 10 feet wide and extend the
entire length of each field in each unit. The samples must not be
destroyed until the earlier of our inspection or 15 days after notice is
given to us;
(c) At least 15 days prior to the beginning of harvest if you intend
to claim an indemnity on any unit, or immediately if damage is
discovered during the 15 day period or during harvest, so that we may
inspect any damaged production. If you fail to notify us and such
failure results in our inability to inspect the damaged production, we
will consider all such production to be undamaged and include it as
production to count. You are not required to delay harvest; and
(d) Prior to the time the green peas would normally be harvested if
you intend to harvest the green peas as dry peas.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee, by type if applicable;
(2) Multiplying each result of section 12(b)(1) by the respective
price election, by type if applicable;
(3) Totaling the results of section 12(b)(2) if there are more than
one type;
(4) Multiplying the total production to count (see section 12(c)),
for each type if applicable, by its respective price election;
(5) Totaling the results of section 12(b)(4) if there are more than
one type;
(6) Subtracting the results of section 12(b)(4) from the results of
section 12(b)(2) if there is only one type or subtracting the results of
section 12(b)(5) from the result of section 12(b)(3) if there are more
than one type; and
(7) Multiplying the result of section 12(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of shell type green peas
in the unit, with a guarantee of 4,000 pounds per acre and a price
election of $0.09 per pound. You are only able to harvest 200,000
pounds. Your indemnity would be calculated as follows:
(1) 100 acres x 4,000 pounds = 400,000 pounds guarantee;
(2) 400,000 pounds x $0.09 price election = $36,000.00 value of
guarantee;
(4) 200,000 pounds x $0.09 price election = $18,000.00 value of
production to count;
(6) $36,000.00 - $18,000.00 = $18,000.00 loss; and
(7) $18,000.00 x 100 percent = $18,000.00 indemnity payment.
You also have a 100 percent share in 100 acres of pod type green
peas in the same unit, with a guarantee of 5,000 pounds per acre and a
price election of $0.13 per pound. You are only able to harvest 450,000
pounds. Your total indemnity for both shell type and pod type green peas
would be calculated as follows:
(1) 100 acres x 4,000 pounds = 400,000 pounds guarantee for the
shell type, and 100 acres x 5,000 pounds = 500,000 pounds guarantee for
the pod type;
(2) 400,000 pounds guarantee x $0.09 price election = $36,000.00
value of guarantee for the shell type, and 500,000 pounds guarantee x
$0.13 price election = $65,000.00 value of guarantee for the pod type;
(3) $36,000.00 + $65,000.00 = $101,000.00 total value of guarantee;
(4) 200,000 pounds x $0.09 price election = $18,000.00 value of
production to count for the shell type, and
4450,000 pounds x $0.13 = $58,500.00 value of production to count
for the pod type;
(5) $18,000.00 + $58,500.00 = $76,500.00 total value of production
to count;
(6) $101,000.00 - $76,500.00 = $24,500.00 loss; and
(7) $24,500.00 loss x 100 percent = $24,500.00 indemnity payment.
(c) The total production to count, specified in pounds, from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes or;
(D) For which you fail to provide production records that are
acceptable to us.
(ii) Production lost due to uninsured causes.
(iii) Production on acreage that is bypassed unless the acreage was
bypassed due to an insured cause of loss which resulted in production
which would not be acceptable under the terms of the processor contract.
(iv) Potential production on insured acreage that you intend to put
to another use or
[[Page 281]]
abandon, if you and we agree on the appraised amount of production. Upon
such agreement, the insurance period for that acreage will end when you
put the acreage to another use or abandon the crop. If agreement on the
appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested.
(2) All harvested green pea production from the insurable acreage.
The amount of such production will be determined by dividing the dollar
amount paid, payable, or which should have been paid under the terms of
the processor contract for the quality and quantity of the peas
delivered to the processor by the base contract price per pound;
(3) All harvested green pea production from any of your other
insurable units that have been used to fulfill your processor contract
for this unit; and
(4) All dry pea production from the insurable acreage if you gave
notice in accordance with section 11(d) for any acreage you intended to
harvest as dry peas. The harvested or appraised dry pea production will
be multiplied by 1.667 for shell types and 3.000 for pod types to
determine the green pea production equivalent. No adjustment for quality
deficiencies will be allowed for dry pea production.
13. Late Planting
A late planting period is not applicable to green peas unless
allowed by the Special Provisions and you provide written approval from
the processor by the acreage reporting date that it will accept the
production from the late planted acres when it is expected to be ready
for harvest.
14. Prevented Planting
Your prevented planting coverage will be 40 percent of your
production guarantee for timely planted acreage. If you have limited or
additional levels of coverage, as specified in 7 CFR part 400, subpart
T, and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[62 FR 61903, Nov. 20, 1997, as amended at 62 FR 65173, Dec. 10, 1997;
76 FR 4804, Jan. 27, 2011]
Sec. 457.138 Grape crop insurance provisions.
The grape crop insurance provisions for the 2010 and succeeding crop
years are as follows:
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Grape Crop Provisions
1. Definitions
Graft. To unite a shoot or bud (scion) with a rootstock or an
existing vine in accordance with recommended practices to form a living
union.
Harvest. Removing the mature grapes from the vines either by hand or
machine.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Set out. Physically planting the grape plants in the vineyard.
Ton. Two thousand (2,000) pounds avoirdupois.
Type. A category of grapes (one or more varieties) identified as a
type in the Special Provisions.
Variety. A kind of grape that is distinguished from any other by
unique characteristics such as, but not limited to, size, color, skin
thickness, acidity, flavors and aromas. In Arizona and California each
variety is identified as a separate type in the Special Provisions
except for type 095 (other varieties). Type 095 is used to designate
varieties not listed as a separate type.
2. Unit Division
(a) In Arizona and California only:
(1) A basic unit as defined in section 1 of the Basic Provisions
will be divided into additional basic units by each variety that you
insure; and
(2) Provisions in the Basic Provisions that provide for optional
units by section, section equivalent, or FSA farm serial number and by
irrigated and non-irrigated practices are not applicable. Unless
otherwise allowed by written agreement, optional units may only be
established if each optional unit is located on non-contiguous land or
grown and insured under an organic farming practice.
[[Page 282]]
(b) In all states except Arizona and California, in addition to, or
instead of, establishing optional units by section, section equivalent,
or FSA farm serial number and by irrigated and non-irrigated acreage and
for acreage grown and insured under an organic farming practice as
provided in the unit division provisions contained in the Basic
Provisions, a separate optional unit may be established if each optional
unit:
(1) Is located on non-contiguous land; or
(2) Consists of a separate type when separate types are specified in
the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) In Arizona and California, you may select only one coverage
level and price election for each grape variety you elect to insure in
the county.
(b) In all states except Arizona and California, you may select only
one coverage level and price election for each grape type in the county
as specified in the Special Provisions. The coverage level you choose
for each grape type is not required to have the same percentage
relationship. The price election you choose for each type is not
required to have the same percentage relationship to the maximum price
election offered by us for each type. For example, if you choose 75
percent coverage level and 100 percent of the maximum price election for
one type, you may choose 65 percent coverage level and 75 percent of the
maximum price election for another type. If you elect the Catastrophic
Risk Protection (CAT) level of insurance for any grape type, the CAT
level of coverage will be applicable to all insured grape acreage in the
county.
(c) In all states except Arizona and California, if you acquire a
share in any grape acreage after you submit your application, such
acreage is insurable under the terms of the policy and you did not
include the grape type on your application, we will assign the
following:
(1) A coverage level equal to the lowest coverage level you selected
for any other grape type: and
(2) A price election percentage equal to the type with the lowest
coverage level you selected, if you elected additional coverage; or 55
percent of the maximum price election, if you elected CAT.
(d) In addition to the definition of ``price election'' contained in
section 1 of the Basic Provisions, a price election based on the price
contained in your grape contract is allowed if provided by the Special
Provisions. In the event any contract requires the use of a cultural
practice that will reduce the amount of production from any insured
acreage, your approved yield will be adjusted in accordance with section
3(f) and (g) to reflect the reduced production potential.
(e) In Arizona and California only, if the Special Provisions do not
provide a price election for a specific variety you wish to insure, you
may apply for a written agreement to establish a price election. Your
application for the written agreement must include:
(1) The number of tons sold for at least the two most recent crop
years; and
(2) The price received for all production of the grape variety in
the years for which production records are provided.
(f) You must report by the production reporting date designated in
section 3 of the Basic Provisions, by type or variety, if applicable:
(1) Any damage, removal of bearing vines, change in practices or any
other circumstance that may reduce the expected yield below the yield
upon which the insurance guarantee is based, and the number of affected
acres;
(2) The number of bearing vines on insurable and uninsurable
acreage;
(3) The age of the vines and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and any time the planting pattern of such
acreage is changed:
(i) The age of the interplanted crop, and the grape type or variety,
if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your approved yield.
(g) We will reduce the yield used to establish your production
guarantee, based on our estimate of the effect on yield potential of any
of the items listed in section 3(f)(1) through (4). If you fail to
notify us of any circumstance that may reduce your yields from previous
levels, we will reduce your production guarantee at any time we become
aware of the circumstance.
(h) Your request to increase the coverage level or price election
percentage will not be accepted if a cause of loss that could or would
reduce the yield of the insured crop is evident when your request is
made.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is October 31 preceding the cancellation date for Arizona
and California and August 31 preceding the cancellation date for all
other states.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are January 31 in Arizona and
California, and November 20 for all other states.
[[Page 283]]
6. Report of Acreage
In addition to the requirements of section 6 of the Basic
Provisions, you must report your acreage:
(a) In Arizona and California, by each grape variety you insure; or
(b) In all other states, by each grape type.
7. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be any insurable variety that you elect to insure in
Arizona and California, or in all other states all insurable types, in
the county for which a premium rate is provided by the actuarial
documents:
(a) In which you have a share;
(b) That are grown for wine, juice, raisins, or canning (if such
grapes are put to another use (i.e. table grapes), the production to
count will be in accordance with section 12(c)(2(ii));
(c) That are grown in a vineyard that, if inspected, is considered
acceptable by us;
(d) That, after being set out or grafted, have reached the number of
growing seasons designated by the Special Provisions; and
(e) That have produced an average of at least two tons of grapes per
acre (or as otherwise provided in the Special Provisions) in at least
one of the three crop years immediately preceding the insured crop year,
unless we inspect and allow insurance on acreage that has not produced
this amount.
8. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions that
prohibit insurance attaching to a crop planted with another crop, grapes
interplanted with another perennial crop are insurable unless we inspect
the acreage and determine that it does not meet the requirements
contained in your policy.
9. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) For the year of application, coverage begins on February 1 in
Arizona and California, and November 21 in all other states.
Notwithstanding the previous sentence, if your application is received
by us after January 12 but prior to February 1 in Arizona or California,
or after November 1 but prior to November 21 in all other states,
insurance will attach on the 20th day after your properly completed
application is received in our local office, unless we inspect the
acreage during the 20-day period and determine that it does not meet
insurability requirements. You must provide any information that we
require for the crop or to determine the condition of the vineyard.
(2) For each subsequent crop year that the policy remains
continuously in force, coverage begins on the day immediately following
the end of the insurance period for the prior crop year. Policy
cancellation that results solely from transferring to a different
insurance provider for a subsequent crop year will not be considered a
break in continuous coverage.
(3) If in accordance with the terms of the policy, your grape policy
is cancelled or terminated for any crop year after insurance attached
for that crop year, but on or before the cancellation and termination
dates, whichever is later, insurance will not be considered to have
attached for that crop year and no premium, administrative fee, or
indemnity will be due for such crop year.
(4) The calendar date for the end of the insurance period for each
crop year is as follows, unless otherwise specified in the Special
Provisions:
(i) October 10 in Mississippi and Texas;
(ii) November 10 in Arizona, California, Idaho, Oregon and
Washington; and
(iii) November 20 in all other states.
(b) In addition to the provisions of section 11 of the Basic
Provisions:
(1) If you acquire an insurable share in any insurable acreage after
coverage begins, but on or before the acreage reporting date for the
crop year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period. Acreage
acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage
of grapes on or before the acreage reporting date for the crop year,
insurance will not be considered to have attached to, and no premium or
indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the vineyard;
(3) Insects, except as excluded in 10(b)(1), but not damage due to
insufficient or improper application of pest control measures;
[[Page 284]]
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against damage or loss of production due to:
(1) Phylloxera, regardless of cause; or
(2) Inability to market the grapes for any reason other than actual
physical damage from an insurable cause specified in this section. For
example, we will not pay you an indemnity if you are unable to market
due to quarantine, boycott, or refusal of any person to accept
production.
11. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 of the Basic
Provisions, the following will apply:
(a) You must notify us within 3 days of the date harvest should have
started if the crop will not be harvested.
(b) If the crop has been damaged during the growing season and you
previously gave notice in accordance with section 14 of the Basic
Provisions (Sec. 457.8), you must also provide notice at least 15 days
prior to the beginning of harvest if you intend to claim an indemnity as
a result of the damage previously reported. You must not destroy the
damaged crop that is marketed in normal commercial channels, until after
we have given you written consent to do so. If you fail to meet the
requirements of this section, all such production will be considered
undamaged and included as production to count.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee;
(2) Multiplying each result in section 12(b)(1) by the respective
price election you selected for each type or variety;
(3) Totaling the results in section 12(b)(2);
(4) Multiplying the total production to count of each type or
variety, if applicable, (see section 12 (c) through (e)) by the
respective price election you selected;
(5) Totaling the results in section 12(b)(4);
(6) Subtracting the result in section 12(b)(5) from the result in
section 12(b)(3); and
(7) Multiplying the result in section 12(b)(6) by your share.
(c) The total production to count (in tons) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned or destroyed by you without our consent;
(B) That is damaged solely by uninsured causes; or
(C) For which you fail to provide production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies in accordance with subsection 12 (e));
and
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us of further damage or that
harvest is general in the area unless you harvested the crop, in which
case we will use the harvested production. If you do not continue to
care for the crop, our appraisal made prior to deferring the claim will
be used to determine the production to count; and
(2) All harvested production from the insurable acreage:
(i) Grape production that is harvested and dried for raisins will be
converted to a fresh weight basis by multiplying the number of tons of
raisin production by 4.5.
(ii) Grapes grown for wine, juice, raisins or canning and put to
another use, will be counted as production to count on a tonnage basis.
No quality adjustment other than that specifically provided for in your
policy is available.
(d) If any grapes are harvested before normal maturity or for a
special use (such as Champagne or Botrytis-affected grapes), the
production of such grapes will be increased by the factor obtained by
dividing the price per ton received for such grapes by the price per ton
for fully matured grapes of the type for which the claim is being made.
(e) Mature marketable grape production may be adjusted for quality
deficiencies as follows:
(1) Production will be eligible for quality adjustment if, due to
insurable causes, it has
[[Page 285]]
a value of less than 75 percent of the average market price of undamaged
grapes of the same or similar variety. The value per ton of the
qualifying damaged production and the average market price of undamaged
grapes will be determined on the earlier of the date the damaged
production is sold or the date of final inspection for the unit. The
average market price of undamaged production will be calculated by
averaging the prices being paid by usual marketing outlets for the area
during the week in which the damaged grapes were valued.
(2) Grape production that is eligible for quality adjustment, as
specified in subsection 12(e)(1) will be reduced by:
(i) Dividing the value per ton of the damaged grapes by the value
per ton for undamaged grapes (the value of undamaged grapes will be the
lesser of the average market price or the maximum price election for
such grapes); and
(ii) Multiplying this result (not to exceed 1.000) by the number of
tons of the eligible damaged grapes.
13. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 33741, June 23, 1997, as amended at 62 FR 65173, Dec. 10, 1997;
63 FR 31338, June 9, 1998; 64 FR 24932, May 10, 1999; 74 FR 32055, July
7, 2009]
Sec. 457.139 Fresh market tomato (dollar plan) crop insurance
provisions.
The fresh market tomato (dollar plan) crop insurance provisions for
the 2013 and succeeding crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Fresh market tomato (dollar plan) crop provisions
1. Definitions
Acre. 43,560 square feet of planted acreage when row widths do not
exceed six feet. If row widths exceed six feet, the land area on which
at least 7,260 linear feet of rows are planted.
Allowable cost. The dollar amount per carton for harvesting,
packing, and handling as stated in the Special Provisions.
Amount of insurance per acre. The dollar amount of insurance per
acre obtained by multiplying the reference maximum dollar amount shown
in the actuarial documents by the coverage level percentage you elect.
Carton. Twenty-five (25) pounds of the insured crop.
Crop year. In lieu of the definition contained in the Basic
Provisions (Sec. 457.8), crop year is a period of time that begins on
the first day of the earliest planting period for fall planted tomatoes
and continues through the last day of the insurance period for spring
planted tomatoes. The crop year is designated by the calendar year in
which spring planted tomatoes are harvested.
Direct marketing. The sale of the insured crop directly to consumers
without the intervention of an intermediary such as a registered
handler, wholesaler, retailer, packer, processor, shipper or buyer.
Examples of direct marketing include selling through an on-farm or
roadside stand, farmer's market, and permitting the general public to
enter the field for the purpose of picking all or a portion of the crop.
Excess rain. An amount of precipitation sufficient to directly
damage the crop.
Freeze. The formation of ice in the cells of the plant or its fruit,
caused by low air temperatures.
Fresh market tomatoes. Field grown mature green or ripe fresh market
tomatoes that meet the Agricultural Marketing Service United States
Standards for Grades of Fresh Tomatoes; and the applicable Federal
Marketing Order and Florida Tomato Committee Regulations, or their
successors.
Harvest. The picking of fresh market tomatoes from the plants,
excluding tomatoes salvaged by penhookers.
Mature green tomato. A tomato that:
(1) Has a glossy waxy skin that cannot be torn by scraping;
(2) Has well-formed, jelly-like substance in the locules;
(3) Has seeds that are sufficiently hard so as to be pushed aside
and not cut by a sharp knife in slicing; and
(4) Shows no red color.
Minimum value. The dollar amount per carton shown in the Special
Provisions we will use to value appraised and unsold harvested
production to count.
Penhookers. Individuals who purchase the right to salvage tomatoes
remaining in the field after commercial harvests are completed.
Plant stand. The number of live plants per acre prior to the
occurrence of an insured cause of loss.
Planting period. The period of time designated in the actuarial
documents in which the tomatoes must be planted to be considered fall,
winter or spring-planted tomatoes.
Potential production. The number of cartons of field grown mature
green or ripe fresh market tomatoes that the tomato plants will or would
have produced per acre assuming
[[Page 286]]
normal growing conditions and practices by the end of the insurance
period.
Price received. The gross dollar amount per carton received by the
producer before deductions of allowable costs.
Registered handler. A person or entity officially certified by the
Florida Tomato Committee, or successor entity, to inspect and enforce
all the handling regulations for fresh market tomatoes, and report the
required packout data to the Florida Tomato Committee.
Ripe tomato. A tomato that has a definite break in color from green
to tannish-yellow, pink or red.
Row width. The widest distance from the center of one row of plants
to the center of an adjacent row of plants.
Tropical depression. A system identified by the U.S. Weather Service
as a tropical depression, and for the period of time so designated,
including tropical storms, gales, and hurricanes.
2. Unit Division
(a) A basic unit, as defined in section 1 of the Basic Provisions,
will also be divided into additional basic units by planting period.
(b) Provisions in the Basic Provisions that allow optional units by
irrigated and non-irrigated practices are not applicable.
3. Amounts of Insurance and Production Stages
(a) In addition to the requirements of section 3 of the Basic
Provisions you may select only one coverage level (and the corresponding
amount of insurance designated in the actuarial documents for the
applicable planting period and practice) for all the tomatoes in the
county insured under this policy.
(b) The amount of insurance you choose for each planting period and
practice must have the same percentage relationship to the maximum price
offered by us for each planting period and practice. For example, if you
choose 100 percent of the maximum amount of insurance for a specific
planting period and practice, you must also choose 100 percent of the
maximum amount of insurance for all other planting periods and
practices.
(c) The production reporting requirements contained in section 3 of
the Basic Provisions do not apply to fresh market dollar plan tomatoes.
(d) The amounts of insurance per acre are progressive by stages as
follows:
----------------------------------------------------------------------------------------------------------------
Percent of the
amount of
Stage insurance per Length of time if transplanted
acre that you
selected
----------------------------------------------------------------------------------------------------------------
1................................................... 50 From planting through the 29th day
after planting.
2................................................... 75 From the 30th day after planting until
the beginning of stage 3.
3................................................... 90 From the 60th day after planting until
the beginning of the final stage.
Final............................................... 100 Begins the earlier of 75 days after
planting, or the beginning of harvest.
----------------------------------------------------------------------------------------------------------------
(e) Any acreage of fresh market tomatoes damaged in the first,
second, or third stage to the extent that the majority of producers in
the area would not normally further care for the crop, the indemnity
payable for such acreage will be based on the stage the plants had
achieved when the insured damage occurred, even if the producer
continues to care for the damaged tomatoes.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is April 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are July 31.
6. Report of Acreage
In addition to the requirements of section 6 of the Basic
Provisions, you must report on or before the acreage reporting date
contained in the Special Provisions for each planting period:
(a) All the acreage of tomatoes in the county insured under this
policy in which you have a share;
(b) The dates the acreage was planted within each planting period;
and
(c) The row width.
7. Annual Premium
In lieu of the premium amount determinations contained in section 7
of the Basic Provisions, the annual premium amount for each cultural
practice (e.g., fall transplanted irrigated) is determined by
multiplying the final stage amount of insurance per acre by the premium
rate for the cultural practice as
[[Page 287]]
established in the Actuarial Table, by the insured acreage, by your
share at the time coverage begins, and by any applicable premium
adjustment factors contained in the actuarial documents.
8. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the field grown mature green or ripe fresh market
tomato types in the county as specified in the Special Provisions for
which a premium rate is provided in the actuarial documents:
(a) In which you have a share;
(b) That are:
(1) Planted to be harvested and sold as fresh market tomatoes;
(2) Planted within the planting periods designated in the actuarial
documents;
(3) Grown under an irrigated practice;
(4) Grown on acreage covered by plastic mulch except where the
Special Provisions allows otherwise;
(5) Grown by a person who in at least one of the three previous crop
years:
(i) Grew tomatoes for commercial sale; or
(ii) Participated in managing a fresh market tomato farming
operation;
(c) That are not:
(1) Interplanted with another crop;
(2) Planted into an established grass or legume;
(3) Grown for direct marketing; or
(4) Direct seeded fresh market tomatoes, unless insured by written
agreement.
9. Insurable Acreage
(a) In lieu of the provisions of section 9 of the Basic Provisions,
that prohibit insurance attaching if a crop has not been planted in at
least one of the three previous crop years, we will insure newly cleared
land and former pasture land planted to fresh market tomatoes.
(b) In addition to the provisions of section 9 of the Basic
Provisions:
(1) You must replant any acreage of tomatoes damaged during the
planting period in which initial planting took place whenever less than
50 percent of the plant stand remains: and
(i) It is practical to replant;
(ii) If, at the time the crop was damaged, the final day of the
planting period has not passed; and
(iii) The damage occurs within 30 days of transplanting.
(2) Whenever tomatoes initially are planted during the fall or
winter planting periods and the conditions specified in sections 9(b)(1)
(ii) and (iii) are not met, you may elect:
(i) To replant such acreage and collect any replant payment due as
specified in section 12. The initial planting period coverage will
continue for such replanted acreage.
(ii) Not to replant such acreage and receive an indemnity based on
the stage of growth the plants had attained at the time of damage.
However, such an election will result in the acreage being uninsurable
in the subsequent planting period.
(3) We will not insure any acreage on which tomatoes (except for
replanted tomatoes in accordance with sections 9(b)(1) and (2)),
peppers, eggplants, strawberries or tobacco have been grown and the soil
was not fumigated or otherwise properly treated before planting the
insured tomatoes.
10. Insurance Period
In lieu of section 11 of the Basic Provisions, coverage begins on
each unit or part of a unit the later of the date we accept your
application, or when the tomatoes are planted in each planting period.
Coverage ends on each unit at the earliest of:
(a) Total destruction of the tomatoes on the unit;
(b) Abandonment of the tomatoes on the unit;
(c) The date harvest should have started on the unit on any acreage
which will not be harvested;
(d) Final adjustment of a loss on the unit;
(e) Final harvest on the unit; or
(f) The calendar date for the end of the insurance period that is
125 days after the date of transplanting or replanting with transplants.
11. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Excess rain;
(2) Fire;
(3) Freeze;
(4) Hail;
(5) Tornado;
(6) Tropical depression; or
(7) Failure of the irrigation water supply, if caused by an insured
cause of loss that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against any loss of production due
to:
(1) Disease or insect infestation, unless no effective control
measure exists for such disease or insect infestation; or
(2) Failure to harvest in a timely manner or failure to sell the
tomatoes, unless such failure is due to actual physical damage caused by
an insured cause of loss that occurs during the insurance period. For
example, we will not pay an indemnity if you are
[[Page 288]]
unable to sell the insured crop due to quarantine, boycott, or refusal
of any person to accept production.
12. Replanting Payments
(a) In accordance with section 13 of the Basic Provisions, a
replanting payment is allowed if, due to an insured cause of loss, more
than 50 percent of the plant stand will not produce tomatoes and it is
practical to replant.
(b) The maximum amount of the replanting payment per acre will be
the lesser of your actual cost of replanting or the result obtained by
multiplying the per acre replanting payment amount contained in the
Special Provisions by your insured share.
(c) In lieu of the provisions contained in section 13 of the Basic
Provisions, that limit a replanting payment to one each crop year, only
one replanting payment will be made for acreage planted during each
planting period within the crop year.
13. Duties in the Event of Damage or Loss
In addition to the requirements contained in section 14 of the Basic
Provisions, if you intend to claim an indemnity on any unit you must
also give us notice not later than 72 hours after the earliest of:
(a) The time you discontinue harvest of any acreage on the unit;
(b) The date harvest normally would start if any acreage on the unit
will not be harvested; or
(c) The calendar date for the end of the insurance period.
14. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage in each stage by the amount of
insurance per acre for the final stage;
(2) Multiplying each result in section 14(b)(1) by the percentage
for the applicable stage (see section 3(d));
(3) Total the results of section 14(b)(2);
(4) Subtracting either of the following values from the result of
section 14(b)(3):
(i) For other than catastrophic risk protection coverage, the total
value of production to be counted (see section 14(c)); or
(ii) For catastrophic risk protection coverage, the result of
multiplying the total value of production to count determined in
accordance with section 14(c) by the percentage contained in the Special
Provisions.
(5) Multiplying the result of section 14(b)(4) by your share.
------------------------------------------------------------------------
------------------------------------------------------------------------
For Example: You have a 100 percent share in 10.0 acres of fresh market
tomatoes. You select a 70% coverage level of the reference maximum
dollar amount of $7,500 per acre. The average price received is $10.00
per carton of tomatoes. Allowable costs are $4.25 per carton. Minimum
value is $5.00 per carton. Your total sold production is 5,000 cartons
(5,000 / 10.0 = 500 cartons per acre) and you have an additional 1,000
cartons of unsold harvested production (1,000 / 10.0 = 100 cartons per
acre). Your loss occurred in the final stage of production. Your total
indemnity is calculated as follows:
------------------------------------------------------------------------
$7,500 x 70% = dollar $5,250
amount of insurance
per acre.
14(c)(3)................. 500 cartons x $5.75 = 2,875
value of sold
production ($10
selling price minus
$4.25 allowable cost).
14(c)(4)................. 100 cartons of unsold +500
harvested production x
$5 minimum value per
carton.
Total value of 3,375
production to count.
14(b)(5)................. Indemnity per acre = 1,875
($5,250 - $3,375) x
100% share.
$1,875 x 10.0 acres = 18,750
$18,750 total
indemnity payment.
------------------------------------------------------------------------
(c) The total value of production to count from all insurable
acreage on the unit will include:
(1) Not less than the amount of insurance per acre for the stage for
any acreage:
(i) That is abandoned;
(ii) Put to another use without our consent;
(iii) That is damaged solely by uninsured causes; or
(iv) For which you fail to provide acceptable production records;
(2) The value of the following appraised production will not be less
than the dollar amount obtained by multiplying the number of cartons of
appraised tomatoes by the minimum value per carton shown in the Special
Provisions for the planting period:
(i) Potential production on any fresh market tomato acreage that has
not been harvested the required number of times as specified in the
Special Provisions.
(ii) Unharvested mature green tomatoes (unharvested production that
is damaged or
[[Page 289]]
defective due to insurable causes and is not marketable will not be
counted as production to count);
(iii) Production lost due to uninsured causes; and
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) We may require you to continue to care for the crop so that a
subsequent appraisal may be made or the crop harvested to determine
actual production. (If we require you to continue to care for the crop
and you do not do so, the original appraisal will be used); or
(B) You may elect to continue to care for the crop, in which case
the amount of production to count for the acreage will be the harvested
production, or our reappraisal if the crop is not harvested.
(3) The total value of all sold harvested production from the
insurable acreage will be the dollar amount obtained by subtracting the
allowable cost contained in the Special Provisions from the price
received for each carton of fresh market tomatoes in the load (this
result may not be less than the minimum value shown in the Special
Provisions for any carton of tomatoes), and multiplying this result by
the number of cartons of fresh market tomatoes harvested.
(4) The total value of all unsold harvested production will be the
dollar amount obtained by multiplying the number of cartons of such
tomatoes on the unit by the minimum value shown in the Special
Provisions for the planting period. Harvested production that is damaged
or defective due to an insured cause of loss and is not sold will not be
counted as production to count.
(5) Any penhooker salvage value paid to you will be added to the
total dollar value of production to count.
15. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
16. Minimum Value Option.
(a) The provisions of this option are continuous and will be
attached to and made a part of your insurance policy, if:
(1) You elect the Minimum Value Option on your application, or on a
form approved by us, on or before the sales closing date for the initial
crop year in which you wish to insure fresh market tomatoes (dollar
plan) under this option, and pay the additional premium indicated in the
actuarial documents for this optional coverage; and
(2) You have not elected coverage under the Catastrophic Risk
Protection Endorsement.
(b) In lieu of the provisions contained in section 14(c)(3) and
14(c)(4) of these Crop Provisions, the total value of harvested
production will be determined as follows:
(1) For sold harvested production, the dollar amount obtained by
subtracting the allowable cost contained in the Special Provisions from
the price received for each carton of fresh market tomatoes in the load
(this result may not be less than the minimum value option price
contained in the Special Provisions for any carton of tomatoes sold),
and multiplying this result by the number of cartons of fresh market
tomatoes sold; and
(2) For unsold harvested production, the dollar amount obtained by
multiplying the number of cartons of such fresh market tomatoes on the
unit by the minimum value shown in the Special Provisions for the
planting period. Harvested production that is damaged or defective due
to an insured cause of loss and is not sold will not be counted as
production to count.
(c) This option may be canceled by either you or us for any
succeeding crop year by giving written notice on or before the
cancellation date preceding the crop year for which the cancellation of
this option is to be effective.
------------------------------------------------------------------------
------------------------------------------------------------------------
Example with Minimum Value Option: You have a 100 percent share in 10.0
acres of fresh market tomatoes. You select a 70% coverage level of the
reference maximum dollar amount of $7,500 per acre. The average price
received is $6.00 per carton of tomatoes. Allowable costs are $4.25 per
carton. Minimum value is $5.00 per carton. The Minimum Value Option
price is $2.00 per carton. Your total sold production is 5,000 cartons
(5,000 / 10.0 = 500 cartons per acre) and you have an additional 1,000
cartons of unsold harvested production (1,000 / 10.0 = 100 cartons per
acre). Your loss occurred in the final stage of production. Your total
indemnity is calculated as follows:
------------------------------------------------------------------------
$7,500 x 70% = dollar $5,250
amount of insurance
per acre.
16(b)(1)................. 500 cartons x $2 = 1,000
value of sold
production ($6 price
received minus $4.25
allowable costs =
$1.75. $2.00 minimum
value option price is
greater than $1.75).
16(b)(2)................. 100 cartons of unsold 500
harvested production x
$5 minimum value per
carton.
Total value of 1,500
production to count.
[[Page 290]]
16(b).................... Indemnity per acre = 3,750
$5,250 - $1,500 =
$3,750 x 100% share.
$3,750 x 10.0 acres = 37,500
$37,500 total
indemnity payment.
------------------------------------------------------------------------
[62 FR 14777, Mar. 28, 1997; 62 FR 63634, Dec. 2, 1997, as amended at 62
FR 65174, Dec. 10, 1997; 77 FR 22469, Apr. 16, 2012]
Sec. 457.140 Dry pea crop insurance provisions.
The dry pea crop insurance provisions for the 2011 and succeeding
crop years are as follows:
FCIC policies:
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Dry Pea Crop Provisions
1. Definitions
Adequate stand. A population of live plants per acre that will
produce at least the yield used to establish your production guarantee.
Base contract price. The price per pound stipulated in the
processor/seed company contract without regard to discounts or
incentives that may apply, and that will be paid to the producer for at
least 50 percent of the total production under contract with the
processor/seed company.
Combining. A mechanical process that separates the peas from the
pods and other vegetative matter and places the peas into a temporary
storage receptacle.
Conditioning. A process that improves the quality of production by
screening or any other operation commonly used in the dry pea industry
to remove dry peas that are deficient in quality.
Contract seed peas. Peas (Pisum sativum L.) grown under the terms of
a processor/seed company contract for the purpose of producing seed to
be used in planting a future year's crop.
Dry peas. Peas (Pisum sativum L.), Austrian Peas (Pisum sativum spp
arvense), Lentils (Lens culinaris Medik.), Chickpeas (Cicer arietinum
L.), and other types as listed on the Special Provisions.
Harvest. Combining of dry peas. Dry peas that are swathed prior to
combining are not considered harvested.
Local market price. The cash price per pound for the U.S. No. 1
grade of dry peas as determined by us. Such price will be the prevailing
dollar amount these buyers are willing to pay for dry peas containing
the maximum limits of quality deficiencies allowable for the U.S. No. 1
grade. Factors not associated with grading under the United States
Standards for Whole Dry Peas, Split Peas and Lentils will not be
considered, unless otherwise specified in the Special Provisions.
Nurse crop (companion crop). A crop planted into the same acreage as
another crop to improve the growing conditions for the crop with which
it is grown, and that is intended to be harvested separately.
Planted acreage. In addition to the definition contained in the
Basic Provisions, dry peas must initially be planted in rows to be
considered planted. Acreage planted in any other manner will not be
insurable unless otherwise provided by the Special Provisions or by
written agreement.
Practical to replant. In addition to the definition contained in the
Basic Provisions, it will not be considered practical to replant:
(a) Contract seed peas unless the processor/seed company will accept
the production under the terms of the processor/seed company contract.
(b) Fall-planted dry peas more than 25 days after the final planting
date for the corresponding spring-planted type of dry peas.
(c) All other dry peas more than 25 days after the final planting
date unless replanting is generally occurring in the area.
Price election. In addition to the provisions of the definition
contained in the Basic Provisions, the price election for contract seed
peas will be the percentage you elect (not to exceed 100 percent) of the
base contract price and used for the purposes of determining premium and
indemnity for contract seed peas under this policy.
Processor/seed company. Any business enterprise regularly engaged in
the processing of contract seed peas, that possesses all licenses and
permits for marketing contract seed peas required by the state in which
it operates, and that owns, or has contracted, sufficient drying,
screening, and bagging or packaging equipment to accept and process the
contract seed peas within a reasonable amount of time after harvest.
Processor/seed company contract. A written agreement between the
producer and the processor/seed company, executed by the acreage
reporting date, containing at a minimum:
(a) The producer's promise to plant and grow one or more specific
varieties of contract seed peas, and deliver the production from those
varieties to the processor/seed company;
[[Page 291]]
(b) The processor/seed company's promise to purchase all the
production stated in the contract; and
(c) A fixed price, or a method to determine such price based on
published information compiled by a third party, that will be paid to
the producer for at least 50 percent of the production stated in the
contract.
Swathed. Severance of the stem and pods from the ground without
removal of the seeds from the pods and placing them into windrows.
Type. A category of dry peas identified as a type in the Special
Provisions.
Windrow. Dry peas where the plants are cut and placed in a row.
2. Unit Division
In addition to, or instead of, establishing optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated acreage as provided in the unit division provisions
contained in the Basic Provisions, separate optional units may be
established for each dry pea type as specified on the Special
Provisions. Contract seed peas and dry pea types not grown under a
processor/seed company contract may qualify for separate optional units
even if they share a common variety provided each dry pea type is grown
on separate acreage and the production is kept separate.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In accordance with the requirements of section 3(b) of the Basic
Provisions, you may select only one coverage level for each type listed
on the Special Provisions. However, if you elect the Catastrophic Risk
Protection (CAT) level of insurance for any dry pea type, the CAT level
of coverage will be applicable to all insured dry pea acreage in the
county.
(b) In addition to the requirements of section 3 of the Basic
Provisions:
(1) If the Special Provisions do not designate separate price
elections by type, you may select only one price election for all dry
peas in the county insured under this policy.
(2) If the Special Provisions designate separate price elections by
type, you may select one price election for each dry pea type so
designated in the Special Provisions even if the prices for each type
are the same. The price elections you choose for each type are not
required to have the same percentage relationship to the maximum price
offered by us for each type. For example, if you choose 100 percent of
the maximum price election for one type, you may choose 75 percent of
the maximum price election for another type.
(c) In addition to the requirements of section 3 of the Basic
Provisions, in counties with both a fall and spring sales closing date
for the insured crop:
(1) If you do not have any insured fall-planted dry pea acreage
covered under the Winter Coverage Option, you may change your coverage
level or percentage of price election until the spring sales closing
date; or
(2) If you have any insured fall-planted dry pea acreage covered
under the Winter Coverage Option, you may not change your coverage level
or percentage of price election after the fall sales closing date.
(d) If a dry pea type is added after the sales closing date, we will
assign:
(1) A coverage level equal to the lowest coverage level you selected
for any other dry pea types; and
(2) A price election percentage equal to:
(i) 100 percent of the price election if you elected additional
coverage; and
(ii) 55 percent of the price election if you elected catastrophic
level of coverage.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
6. Report of Acreage
In addition to the provisions of section 6 of the Basic Provisions,
you must submit a copy of the processor/seed company contract to us on
or before the acreage reporting date if you are insuring contract seed
peas.
7. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the dry pea types in the county for which a premium
rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvesting once maturity is reached as:
(i) Dry peas; or
(ii) Contract seed peas, if the processor/seed company contract is
executed on or before the acreage reporting; and
(3) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Interplanted with another crop;
(ii) Planted into an established grass or legume;
(iii) Planted as a nurse crop; or
(iv) Planted to plow down, graze, harvest as hay, or otherwise not
harvest as a mature dry pea crop.
(b) You will be considered to have a share in the insured crop if,
under the processor/seed company contract, you retain control of
[[Page 292]]
the acreage on which the dry peas are grown, you are at risk of loss
(i.e., if there is a reduction in quantity or quality of your dry pea
production, you will receive less income under the contract), and the
processor/seed company contract is in effect for the entire insurance
period.
(c) In counties for which the actuarial documents provide premium
rates for the Winter Coverage Option (see section 15), coverage is
available for dry peas between the time coverage begins and the spring
final planting date. Coverage under the option is effective only if you
qualify under the terms of the option and you elect the option by the
sales closing date.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage that does not meet the rotation
requirements, if applicable, contained in the Special Provisions; or
(b) Any acreage of the insured crop damaged before the final
planting date, to the extent that producers in the surrounding area
would normally not further care for the crop, must be replanted unless
we agree that it is not practical to replant.
(c) Whenever the Special Provisions designate both fall and spring
final planting dates:
(1) Any fall-planted dry peas that is damaged before the spring
final planting date, to the extent that growers in the area would
normally not further care for the crop, must be replanted to a fall-
planted type of dry peas to maintain insurance based on the fall-planted
type unless we agree that replanting is not practical. If it is not
practical to replant to a fall-planted type of dry peas but it is
practical to replant to a spring-planted type, you must replant to a
spring-planted type to keep your insurance coverage based on the fall-
planted type in force.
(2) Any fall-planted dry pea acreage that is replanted to a spring-
planted type when it was practical to replant the fall-planted type will
be insured as the spring-planted type and the production guarantee,
premium and price election applicable to the spring-planted type will be
used. In this case, the acreage will be considered to be initially
planted to the spring-planted type.
(3) Notwithstanding section 8(d)(1) and (2), if you have elected
coverage under the Winter Coverage Option (if available in the county),
insurance will be in accordance with the option.
(d) Whenever the Special Provisions designate only a spring final
planting date, any acreage of a fall-planted dry pea crop is not insured
unless you request such coverage on or before the spring sales closing
date, and we agree in writing that the acreage has an adequate stand in
the spring to produce the yield used to determine your production
guarantee.
(1) The fall-planted dry pea crop will be insured as a spring-
planted type for the purpose of the production guarantee, premium and
price election.
(2) Insurance will attach to such acreage on the date we determine
an adequate stand exists or on the spring final planting date if we do
not determine adequacy of the stand prior to the spring final planting
date.
(3) Any acreage of such fall-planted dry peas that is damaged after
it is accepted for insurance but before the spring final planting date,
to the extent that growers in the area would normally not further care
for the crop, must be replanted to a spring-planted type of dry pea
unless we agree it is not practical to replant. No replanting payment
will be made.
(4) If fall-planted acreage is not to be insured it must be recorded
on the acreage report as uninsured fall-planted acreage.
9. Insurance Period
9. Insurance Period.
In accordance with the provisions of section 11 of the Basic
Provisions, and subject to the provisions provided by the Winter
Coverage Option (see section 15) if you elect such option, the insurance
period is as follows:
(a) Coverage for fall-planted dry peas not covered by the Winter
Coverage Option will begin on the earlier of April 15 or the date we
agree to accept the acreage for insurance, but not before March 1,
unless otherwise specified on the Special Provisions.
(b) The calendar date for the end of the insurance period for all
insurable types of dry peas in the county is September 30 of the crop
year in which the crop is normally harvested unless otherwise specified
in the Special Provisions.
10. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if due to a cause of
loss contained in section 10(a) through (g) that occurs during the
insurance period.
[[Page 293]]
11. Replanting Payments
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that
limit the amount of a replant payment to the actual cost of replanting,
the amount of any replanting payment will be determined in accordance
with these Crop Provisions;
(2) You must comply with all requirements regarding replanting
payments contained in section 13 of the Basic Provisions (except as
allowed in section 11(a)(1)) and in the Winter Coverage Option (see
section 15), if applicable;
(3) The insured crop must be damaged by an insurable cause of loss
to the extent that the remaining stand will not produce at least 90
percent of the production guarantee for the acreage;
(4) The acreage must have been initially planted to a spring type of
the insured crop in those counties with only a spring final planting
date;
(5) When the Winter Coverage Option is in effect for the acreage,
damage must occur after the fall final planting date in those counties
where both a fall and spring final planting date are designated;
(6) Replanting payments are not available for damaged fall planted
dry pea acreage if you have not elected to cover such acreage under the
Winter Coverage Option; and
(7) The replanted crop must be seeded at a rate sufficient to
achieve a total (undamaged and new seeding) plant population that will
produce at least the yield used to determine your production guarantee.
(b) The maximum amount of the replanting payment per acre will be
the lesser of 20.0 percent of the production guarantee or 200 pounds,
multiplied by your price election, multiplied by your share, unless
otherwise stated in the Special Provisions.
(c) When the crop is replanted using a practice that is uninsurable
for an original planting, the liability on the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
(d) Replanting payments will be calculated using the price election
and production guarantee for the dry pea type that is replanted and
insured. For example, if damaged smooth green and yellow pea acreage is
replanted to lentils, the price election and production guarantee
applicable to lentils will be used to calculate any replanting payment
that may be due. A revised acreage report will be required to reflect
the replanted type. Notwithstanding the previous two sentences, the
following will have a replanting payment based on the guarantee and
price election for the crop type initially planted:
(1) Any damaged fall-planted type of dry peas replanted to a spring-
planted type that retains insurance based on the production guarantee
and price election for the fall-planted type; and
(2) Any acreage replanted at a reduced seeding rate into a partially
damaged stand of the insured crop.
12. Duties in the Event of Damage or Loss
Representative samples are required in accordance with section 14 of
the Basic Provisions.
13. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production that are acceptable to us
for any:
(1) Optional units, we will combine all optional units for which
acceptable records of production were not provided; or
(2) Basic units, we will allocate any commingled production to such
units in proportion to our liability on the harvested acreage for the
units.
(b) In the event of loss or damage to your dry pea crop covered by
this policy, we will settle your claim by:
(1) Multiplying the insured acreage of each dry pea type, if
applicable, excluding contract seed peas, by its respective production
guarantee;
(2) Multiplying each result of section 13(b)(1) by the respective
price election;
(3) Totaling the results of section 13(b)(2);
(4) Multiplying the insured acreage of each contract seed pea
variety by its respective production guarantee;
(5) Multiplying each result of section 13(b)(4) by the applicable
base contract price;
(6) Multiplying each result of section 13(b)(5) by your selected
price election percentage;
(7) Totaling the results of section 13(b)(6);
(8) Totaling the results of section 13(b)(3) and section 13(b)(7);
(9) Multiplying the total production to be counted of each dry pea
type, excluding contract seed peas, if applicable (see section 13(d)),
by the respective price elections;
(10) Totaling the value of all contract seed pea production (see
section 13(c));
(11) Totaling the results of section 13(b)(9) and section 13(b)(10);
(12) Subtracting the result of section 13(b)(11) from the result in
section 12(b)(8); and
(13) Multiplying the result of section 13(b)12 by your share.
For example:
In this example, you have not elected optional units by type. You
have a 100 percent share in 100 acres of spring-planted smooth green dry
edible peas in the unit, with a 70 percent guarantee of 4,000 pounds per
acre and a price election of $0.09 per pound. Your selected price
election percentage is 100 percent. You are only able to harvest 200,000
[[Page 294]]
pounds. Your indemnity would be calculated as follows:
(1) 100 acres x 4,000 pounds = 400,000-pound guarantee;
(2) 400,000-pound guarantee x $0.09 price election = $36,000.00
value of guarantee;
(9) 200,000-pound production to count x $0.09 price election =
$18,000.00 value of production to count;
(12) $36,000.00 value of guarantee - $18,000.00 value of production
to count = $18,000.00 loss; and
(13) $18,000.00 x 100 percent share = $18,000.00 indemnity payment.
You also have a 100 percent share in 100 acres of contract seed peas
in the same unit, with a 65 percent guarantee of 5,000 pounds per acre
and a base contract price of $0.40 per pound. Your selected price
election percentage is 75 percent. You are only able to harvest 450,000
pounds. Your total indemnity for both spring-planted smooth green dry
edible peas and contract seed peas would be calculated as follows:
(1) 100 acres x 4,000 pounds = 400,000-pound guarantee for the
spring-planted smooth green dry edible pea type;
(2) 400,000-pound guarantee x $0.09 price election = $36,000.00
value of guarantee for the spring-planted smooth green dry edible pea
type;
(4) 100 acres x 5,000 pounds = 500,000-pound production to count for
the contract seed pea type;
(5) 500,000-pound guarantee x $0.40 base contract price =
$200,000.00 gross value of guarantee for the contract seed pea type;
(6) $200,000 x .75 price election percentage = $150,000 net value of
guarantee for the contract seed pea type;
(8) $36,000.00 + $150,000.00 = $186,000.00 total value of guarantee;
(9) 200,000-pound production to count x $0.09 price election =
$18,000.00 value of production to count for the spring-planted smooth
green dry edible pea type;
(10) 450,000-pound production to count x $0.30 = $135,000.00 value
of production to count for the contract seed pea type;
(11) $18,000.00 + $135,000.00 = $153,000.00 total value of
production to count;
(12) $186,000.00 - $153,000.00 = $33,000.00 loss; and
(13) $33,000.00 loss x 100 percent share = $33,000.00 indemnity
payment.
(c) The value of contract seed pea production to count for each
variety in the unit will be determined as follows:
(1) For mature production meeting the objective, measurable minimum
quality requirements (e.g., size, germination percentage) contained in
the processor/seed company contract, and for mature production that does
not meet such requirements due to uninsured causes:
(i) Multiplying the local market price or base contract price per
pound, whichever is greater, by the price election percentage you
selected; and
(ii) Multiplying the result by the number of pounds of such
production.
(2) For mature production not meeting the objective, measurable
minimum quality requirements (e.g., size, germination percentage)
contained in the processor/seed company contract, due to insurable
causes, and immature production that is appraised:
(i) Multiplying the highest local market price available for such
dry peas by the price election percentage you selected; and
(ii) Multiplying the result by the number of pounds of such
production.
(d) The total dry pea production to count (in pounds) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production of dry
peas may be adjusted for quality deficiencies in accordance with section
12 (c) or (e), if applicable); and
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if the crop is not harvested; and
(2) All harvested production from the insurable acreage.
[[Page 295]]
(e) Mature dry pea production that does not qualify as contract seed
peas under the policy terms or does not meet the objective, measurable
minimum quality requirements (e.g., size, germination percentage)
contained in the processor/seed company contract, may be adjusted for
quality deficiencies.
(1) Production will be eligible for quality adjustment in accordance
with the following, unless otherwise specified in the Special
Provisions:
(i) Deficiencies in quality, in accordance with the United States
Standards for Whole Dry Peas, Split Peas, and Lentils, result in
production grading U.S. No. 2 or worse because of defects, color,
skinned production (lentils only), odor, material weathering, or
distinctly low quality; or
(ii) Substances or conditions are present that are identified by the
Food and Drug Administration or other public health organizations of the
United States as being injurious to human or animal health.
(2) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a
cause of loss against which insurance is provided under these Crop
Provisions and which occurs within the insurance period;
(ii) The deficiencies, substances, or conditions result in a net
price for the damaged production that is less than the local market
price;
(iii) All determinations of these deficiencies, substances, or
conditions are made using samples of the production obtained by us or by
a disinterested third party approved by us;
(iv) With regard to deficiencies in quality (except test weight,
which may be determined by our loss adjuster), the samples are analyzed
by:
(A) A grader licensed under the United States Agricultural Marketing
Act or the United States Warehouse Act;
(B) A grader licensed under State law and employed by a warehouse
operator who has a storage agreement with the Commodity Credit
Corporation; or
(C) A grader not licensed under State law, but who is employed by a
warehouse operator who has a commodity storage agreement with the
Commodity Credit Corporation and is in compliance with State law
regarding warehouses; and
(v) With regard to substances or conditions injurious to human or
animal health, the samples are analyzed by a laboratory approved by us.
(3) Dry Pea production that is eligible for quality adjustment, as
specified in sections 12(e) (1) and (2), will be reduced as follows:
(i) The highest local market price for the qualifying damaged
production will be determined on the earlier of the date such damaged
production is sold or the date of final inspection for the unit. The
highest local market price for the qualifying damaged production will be
determined in the local area to the extent feasible. We may obtain
prices from any buyer of our choice. If we obtain prices from one or
more buyers located outside your local market area, we will reduce such
prices by the additional costs required to deliver the dry peas to those
buyers. Discounts used to establish the net value of the damaged
production will be limited to those that are usual, customary, and
reasonable.
The value will not be reduced for:
(A) Moisture content;
(B) Damage due to uninsured causes; or
(C) Drying, handling, processing, or any other costs associated with
normal harvesting, handling, and marketing of the dry peas; except, if
the value of the damaged production can be increased by conditioning, we
may reduce the value of the production after it has been conditioned by
the cost of conditioning but not lower than the value of the production
before conditioning;
(ii) The value per pound of the damaged or conditioned production
will be divided by the local market price to determine the quality
adjustment factor;
(iii) The number of pounds of the damaged or conditioned production
will then be multiplied by the quality adjustment factor to determine
the production count to be included in section 13(d); and
(iv) Any production harvested from plants growing in the insured
crop may be counted as production of the insured crop on a weight basis.
14. Prevented Planting
Your prevented planting coverage will be 60 percent of your
production guarantee for timely planted acreage. If you have additional
levels of coverage as specified in 7 CFR part 400, subpart T, and pay an
additional premium, you may increase your prevented planting coverage to
a level specified in the actuarial documents.
15. Winter Coverage Option
(a) In the event of a conflict between this section and sections 1
through 14 of these Crop Provisions, this section will control.
(b) You must have purchased additional coverage under the Dry Pea
Crop Provisions in order to select this option.
(c) In return for payment of the additional premium designated in
the actuarial documents, this option is available in counties for which
the actuarial documents provide premium rates for the Winter Coverage
Option.
(d) This option is available only in counties for which the Special
Provisions designate both a fall final planting date and a spring final
planting date.
[[Page 296]]
(e) You must select this option on your application for insurance,
or on a form approved by us, on or before the sales closing date for the
initial year in which you wish to insure dry peas under this option.
(1) Failure to do so means you have rejected this coverage for the
dry pea crop planted in the fall and this option is void.
(2) This option will continue in effect until canceled or coverage
under the Dry Pea Crop Provisions is canceled or terminated.
(3) This option may be canceled by you or us for any succeeding crop
year by giving written notice to the other party on or before the
cancellation date contained in section 15(g) preceding the crop year for
which the cancellation of this option is to be effective.
(4) You may change your coverage level or percentage of price
election for dry pea types until the spring sales closing date if you
have selected this option, but do not have any insured fall planted
acreage or your fall planted acreage is not eligible for this option.
(f) Coverage under this option begins on the later of the date we
accept your application for coverage or on the fall final planting date
designated in the Special Provisions. Coverage ends on the spring final
planting date designated in the Special Provisions.
(g) If you elect this option for dry peas initially planted in the
fall, the following dates will be applicable to all your fall-planted
and spring-planted dry peas in the county:
(1) Contract change date is June 30 preceding the cancellation date;
(2) Cancellation date is September 30; and
(3) Termination date is November 30. For a policy with amounts due,
when the sales closing date is prior to the previous crop year
termination date, such policies will terminate for the current crop year
even if insurance attached prior to the termination date. Such
termination will be considered effective as of the sales closing date
and no insurance will be considered to have attached for the crop year
and no indemnity, prevented planting or replant payment will be owed.
(h) All notices of damage must be provided to us not later than 15
days after the spring final planting date designated in the Special
Provisions.
(i) All insurable acreage of each fall planted dry pea type covered
under this option must be insured.
(j) The amount of any indemnity paid under the terms of this option
will be subject to any reduction specified in the Basic Provisions for
multiple crop benefits in the same crop year.
(k) Whenever any acreage of dry peas planted in the fall is damaged
during the insurance period and at least 20 acres or 20 percent of the
insured planted acreage in the unit, whichever is less, does not have an
adequate stand to produce at least 90 percent of the production
guarantee for the acreage, you may, at your option, take one of the
following actions:
(1) Continue to care for the damaged dry peas. By doing so, coverage
will continue under the terms of the Basic Provisions, these Crop
Provisions and this option;
(2) Replant the acreage to an appropriate type of insured dry peas,
if it is practical, and receive a replanting payment in accordance with
the terms of section 11. By doing so, coverage will continue under the
terms of the Basic Provisions, these Crop Provisions and this option,
and the production guarantee for the dry pea type planted in the fall
will remain in effect; or
(3) Destroy the remaining crop on such acreage:
(i) By destroying the remaining crop, you agree to accept an
appraised amount of production determined in accordance with section
13(d)(1) of these Crop Provisions to count against the unit production
guarantee. This amount will be considered production to count in
determining any final indemnity on the unit and will be used to settle
your claim as described in section 13.
(ii) You may use such acreage for any purpose, including planting
and separately insuring any other crop if such insurance is available.
(iii) If you elect to plant and elect to insure spring-planted dry
pea acreage of the same dry pea type (you must elect whether or not you
want insurance on the spring-planted acreage of the same dry pea type at
the time we release the fall-planted acreage), you must pay additional
premium for insurance. Such acreage will be insured in accordance with
the policy provisions that are applicable to acreage that is initially
planted in the spring to the same dry pea type, and you must:
(A) Plant the spring-planted acreage in a manner which results in a
clear and discernable break in the planting pattern at the boundary
between it and any remaining acreage of the fall-planted dry pea
acreage; and
(B) Store or market the production in a manner which permits us to
verify the amount of spring-planted production separately from any fall-
planted production. In the event you are unable to provide records of
production that are acceptable to us, the spring-planted acreage will be
considered to be a part of the original fall-planted unit.
[62 FR 65744, Dec. 16, 1997, as amended at 63 FR 36157, July 2, 1998; 67
FR 55691, Aug. 30, 2002; 73 FR 51582, Sept. 4, 2008; 75 FR 15888, Mar.
30, 2010]
[[Page 297]]
Sec. 457.141 Rice crop insurance provisions.
The rice crop insurance provisions for the 2011 and succeeding crop
years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Rice Crop Provisions
1. Definitions
Flood irrigation. An irrigated practice commonly used for rice
production whereby the planted acreage is intentionally covered with
water that is maintained at a uniform and shallow depth throughout the
growing season.
Harvest. Combining or threshing the rice for grain. A crop that is
swathed prior to combining is not considered harvested.
Local market price. The cash price per pound for the U.S. No. 3
grade of rough rice offered by buyers in the area in which you normally
market the rice. Factors not associated with grading under the United
States Standards for Rice including, but not limited to, protein and oil
content or milling quality will not be considered.
Planted acreage. In addition to the definition in section 1 of the
Basic Provisions, land on which there is uniform placement of an
adequate amount of rice seed into a prepared seedbed by one of the
following methods (Acreage seeded in any other manner will not be
insurable unless otherwise provided by the Special Provisions or by
written agreement):
(a) Drill seeding--Using a grain drill to incorporate the seed to a
proper soil depth;
(b) Broadcast seeding--Distributing seed evenly onto the surface of
an un-flooded seedbed followed by either timely mechanical incorporation
of the seed to a proper soil depth in the seedbed or flushing the
seedbed with water; or
(c) Broadcast seeding into a controlled flood--Distributing the rice
seed onto a prepared seedbed that has been intentionally covered to a
proper depth by water. The water must be free of movement and be
completely contained on the acreage by properly constructed levees and
gates.
Saline water. Water that contains a concentration of salt sufficient
to cause damage to the insured crop.
Second crop rice. The regrowth of a stand of rice following harvest
of the initially insured rice crop that can be harvested in the same
crop year.
Swathed. Severance of the stem and grain head from the ground
without removal of the rice kernels from the plant and placing in a
windrow.
Total milling yield. Rice production consisting of heads, second
heads, screenings, and brewer's rice as defined by the official United
States Standards for Rice.
2. Unit Division
Provisions in the Basic Provisions that allow optional units by
irrigated and non-irrigated practices are not applicable.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions, you must elect to insure your rice with either revenue
protection or yield protection by the sales closing date.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
------------------------------------------------------------------------
Cancellation and termination
State and county date
------------------------------------------------------------------------
Jackson, Victoria, Goliad, Bee, Live Oak, January 31.
McMullen, La Salle, and Dimmit Counties,
Texas; and all Texas counties south
thereof.
Florida.................................. February 15.
All other Texas counties and all other February 28.
states.
------------------------------------------------------------------------
6. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the rice in the county for which a premium rate is
provided by the actuarial documents or by written agreement:
(a) In which you have a share;
(b) That is planted for harvest as grain;
(c) That is flood irrigated; and
(d) That is not wild rice.
7. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage planted to rice:
(1) The preceding crop year unless allowed by the Special
Provisions; or
(2) That does not meet the rotation requirements shown in the
Special Provisions; and
[[Page 298]]
(b) Any acreage of the insured crop damaged before the final
planting date, to the extent that producers in the area would normally
not further care for the crop, must be replanted unless we agree that it
is not practical to replant.
8. Insurance Period
In accordance with the provisions of section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is
October 31 immediately following planting.
9. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions (except drought);
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption;
(8) Failure of the irrigation water supply if caused by an insured
cause of loss specified in sections 9(a)(1) through (7), drought, or the
intrusion of saline water; or
(9) For revenue protection, a change in the harvest price from the
projected price, unless FCIC can prove the price change was the direct
result of an uninsured cause of loss specified in section 12(a) of the
Basic Provisions.
(b) In addition to the causes of loss not insured against in section
12 of the Basic Provisions, we will not insure against any loss of
production due to the application of saline water, except as specified
in section 9(a)(8) of these crop provisions.
10. Replanting Payment
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that
limit the amount of a replant payment to the actual cost of replanting,
the amount of any replanting payment will be determined in accordance
with these Crop Provisions;
(2) Except as specified in section 10(a)(1), you must comply with
all requirements regarding replanting payments contained in section 13
of the Basic Provisions;
(3) The insured crop must be damaged by an insurable cause of loss
to the extent that the remaining stand will not produce at least 90
percent of the production guarantee for the acreage; and
(4) The replanted crop must be seeded at a rate that is normal for
initially planted rice (if new seed is planted at a reduced seeding rate
into a partially damaged stand of rice, the acreage will not be eligible
for a replanting payment).
(b) Unless otherwise specified in the Special Provisions, the amount
of the replanting payment per acre will be the lesser of 20 percent of
the production guarantee or 400 pounds, multiplied by your projected
price, multiplied by your share.
(c) When the crop is replanted using a practice that is uninsurable
for an original planting, the liability on the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
11. Duties in the Event of Damage or Loss
Representative samples are required in accordance with section 14 of
the Basic Provisions.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production that are acceptable to us
for any:
(1) Optional unit, we will combine all optional units for which
acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such
units in proportion to our liability on the harvested acreage for each
unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the number of insured acres by your respective:
(i) Yield protection guarantee (per acre) if you elected yield
protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue
protection;
(2) Totaling the results of section 12(b)(1)(i) or 12(b)(1)(ii),
whichever is applicable;
(3) Multiplying the production to count by your:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 12(b)(3)(i) or 12(b)(3)(ii),
whichever is applicable;
(5) Subtracting the result of section 12(b)(4) from the result of
section 12(b)(2); and
(6) Multiplying the result of section 12(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of rice in the unit with a
production guarantee (per acre) of 3,750 pounds, your projected price is
$.0750, your harvest price is $.0700, and your production to count is
150,000 pounds.
If you elected yield protection:
[[Page 299]]
(1) 50 acres x (3,750 pound production guarantee x $.0750 projected
price) = $14,062.50 value of the production guarantee
(3) 150,000 pound production to count x $.0750 projected price =
$11,250.00 value of the production to count
(5) $14,062.50 - $11,250.00 = $2,812.50
(6) $2,812.50 x 1.000 share = $2,813.00 indemnity; or
If you elected revenue protection:
(1) 50 acres x (3,750 pound production guarantee x $.0750 projected
price) = $14,062.50 revenue protection guarantee
(3) 150,000 pound production to count x $.0700 harvest price =
$10,500.00 value of the production to count
(5) $14,062.50 - $10,500.00 = $3,562.50
(6) $3,562.50 x 1.000 share = $3,563.00 indemnity.
(c) The total production to count (in pounds) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee and
for revenue protection, not less than the amount of production that when
multiplied by the harvest price equals the revenue protection guarantee
(per acre) for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies and excess moisture in accordance with
section 12(d));
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage, including
any production from a second rice crop harvested in the same crop year.
(d) Mature rough rice may be adjusted for excess moisture and
quality deficiencies. If moisture adjustment is applicable, it will be
made prior to any adjustment for quality.
(1) Production will be reduced by 0.12 percent for each 0.1
percentage point of moisture in excess of 12 percent. We may obtain
samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality, in accordance with the Official United
States Standards for Rice, result in rice not meeting the grade
requirements for U.S. No. 3 (grades U.S. No. 4 or worse) because of red
rice, chalky kernels or damaged kernels;
(ii) The rice has a total milling yield of less than 68 pounds per
hundredweight;
(iii) The whole kernel weight is less than 55 pounds per
hundredweight of milled rice for medium and short grain varieties;
(iv) The whole kernel weight is less than 48 pounds per
hundredweight of milled rice for long grain varieties; or
(v) Substances or conditions are present that are identified by the
Food and Drug Administration or other public health organizations of the
United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions specified in section
12(d)(2) resulted from a cause of loss against which insurance is
provided under these crop provisions and which occurs within the
insurance period;
(ii) The deficiencies, substances, or conditions specified in
section 12(d)(2) result in a net price for the damaged production that
is less than the local market price;
(iii) All determinations of these deficiencies, substances, or
conditions specified in section 12(d)(2) are made using samples of the
production obtained by us or by a disinterested third party approved by
us;
(iv) With regard to deficiencies in quality (except test weight,
which may be determined by our loss adjuster), the samples are analyzed
by:
(A) A grader licensed under the United States Agricultural Marketing
Act or the United States Warehouse Act;
(B) A grader licensed under State law and employed by a warehouse
operator who has a storage agreement with the Commodity Credit
Corporation; or
[[Page 300]]
(C) A grader not licensed under State law, but who is employed by a
warehouse operator who has a commodity storage agreement with the
Commodity Credit Corporation and is in compliance with State law
regarding warehouses; and
(v) With regard to substances or conditions injurious to human or
animal health, the samples are analyzed by a laboratory approved by us.
(4) Rice production that is eligible for quality adjustment, as
specified in sections 12(d) (2) and (3), will be reduced as follows:
(i) In accordance with quality adjustment factors contained in the
Special Provisions; or
(ii) If quality adjustment factors are not contained in the Special
Provisions, as follows:
(A) The market price of the qualifying damaged production and the
local market price will be determined on the earlier of the date such
quality adjusted production is sold or the date of final inspection for
the unit. The price for the qualifying damaged production will be the
market price for the local area to the extent feasible. Discounts used
to establish the net price of the damaged production will be limited to
those that are usual, customary, and reasonable. The price will not be
reduced for:
(1) Moisture content;
(2) Damage due to uninsured causes; or
(3) Drying, handling, processing, or any other costs associated with
normal harvesting, handling, and marketing of the rice; except, if the
price of the damaged production can be increased by conditioning, we may
reduce the price of the production after it has been conditioned by the
cost of conditioning but not lower than the value of the production
before conditioning,
(We may obtain prices from any buyer of our choice. If we obtain
prices from one or more buyers located outside your local market area,
we will reduce such prices by the additional costs required to deliver
the rice to those buyers.);
(B) The value of the damaged or conditioned production will be
divided by the local market price to determine the quality adjustment
factor; and
(C) The number of pounds remaining after any reduction due to
excessive moisture (the moisture-adjusted gross pounds (if appropriate))
of the damaged or conditioned production will then be multiplied by the
quality adjustment factor to determine the net production to count.
(e) Any production harvested from plants growing in the insured crop
may be counted as production of the insured crop on a weight basis.
13. Prevented Planting
Your prevented planting coverage will be 45 percent of your
production guarantee for timely planted acreage. If you have additional
coverage and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[62 FR 28310, May 23, 1997, as amended at 62 FR 65174, Dec. 10, 1997; 65
FR 56774, Sept. 20, 2000; 67 FR 55691, Aug. 30, 2002; 75 FR 15888,
15889, Mar. 30, 2010]
Sec. 457.142 Northern potato crop insurance provisions.
The Northern Potato Crop Insurance Provisions for the 2008 and
succeeding crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Northern Potato Crop Provisions
These provisions will be applicable in: Alaska; Humboldt, Modoc, and
Siskiyou Counties, California; Colorado; Connecticut; Idaho; Indiana;
Iowa; Kansas; Maine; Massachusetts; Michigan; Minnesota; Montana;
Nebraska; Nevada; San Juan County, New Mexico; New York; North Dakota;
Ohio; Oregon; Pennsylvania; Rhode Island; South Dakota; Utah;
Washington; Wisconsin; and Wyoming; and any other states or counties if
allowed by the Special Provisions.
1. Definitions
Buyer. A business entity in the business of buying or processing
potatoes, that possesses all the licenses and permits required by the
state in which it operates, and has the facilities to accept the
potatoes purchased.
Certified seed. Potatoes that were entered into the potato certified
seed program and that meet all requirements for production to be used to
produce a seed crop for the next crop year or a potato crop for harvest
for commercial uses in the next crop year.
Discard. Disposal of production by you, or a person acting for you,
without receiving any value for it.
Disposed. Any disposition of the crop including but not limited to
sale or discard.
Grade inspection. An inspection in which samples of production are
obtained by us, or a party approved by us, prior to the sale, storage,
or disposal of any lot of potatoes, or any portion of a lot and the
potatoes are evaluated and quality (grade) determinations are made by
us, a laboratory approved by us, or a potato grader licensed or
certified by the applicable State or the United States
[[Page 301]]
Department of Agriculture, in accordance with the United States
Standards for Grades of Potatoes. The United States standards used to
determine the quality (grade) deficiencies will be: For potatoes
produced for chipping, the United States Standards for Grades of
Potatoes for Chipping; for potatoes produced for processing, the United
States Standards for Grades of Potatoes for Processing; for potatoes
produced for seed, the United States Standards for Grades of Seed
Potatoes; and for all other potatoes, the United States Standards for
Grades of Potatoes. The quantity and number of samples required will be
determined in accordance with procedure issued by FCIC.
Harvest. Lifting potatoes from within the soil to the soil surface.
Hundredweight. One hundred (100) pounds avoirdupois.
Local market. The area in which the insured potatoes are normally
sold.
Lot. A quantity of production that can be separated from other
quantities of production by grade characteristics, load, location or
other distinctive features.
Potato certified seed program. The state program administered by a
public agency responsible for the seed certification process within the
state in which the seed is produced.
Tuber rot. Any soft, mushy, or leaky condition of potato tissue
(soft rot or wet breakdown as defined in the United States Standards for
Grades of Potatoes), including, but not limited to, breakdown caused by
Southern Bacterial Wilt, Ring Rot, or Late Blight.
2. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3 of the Basic
Provisions, you may select only one price election for all the potatoes
in the county insured under this policy unless the Special Provisions
provide different price elections by type. If the Special Provisions
provide for different price elections by type, you may select one price
election for each potato type designated in the Special Provisions. The
price elections you choose for each type must have the same percentage
relationship to the maximum price election offered by us for each type.
For example, if you choose 100 percent of the maximum price election for
one type, you must also choose 100 percent of the maximum price election
for all other types.
(b) If the production from any acreage of the insured crop is not
harvested, the price used to determine your indemnity will be 90 percent
of your price election. This requirement is not applicable to the
certified seed endorsement price election.
(c) The price election for unharvested acreage will apply to any
acreage of potatoes damaged to the extent that similarly situated
producers in the area would not normally care for the potatoes even if
you choose to continue to care for or harvest them. Potatoes that are
lifted to the soil surface and not removed from the field will also
receive the price election for unharvested acreage.
3. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
4. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
5. Annual Premium
In lieu of the premium computation method contained in section 7 of
the Basic Provisions, the annual premium amount (y) is computed by
multiplying (a) the production guarantee by (b) the price election for
harvested acreage, by (c) the premium rate, by (d) the insured acreage,
by (e) your share at the time of planting, and by (f) any applicable
premium adjustment factors contained in the actuarial documents
(axbxcxdxexf=y).
6. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the potatoes in the county for which a premium rate
is provided by the actuarial documents:
(a) In which you have a share;
(b) Planted with certified seed (unless otherwise permitted by the
Special Provisions);
(c) Planted for harvest as certified seed stock, or for human
consumption, (unless specified otherwise in the Special Provisions);
(d) That are not (unless allowed by the Special Provision or by
written agreement):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
7. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions,
we will not insure any acreage that:
(a) Does not meet the rotation requirements contained in the Special
Provisions for the crop; or
(b) Is damaged before the final planting date to the extent that
similarly situated producers in the area would normally not further care
for the crop, unless it is replanted or we agree that it is not
practical to replant.
8. Insurance Period
In accordance with the provisions of section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is
[[Page 302]]
the date immediately following planting as follows (exceptions, if any,
for specific counties, varieties or types are contained in the Special
Provisions):
(a) October 1, in Alaska;
(b) October 10 in Nebraska and Wyoming;
(c) October 15 in Colorado; Indiana; Iowa; Michigan; Minnesota;
Montana; Nevada; North Dakota; South Dakota; Utah; and Wisconsin;
(d) October 20 in Maine;
(e) October 25 in Kansas; and
(f) October 31 in Humboldt, Modoc, and Siskiyou Counties,
California; Connecticut; Idaho; Massachusetts; San Juan County, New
Mexico; New York; Ohio; Oregon; Pennsylvania; Rhode Island; and
Washington.
9. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but only if sufficient and proper pest control measures
are used;
(4) Plant disease, but only if sufficient and proper disease control
measures are used;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period (see section 9(a)(1)
through (7)).
(b) In addition to the causes of loss not insured against as
contained in section 12 of the Basic Provisions, we will not insure
against any loss of production due to:
(1) Damage that occurs or becomes evident after the end of the
insurance period, including, but not limited to, damage that occurs or
becomes evident in storage; or
(2) Causes, such as freeze after certain dates, as limited by the
Special Provisions.
10. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 of the Basic
Provisions, you must leave representative samples at least 10 feet wide
and extending the entire length of each field in the unit if you are
going to destroy any acreage of the insured crop that will not be
harvested.
(b) We must be given the opportunity to perform a grade inspection
on the production from any unit for which you have given notice of
damage.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which acceptable production records were not provided; and
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee (If there is unharvested acreage in the unit, the harvested
and unharvested acreage will be determined separately);
(2) Multiplying each result in section 11(b)(1) by the respective
price election (The price election may be limited as specified in
section 3.);
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to be counted of each type, if
applicable (see section 11(d)), by the respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the results of section 11(b)(5) from the result in
section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share.
For example:
You have a 100 percent share in 100 harvested acres of potatoes in
the unit, with a guarantee of 150 hundredweight per acre and a price
election of $4.00 per hundredweight. You are only able to harvest 10,000
hundredweight. Your indemnity would be calculated as follows:
(1) 100 acres x 150 hundredweight = 15,000 hundredweight guarantee;
(2) 15,000 hundredweight x $4.00 price election = $60,000.00 value
of guarantee;
(4) 10,000 hundredweight x $4.00 price election = $40,000.00 value
of production to count;
(6) $60,000.00 - $40,000.00 = $20,000.00 loss; and
(7) $20,000.00 x 100 percent = $20,000.00 indemnity payment.
You also have a 100 percent share in 100 unharvested acres of
potatoes in the same unit, with a guarantee of 150 hundredweight per
acre and a price election of $3.60 per hundredweight. (The price
election for unharvested acreage is 90.0 percent of your elected price
election ($4.00 x 0.90 = $3.60.)) This unharvested acreage was appraised
at 35 hundredweight per acre for a total of 3500 hundredweight as
production to count. Your total indemnity for the harvested and
unharvested acreage would be calculated as follows:
(1) 100 acres x 150 hundredweight = 15,000 hundredweight guarantee
for the harvested acreage, and
100 acres x 150 hundredweight = 15,000 hundredweight guarantee for
the unharvested acreage;
[[Page 303]]
(2) 15,000 hundredweight guarantee x $4.00 price election =
$60,000.00 value of guarantee for the harvested acreage, and
15,000 hundredweight guarantee x $3.60 price election = $54,000.00
value of guarantee for the unharvested acreage;
(3) $60,000.00 + $54,000.00 = $114,000.00 total value of guarantee;
(4) 10,000 hundredweight x $4.00 price election = $40,000.00 value
of production to count for the harvested acreage, and 3500 hundredweight
x $3.60 = $12,600.00 value of production to count for the unharvested
acreage;
(5) $40,000.00 + $12,600.00 = $52,600.00 total value of production
to count;
(6) $114,000.00 - $52,600.00 = $61,400.00 loss; and
(7) $61,400.00 loss x 100 percent = $61,400.00 indemnity payment.
(c) The extent of any quality loss must be determined based on
samples obtained no later than the time the potatoes are placed in
storage, if the production is stored prior to sale, or the date they are
delivered to a buyer, wholesaler, packer, broker, or other handler if
production is not stored.
(d) The total production to count (in hundredweight) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes;
(D) From which any production is disposed of without a grade
inspection; or
(E) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Production lost due to harvest prior to full maturity.
Production to count from such acreage will be determined by increasing
the amount of harvested production by 2 percent per day for each day the
potatoes were harvested prior to the date the potatoes would have
reached full maturity. The date the potatoes would have reached full
maturity will be considered to be 45 days prior to the calendar date for
the end of the insurance period, unless otherwise specified in the
Special Provisions. This adjustment will not be made if the potatoes are
damaged by an insurable cause of loss, and leaving the crop in the field
would either reduce production or decrease quality;
(iv) Unharvested production, including unharvested production on
insured acreage you intend to put to another use or abandon, or acreage
damaged by insurable causes and for which you cease to provide further
care, if you and we agree on the appraised amount of production. Upon
such agreement, the insurance period for that acreage will end when you
put the acreage to another use or cease providing care for the crop.
This unharvested production may be adjusted in accordance with sections
11(e), (f), and (g); and the value of all unharvested production will be
calculated using the reduced price election determined in section 2(b).
If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The price used to determine the
amount of any indemnity will be limited as specified in section 2 even
if the representative samples are harvested. The amount of production to
count for such acreage will be based on the harvested production or
appraisals from the samples at the time harvest should have occurred. If
you do not leave the required samples intact, or fail to provide
sufficient care for the samples, our appraisal made prior to giving you
consent to put the acreage to another use will be used to determine the
amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage (the amount
of production prior to the sorting or discarding of any production).
(e) Potato production is eligible for quality adjustment if:
(1) The potatoes have freeze damage or tuber rot that is evident at,
or prior to, the end of the insurance period; and
(2) A grade inspection is completed no later than 21 days after the
end of the insurance period (if the Northern Potato Storage Coverage
Endorsement is applicable, samples must be obtained within 60 days after
the end of the insurance period and quality (grade) determinations must
be completed with 21 days of sampling); and
(3) Prior to any grade inspection, you must notify us of the
intended use of the potatoes so the appropriate United States standards
will be applied (We may request previous sales records to verify your
claimed intended use or base the intended use on the type of potato
grown if such potatoes are not usually grown for the intended use you
reported).
(f) Potato production to count that is eligible for quality
adjustment, as specified in section 11(e), with 5 percent damage or less
(by weight) will be adjusted 0.1 percent for each 0.1 percent of damage
through 5.0 percent.
(g) Potato production to count that is eligible for quality
adjustment, as specified in
[[Page 304]]
section 11(e), with 5.1 percent damage or more (by weight) will be
determined as follows:
(1) If a price is agreed upon between you and a buyer within 21 days
(60 days if the Northern Potato Storage Coverage endorsement is
applicable), after the end of the insurance period, or the production is
delivered to a buyer within 21 days (60 days if the Northern Potato
Storage Coverage Endorsement is applicable), after the end of the
insurance period, the amount of production will be determined by:
(i) Dividing the price per hundredweight received or that will be
received by the highest price election designated in the Special
Provisions or addendum thereto for the insured potato type (if the
production is sold for a price lower than the value appropriate to and
representative of the local market, we will determine the value of the
production based on the price you could have received in the local
market); and
(ii) Multiplying the result (not to exceed 1.0) by the number of
hundredweight of sold or to be sold production (We may verify this after
the production has actually been sold); or
(2) If a price is not agreed upon between you and a buyer and the
production is not delivered within 21 days (60 days if the Northern
Storage Coverage Endorsement is applicable) after the end of the
insurance period, and that remain in storage 22 or more days (61 or more
days if the Northern Potato Storage Coverage Endorsement is applicable),
after the end of the insurance period, the amount of production will be
the greater of:
(i) The amount determined by:
(A) Dividing the price per hundredweight that is received, or will
be received after the end of the applicable insurance period, by the
highest price election designated in the Special Provisions or addendum
thereto for the insured potato type (if the production is sold for a
price lower than the value appropriate to and representative of the
local market, we will determine the value of the production based on the
price you could have received in the local market); and
(B) Multiplying the result of section 11(g)(2)(i)(A) (not to exceed
1.0) by the number of hundredweight of sold or to be sold production (We
may verify this after the production has actually been sold); or
(ii) The amount of production determined by:
(A) Reducing any harvested or appraised production:
(1) By 0.1 percent for each 0.1 percent damage through 5.0 percent;
(2) By 0.5 percent for each 0.1 percent of damage from 5.1 percent
through 6.0 percent;
(3) By 1.0 percent for each 0.1 percent of damage from 6.1 through
13.5 percent; or
(B) Including 15 percent of the production when damage is in excess
of 13.5 percent.
(iii) For any production discarded:
(A) Within 21 days (60 days if the Northern Potato Storage Coverage
Endorsement is applicable), after the end of the insurance period, the
amount of production to count will be:
(1) Zero if we determine the production could not have been sold; or
(2) Determined in accordance with section 11(g)(2)(ii) if we
determine the production could have been sold; or
(B) Later than 21 days (60 days if the Northern Potato Storage
Coverage Endorsement is applicable), after the end of the insurance
period, the amount of production to count will be adjusted in accordance
with section 11(g)(2)(ii).
12. Prevented Planting
Your prevented planting coverage will be 25 percent of your
production guarantee for timely planted acreage. If you have limited or
additional coverage, as specified in 7 CFR part 400, subpart T, and pay
an additional premium, you may increase your prevented planting coverage
to a level specified in the actuarial documents.
[62 FR 65331, Dec. 12, 1997, as amended at 72 FR 61282, Oct. 30, 2007]
Sec. 457.143 Northern potato crop insurance--quality endorsement.
The Northern Potato Crop Insurance Quality Endorsement Provisions
for the 2008 and succeeding crop years are as follows:
FCIC policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Northern Potato Crop Insurance Quality Endorsement
1. Definitions
Percentage factor. The historical average percentage of potatoes
grading U.S. No. 2 or better, by type, determined from your records. If
at least 4 continuous years of records are available, the percentage
factor will be the simple average of the available records not to exceed
10 years. If less than 4 years of records are available, the percentage
factor will be determined based on a combination of your records and the
percentage factor contained in the Special Provisions so that such a
combination would be
[[Page 305]]
the functional equivalent of 4 years of records.
2. In return for payment of the additional premium designated in the
actuarial documents, this endorsement is attached to and made part of
your Northern Potato Crop Provisions subject to the terms and conditions
described herein. In the event of a conflict between the Northern Potato
Crop Provisions and this endorsement, this endorsement will control.
3. You must elect this endorsement on or before the sales closing
date for the initial crop year in which you wish to insure your potatoes
under this endorsement. This endorsement will continue in effect until
canceled. It may be canceled by either you or us for any succeeding crop
year by giving written notice to the other party on or before the
cancellation date.
4. All acreage of potatoes insured under the Northern Potato Crop
Provisions will be insured under this endorsement except:
(a) Any acreage specifically excluded by the actuarial documents;
and
(b) Any acreage grown for seed.
5. We will adjust the production to count determined in accordance
with section 15 of the Basic Provisions and section 11 of the Northern
Potato Crop Provisions for potatoes that do not meet U.S. No. 2 grade
requirements from unharvested acreage or harvested acreage that is
stored or is marketed after a grade inspection due to:
(a) Internal defects as long as the number of potatoes with such
defects are in excess of the tolerances allowed for the U.S. No. 2 grade
potatoes on a lot basis and are not separable from undamaged production
using methods used by the packers or processors to whom you normally
deliver your potato production as follows:
(1) If a price is agreed upon between you and a buyer within 21 days
(60 days if the Northern Potato Storage Coverage Endorsement is
applicable) after the end of the insurance period, or the production is
delivered to a buyer within 21 days (60 days if the Northern Potato
Storage Coverage Endorsement is applicable) after the end of the
insurance period, the amount of production will be determined by
(adjustment under section 5(a)(1) or 5(a)(2)(i) will not be performed if
it already has been performed under the terms of section 11(g) of the
Northern Potato Crop Provisions):
(i) Dividing the price received or that will be received per
hundredweight by the highest price election designated in the Special
Provisions or addendum thereto for the insured potato type (if the
production is sold for a price lower than the value appropriate to and
representative of the local market, we will determine the value of the
production based on the price you could have received in the local
market); and
(ii) Multiplying the result (not to exceed 1.0) by the number of
hundredweight of sold or to be sold production (We may verify this after
the production has actually been sold); or
(2) If a price is not agreed upon between you and a buyer and the
production is not delivered within 21 days (60 days if the Northern
Potato Storage Coverage Endorsement is applicable) after the end of the
insurance period, and the potatoes remain in storage 22 or more days (61
or more days if the Northern Potato Storage Coverage Endorsement is
applicable), after the end of the insurance period, the amount of
production will be the greater of:
(i) The amount of production determined by:
(A) Dividing the price per hundredweight that is received, or will
be received after the end of the applicable insurance period, by the
highest price election designated in the Special Provisions or addendum
thereto for the insured potato type (if the production is sold for a
price lower than the value appropriate to and representative of the
local market, we will determine the value of the production based on the
price you could have received in the local market); and
(B) Multiplying the result of section 5(a)(2)(i)(A) (not to exceed
1.0) by the number of hundredweight of sold or to be sold production (We
may verify this after the production has actually been sold); or
(ii) The amount of production determined as follows:
(A) The combined weight of sampled potatoes grading U.S. No. 2 or
better (the amount of potatoes grading U.S. No. 2 will be based on a
grade inspection completed no later than 21 days after the end of the
insurance period (if the Northern Potato Storage Coverage Endorsement is
applicable), samples must be obtained within 60 days after the end of
the insurance period and a grade inspection completed within 21 days of
sampling) and are damaged by freeze or tuber rot will be divided by the
total sample weight;
(B) The percentage determined in section 5(a)(2)(ii)(A) will be
divided by the applicable percentage factor; and
(C) The result of section 5(a)(2)(ii)(B) will be multiplied by the
amount of production to count determined in accordance with section 15
of the Basic Provisions and section 11 of the Northern Potato Crop
Provisions.
(b) Factors other than those specified in section 5(a), in
accordance with section 5(a)(2)(ii).
6. For any production that qualifies for adjustment in accordance
with section 5(a) and that is discarded:
(a) Within 21 days (60 days if the Northern Potato Storage Coverage
Endorsement is applicable), after the end of the insurance period, the
amount of production to count will be:
[[Page 306]]
(1) Zero if we determine the production could not have been sold; or
(2) Determined in accordance with section 5(a)(2)(ii) if we
determine the production could have been sold; or
(b) Later than 21 days (60 days if the Northern Potato Storage
Coverage Endorsement is applicable), after the end of the insurance
period, the amount of production to count will be adjusted in accordance
with section 5(a)(2)(ii).
7. Potatoes harvested or appraised prior to full maturity that do
not grade U.S. No. 2 due solely to size will be considered to have met
U.S. No. 2 standards unless the potatoes are damaged by an insurable
cause of loss and leaving the crop in the field would either reduce
production or decrease quality.
8. Production to count for potatoes destroyed, stored or marketed
without a grade inspection will be 100 percent of the gross weight of
such potatoes.
9. All determinations must be based upon a grade inspection.
10. The actuarial documents may provide ``U.S. No. 1 grade'' in
place of ``U.S. No. 2 grade'' as used in this endorsement.
(a) If both U.S. No.1 and U.S. No. 2 grades are available in the
actuarial documents, you may elect U.S. No. 1 or 2 grade by potato type
or group, if separate types or groups are specified in the Special
Provisions.
(b) If both fresh and processing types are specified in the
actuarial documents, you cannot elect the fresh type for any potatoes
grown for processing or chipping.
[62 FR 65335, Dec. 12, 1997, as amended at 72 FR 61283, Oct. 30, 2007]
Sec. 457.144 Northern potato crop insurance--processing quality
endorsement.
The Northern Potato Crop Insurance Processing Quality Endorsement
Provisions for the 2008 and succeeding crop years are as follows:
1. Definitions
Broker. Any business enterprise regularly engaged in the buying and
selling of processing potatoes, that possesses all licenses and permits
as required by the state in which it operates, and when required, has
the necessary facilities or the contractual access to such facilities,
with enough equipment to accept and transfer processing potatoes to the
broker within a reasonable amount of time after harvest or the typical
storage period.
Percentage factor. The term as defined in the Northern Potato
Quality Endorsement.
Processor. Any business enterprise regularly engaged in processing
potatoes for human consumption, that possesses all licenses and permits
for processing potatoes required by the state in which it operates, and
that possesses facilities, or has contractual access to such facilities,
with enough equipment to accept and process processing potatoes grown
under a processing contract within a reasonable amount of time after
harvest or the typical storage period.
Processor contract. A written agreement between the producer and
processor, or between a producer and a broker, containing at a minimum:
(a) The producer's commitment to plant and grow processing potatoes,
and to deliver the potato production to the processor or broker;
(b) The processor's or broker's commitment to purchase all the
production stated in the processing contract; and
(c) A price or pricing mechanism to determine the value of delivered
production.
2. To be eligible for coverage under this endorsement, you must have
a:
(a) Northern Potato Quality Endorsement in place and elect this
endorsement on or before the sales closing date for the initial crop
year in which you wish to insure your potatoes under this endorsement:
(1) Cancellation of your Northern Potato Quality Endorsement will
automatically result in cancellation of this endorsement;
(2) This endorsement may be canceled by either you or us for any
succeeding crop year by giving written notice to the other party on or
before the cancellation date: and
(b) Processor contract executed with a processor or broker for the
potato types insured under this endorsement that is applicable for the
crop year:
(1) A copy of the processor contract must be submitted to us on or
before the acreage reporting date for potatoes; and
(2) Failure to timely provide the processor contract will result in
no coverage under this endorsement and coverage will be provided only
under the terms of the Northern Potato Crop Provisions and Northern
Potato Quality Endorsement.
3. In return for payment of the additional premium designated in the
actuarial documents, this endorsement is attached to and made part of
your Northern Potato Crop Provisions and Northern Potato Quality
Endorsement subject to the terms and conditions described herein. In the
event of a conflict between the Northern Potato Crop Provisions or
Northern Potato Quality Endorsement and this endorsement, this
endorsement will control.
4. All terms of the Northern Potato Quality Endorsement not modified
by this endorsement will be applicable to acreage covered under this
endorsement.
5. If you elect this endorsement, all insurable acreage of
production under contract with the processor or broker must be insured
under this endorsement; however:
[[Page 307]]
(a) When the processor contract requires the processor or broker to
purchase a stated amount of production, rather than all of the
production from a stated number of acres, the insurable acres will be
determined by dividing the stated amount of production by the approved
yield for the acreage; and
(b) The number of acres insured under this endorsement will not
exceed the actual number of acres planted to the potato types needed to
fulfill the contract.
6. Potato lots may be adjusted in accordance with section 8 if such
potatoes:
(a) Fail to meet the standards in section 7(a), (b), (c), or (d), or
a standard contained in the processor contract, for the same quality
factors specified in section 7(a), (b), (c), or (d), if such standard is
less stringent;
(b) Have a value less than the maximum price election; and
(c) Fail to meet the applicable standards and are not separable from
undamaged production using methods used by processors to whom you
normally deliver your potato production.
7. To qualify for a quality reduction under this endorsement, the
potatoes must:
(a) Fail to meet the applicable U.S. No. 2 grade requirements due to
internal defects as long as the number of potatoes with such defects are
in excess of the tolerance allowed for U.S. No. 2 grade potatoes;
(b) Have a specific gravity lower than 1.074;
(c) Have a fry color of No. 3 or darker due to either sugar
exceeding 10 percent or sugar ends exceeding 19 percent; or
(d) Have an Agtron rating lower than 58.
8. In lieu of the provisions contained in section 5 of the Northern
Potato Quality Endorsement, production to count determined in accordance
with section 15 of the Basic Provisions and section 11 of the Northern
Potato Crop Provisions, from unharvested acreage or harvested acreage
that is stored or is marketed after a grade inspection determined in
section 10, will be adjusted in accordance with sections 8(a) or 8(b),
whichever is applicable, (adjustment under section 8(a) or 8(b)(1) will
not be performed if it already has been performed under the terms of
section 11(g) of the Northern Potato Crop Provisions):
(a) If a price is agreed upon between you and a buyer within 21 days
(60 days if the Northern Potato Storage Coverage Endorsement is
applicable) after the end of the insurance period, or the production is
delivered to a buyer within 21 days (60 days if the Northern Potato
Storage Coverage Endorsement is applicable), after the end of the
insurance period, the amount of production will be determined by:
(1) Dividing the price per hundredweight received or that will be
received by the highest price election designated in the Special
Provisions or addendum thereto for the insured potato type (If the
production is sold for a price lower than the value appropriate to and
representative of the local market, we will determine the value of the
production based on the price you could have received in the local
market); and
(2) Multiplying the result of section 8(a)(1) (not to exceed 1.0) by
the number of hundredweight of sold or to be sold production (We may
verify this after the production has actually been sold); or
(b) If a price is not agreed upon between you and a buyer and the
production is not delivered within 21 days (60 days if the Northern
Potato Storage Coverage Endorsement is applicable), after the end of the
insurance period, and the production remains in storage 22 or more days
(61 or more days if the Northern Potato Storage Coverage Endorsement is
applicable), after the end of the insurance period, the amount of
production will be the greater of:
(1) The amount of production determined by:
(i) Dividing the price per hundredweight that is received, or that
will later be received after the end of the applicable insurance period,
by the highest price election designated in the Special Provisions or
addendum thereto for the insured potato type (if the production is sold
for a price lower than the value appropriate to and representative of
the local market, we will determine the value of the production based on
the price you could have received in the local market); and
(ii) Multiplying the result of section 8(b)(1)(i) (not to exceed
1.0) by the number of hundredweight of sold or to be sold production (We
may verify this after the production has actually been sold); or
(2) The amount of production determined as follows:
(i) The combined weight of sampled potatoes that grade U.S. No. 2 or
better (the amount of potatoes grading U.S. No. 2 or better will be
based on a grade inspection completed no later than 21 days after the
end of the insurance period, if the Northern Potato Storage Coverage
Endorsement is applicable; samples must be obtained within 60 days after
the end of the insurance period and grade inspection completed within 21
days of sampling) and are damaged by freeze or tuber rot will be divided
by the total sample weight;
(A) The percentage determined in section 8(b)(2)(i) will be divided
by the applicable percentage factor; and
(B) The result of section 8(b)(2)(i)(A) will be multiplied by the
amount of production to count determined in accordance with section 15
of the Basic Provisions and section 11 of the Northern Potato Crop
Provisions.
(c) The production to count for potatoes that have a value less than
the maximum price election due to factors other than those
[[Page 308]]
specified in section 7 will be adjusted in accordance with section
8(b)(2).
9. For any production that qualifies for adjustment in accordance
with section 7 and that is discarded:
(a) Within 21 days (60 days if the Northern Potato Storage Coverage
Endorsement is applicable), after the end of the insurance period, the
amount of production to count will be:
(1) Zero if we determine the production could not have been sold; or
(2) Determined in accordance with section 8(b)(2) if we determine
the production could have been sold; or
(b) Later than 21 days (60 days if the Northern Potato Storage
Coverage Endorsement is applicable), after the end of the insurance
period, the amount of production to count will be adjusted in accordance
with section 8(b)(2).
10. All quality determinations must be based upon a grade inspection
using the United States Standards for Grades of Potatoes for Processing
or the United States Standards for Grades of Potatoes for Chipping.
11. The actuarial documents may provide ``U.S. No. 1 grade'' in
place of ``U.S. No. 2 grade'' as used in this endorsement. If both U.S.
No. 1 and 2 grades are available in the actuarial documents, you may
elect U.S. No. 1 or 2 grade by potato type or group, if separate types
or groups are specified in the Special Provisions.
[72 FR 61284, Oct. 30, 2007]
Sec. 457.145 Potato crop insurance--certified seed endorsement.
The Potato Crop Insurance Certified Seed Endorsement Provisions for
the 2008 and succeeding crop years are as follows:
FCIC policies:
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Potato Crop Insurance Certified Seed Endorsement
1. In return for payment of the additional premium designated in the
actuarial documents, this endorsement is attached to and made part of
your Northern Potato Crop Provisions subject to the terms and conditions
described herein. In accordance with section 8, since your insurance
period is not extended in this endorsement, any additional premium paid
for coverage under the Northern Potato Storage Coverage Endorsement will
not apply to the additional coverage provided under the terms of this
endorsement. In the event of a conflict between the Northern Potato Crop
Provisions and this endorsement, this endorsement will control.
2. You must elect this endorsement on or before the sales closing
date for the initial crop year you wish to insure your potatoes under
this endorsement. This endorsement will continue in effect until
canceled. It may be canceled by either you or us for any succeeding crop
year by giving written notice to the other party on or before the
cancellation date.
3. All potatoes grown on insurable acreage and that are entered into
the potato seed certification program administered by the state in which
the seed is grown must be insured unless limited by section 4 below.
4. Your certified seed production guarantee per-acre will be the
per-acre production guarantee used to cover the same acreage under the
terms of the Northern Potato Crop Provisions. However, unless a written
agreement provides otherwise, if the total amount of insurable certified
seed acreage you have for the current crop year is greater than 125
percent of your average number of acres entered into and passing
certification in the potato certified seed program in the three previous
calendar years, your certified seed production guarantee for each unit
will be reduced as follows:
(a) Multiply the average number of your acres entered into and
passing certification in the potato certified seed program the 3
previous calendar years by 1.25 and divide this result by the number of
acres grown by you for certified seed in the current crop year; and
(b) Multiply the result of section 4(a) (not to exceed 1.0) by the
production guarantee for certified seed for the current crop year.
5. You must provide acceptable records of your certified seed potato
acreage and production for the previous three years. These records must
clearly indicate the number of your acres entered into the potato seed
certification program administered by the state in which the seed is
grown.
6. All potatoes insured for certified seed production must be
produced and managed in accordance with the regulations, standards,
practices, and procedures required for certification under the potato
certified seed program. Any production that does not qualify as
certified seed because of varietal mixing or your failure to meet any
requirements under the potato certified seed program will be considered
as lost due to uninsured causes.
7. If, due to insurable causes occurring within the insurance
period, the amount of certified seed you produce is less than your
certified seed production guarantee, we will settle your claim by:
[[Page 309]]
(a) Multiplying the insured acreage by its respective certified seed
production guarantee;
(b) Multiplying each result in section 7(a) by the dollar amount per
hundredweight contained in the Special Provisions for production covered
under this endorsement;
(c) Totaling the results of section 7(b);
(d) Multiplying the number of hundredweight of production that
qualify as certified seed and any amount of production lost due to
uninsured causes, or that does not qualify as certified seed due to
uninsured causes, by the dollar amount per hundredweight contained in
the Special Provisions for production covered under this endorsement;
(e) Subtracting the result of section 7(d) from the result of
section 7(c); and
(f) Multiplying the result of section 7(e) by your share.
8. You must notify us of any loss under this endorsement not later
than 14 days after you receive notice from the state certification
agency that any acreage or production has failed certification. Nothing
herein extends the insurance period beyond the time period specified in
section 8 of the Northern Potato Crop Provisions and section 11 of the
Basic Provisions. In lieu of the provisions in section 14(c) of the
Basic Provisions specifying that any claim for indemnity must be filed
not later than 60 days after the end of the insurance period, your claim
for indemnity must be filed by the later of:
(a) Sixty (60) days after the end of the insurance period; or
(b) Thirty (30) days after you receive notice from the state
certifying agency that production has failed certification.
9. Acreage covered under the terms of this endorsement will have the
same unit structure as provided under the Basic Provisions and the
Northern Potato Crop Provisions. For example, if you have two optional
units (00101 and 00102) under your Northern Potato Crop Insurance Policy
and you elect this endorsement, you will also have two optional units
(00201 and 00202) for certified seed coverage, provided that certified
seed is grown in both units 00101 and 00102. Or, if you have two basic
units (00100 and 00200) under your Northern Potato Crop Insurance Policy
and you elect this endorsement, you will also have two basic units
(00300 and 00400) for certified seed coverage, provided that certified
seed is grown in both units 00100 and 00200. In the event certified seed
acreage is not grown in the same optional or basic units as acreage
covered under the Basic Provisions and the Northern Potato Crop
Provisions, certified seed units will be established in accordance with
the unit division provisions contained in the Basic Provisions and the
Northern Potato Crop Provisions. For example, if a basic unit is divided
into two optional units for potato acreage covered under the Basic
Provisions and the Northern Potato Crop Provisions, but certified seed
is grown in only one of those optional units, the certified seed acreage
will be insured as one basic unit.
10. Failure to meet any requirements for seed to be used to produce
a subsequent seed crop will not be covered. All the production that
meets requirements for certified seed used to produce a commercial crop
will be included in production to count.
[62 FR 65337, Dec. 12, 1997, as amended at 64 FR 71271, Dec. 21, 1999;
72 FR 61286, Oct. 30, 2007]
Sec. 457.146 Northern potato crop insurance--storage coverage
endorsement.
The Northern Potato Crop Insurance Storage Coverage Endorsement
Provisions for the 2008 and succeeding crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Northern Potato Crop Insurance Storage Coverage Endorsement
1. In return for payment of the required additional premium as
contained in the actuarial documents, this endorsement is attached to
and made part of your Northern Potato Crop Provisions subject to the
terms and conditions described herein. In the event of a conflict
between the Northern Potato Crop Provisions and this endorsement, this
endorsement will control.
2. You must elect this endorsement on or before the sales closing
date for the initial crop year in which you wish to insure your potatoes
under this endorsement. This endorsement will continue in effect until
canceled. It may be canceled by either you or us for any succeeding crop
year by giving written notice to the other party on or before the
cancellation date.
3. Potato production grown under a contract that requires the
production to be delivered to a buyer within three days of harvest will
not be insured under this endorsement. When such contract requires
delivery of a stated amount of production, rather than all of the
production from a stated amount of acres, the number of acres not
insured under this endorsement will be determined by dividing the stated
amount of production by the approved yield for the acreage. All other
potato production insured
[[Page 310]]
under the Northern Potato Crop Provisions must be insured under this
endorsement unless the Special Provisions allow you to exclude certain
potato varieties, types, or groups from this endorsement, and you elect
to exercise this option. If you elect this endorsement, such exclusions
must be shown annually on your acreage report and will be applicable to
all acreage of the excluded varieties, types, or groups for the crop
year.
4. When production from separate insurance units, basic or optional,
is commingled in storage, the production to count for each unit will be
allocated pro rata based on the production placed in storage from each
unit. Such allocation will be allowed only if verifiable records of
production placed in storage are available by unit. If you do not have
verifiable records, all units without verifiable records will be
combined in accordance with section 11 of the Northern Potato Crop
Provisions. For example, if 500 hundredweight from one unit are
commingled with 1,500 hundredweight from another unit and the production
to count from the stored production is 1,000 hundredweight, 250
hundredweight of production to count will be allocated to the unit
contributing 500 hundredweight and 750 hundredweight to the unit
contributing 1500 hundredweight to the stored production. This provision
does not eliminate or change any other requirement contained in this
policy to provide or maintain separate records of acreage or production
by unit.
5. In lieu of section 9(b)(1) of the Northern Potato Crop
Provisions, the extended coverage provided by this endorsement will be
applicable but only if:
(a) Insured potatoes are damaged within the insurance period by an
insured cause other than freeze that later results in:
(1) Tuber rot as defined in the Northern Potato Crop Provisions, to
the extent that 5.1 percent (by weight) or more of the insured
production is affected;
(2) Internal defects to the extent that such defects are in excess
of the amount allowed for the U.S. grade standard you elected for
purposes of coverage under the Northern Potato Crop Insurance Quality
Endorsement. Such defects must not be separable from undamaged
production using methods used by the packers or processors to which you
normally deliver your potato production. This coverage is applicable
only to production covered under the Northern Potato Crop Insurance
Quality Endorsement; or
(3) The potatoes damaged by an insurance cause of loss fail to meet
any of the following standards or a less stringent standard for the same
quality factors specified below, contained in the processor contract, if
applicable, (this coverage is applicable only to production covered
under the Northern Potato Processing Quality Endorsement):
(i) A specific gravity lower than 1.074;
(ii) A fry color of No. 3 or darker due to either sugar exceeding 10
percent or sugar ends exceeding 19 percent; or
(iii) An Agtron rating lower than 58.
(b) You notify us within 72 hours of your initial discovery of any
damage that has or that may later result in the quality deficiencies
specified in section 5(a);
(c) The percentage of production with any of the quality
deficiencies specified in section 5(a) is determined based on samples
obtained no later than 60 days after the end of the insurance period and
the potatoes are evaluated and quality (grade) determinations are made
by us, a laboratory approved by us, a potato grader licensed or
certified by the applicable State or the United States Department of
Agriculture, or us, in accordance with the United States Standards for
Grades of Potatoes:
(1) Samples of damaged production must be obtained by us or a party
approved by us prior to the sale or disposal of any lot of potatoes; and
(2) If production is not sold or disposed of within 60 days after
the end of the insurance period, samples must be obtained within 60 days
after the end of the insurance period and a quality (grade)
determination must be completed within 21 days of sampling.
[62 FR 65337, Dec. 12, 1997, as amended at 72 FR 61286, Oct. 30, 2007]
Sec. 457.147 Central and Southern potato crop insurance provisions.
The Central and Southern Potato Crop Insurance Provisions for the
2009 and succeeding crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Central and Southern Potato Crop Provisions
These provisions will be applicable in Alabama; Arizona; all
California counties except Humboldt, Modoc, and Siskiyou; Delaware;
Florida; Georgia; Maryland; Missouri; New Jersey; all New Mexico
counties except San Juan; North Carolina; Oklahoma; Texas; and Virginia;
and other states or counties if allowed by the Special Provisions.
1. Definitions
Certified seed. Potatoes that were entered into the potato certified
seed program and that meet all requirements for production to be used to
produce a seed crop for the next
[[Page 311]]
crop year or a potato crop for harvest for commercial uses in the next
crop year.
Discard. Disposal of production by you, or a person acting for you,
without receiving any value for it.
Disposed. Any disposition of the crop including but not limited to
sale or discard.
Grade inspection. An inspection in which samples of production are
obtained by us, or a party approved by us, prior to the sale, storage,
or disposal of any lot of potatoes, or any portion of a lot and the
potatoes are evaluated and quality (grade) determinations are made by
us, a laboratory approved by us, or a potato grader licensed or
certified by the applicable State or the United States Department of
Agriculture, in accordance with the United States Standards for Grades
of Potatoes. The United States standards used to determine the quality
(grade) deficiencies will be: For potatoes produced for chipping, the
United States Standards for Grades of Potatoes for Chipping; for
potatoes produced for processing, the United States Standards for Grades
of Potatoes for Processing; for potatoes produced for seed, the United
States Standards for Grades of Seed Potatoes; and for all other
potatoes, the United States Standards for Grades of Potatoes. The
quantity and number of samples required will be determined in accordance
with procedure issued by FCIC.
Harvest. Lifting potatoes from within the soil to the soil surface.
Hundredweight. One hundred (100) pounds avoirdupois.
Lot. A quantity of production that can be separated from other
quantities of production by grade characteristics, load, location or
other distinctive features.
Planting period. The period of time between the calendar dates
designated in the Special Provisions for the planting of spring-planted,
summer-planted, fall-planted, or winter-planted potatoes.
Potato certified seed program. The state program administered by a
public agency responsible for the seed certification process within the
state in which the seed is produced.
Practical to replant. In lieu of the definition of ``Practical to
replant'' contained in section one of the Basic Provisions, practical to
replant is defined as our determination, after loss or damage to the
insured crop, based on factors including, but not limited to, moisture
availability, condition of the field, marketing windows, and time to
crop maturity, that replanting to the insured crop will allow the crop
to attain maturity prior to the calendar date for the end of the
insurance period. It will not be considered practical to replant after
the end of the late planting period, or the end of the planting period
in which initial planting took place in counties for which the Special
Provisions designates separate planting periods, unless replanting is
generally occurring in the area.
2. Unit Division
A basic unit, as defined in section 1 of the Basic Provisions, will
be divided into additional basic units by planting period.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 2 of the Basic
Provisions, you may select only one price election for all the potatoes
in the county insured under this policy unless the Special Provisions
provide different price elections by type. If the Special Provisions
provide for different price elections by type, you may select one price
election for each potato type designated in the Special Provisions. The
price elections you choose for each type must have the same percentage
relationship to the maximum price election offered by us for each type.
For example, if you choose 100 percent of the maximum price election for
one type, you must also choose 100 percent of the maximum price election
for all other types.
(b) If the production from any acreage of the insured crop is not
harvested, the price used to determine your indemnity will be 90 percent
of your price election.
(c) The price election for unharvested acreage will apply to any
acreage of potatoes damaged to the extent that similarly situated
producers in the area would not normally care for the potatoes even if
you choose to continue to care for or harvest them. Potatoes that are
lifted to the soil surface and not removed from the field will also
receive the price election for unharvested acreage.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is:
(a) June 30 preceding the cancellation date for counties with a
September 30 cancellation date;
(b) September 30 preceding the cancellation date for counties with a
November 30, December 31, or January 31 cancellation date; and
(c) November 30 preceding the cancellation date for counties with a
February 28 or March 15 cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
[[Page 312]]
------------------------------------------------------------------------
State and county Dates
------------------------------------------------------------------------
Pinellas, Hillsborough, Polk, September 30.
Osceola, and Brevard Counties,
Florida, and all Florida counties
lying south thereof.
Arizona; all California counties; and November 30.
all Texas counties except Bailey,
Castro, Dallam, Deaf Smith, Floyd,
Gaines, Hale, Hartley, Haskell,
Knox, Lamb, Parmer, Swisher, and
Yoakum.
Alabama; Georgia; Missouri; and All December 31.
Florida Counties except Pinellas,
Hillsborough, Polk, Osceola, and
Brevard Counties, Florida, and all
Florida counties to the south
thereof.
Delaware; Maryland; New Jersey; North January 31.
Carolina; and Virginia.
Oklahoma; and Haskell and Knox February 28.
Counties, Texas.
Bailey, Castro, Dallam, Deaf Smith, March 15.
Floyd, Gaines, Hale, Hartley, Lamb,
Parmer, Swisher, and Yoakum
counties, Texas; and all New Mexico
counties except San Juan County.
------------------------------------------------------------------------
6. Annual Premium
In lieu of the premium computation method contained in section 7 of
the Basic Provisions, the annual premium amount (y) is computed by
multiplying (a) the production guarantee by (b) the price election for
harvested acreage, by (c) the premium rate, by (d) the insured acreage,
by (e) your share at the time of planting, and by (f) any applicable
premium adjustment factors contained in the actuarial documents
(axbxcxdxexf = y).
7. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the potatoes in the county for which a premium rate
is provided by the actuarial documents:
(a) In which you have a share;
(b) Planted with certified seed (unless otherwise permitted by the
Special Provisions);
(c) Planted for harvest as certified seed stock, or for human
consumption, (unless specified otherwise in the Special Provisions);
(d) That are not (unless allowed by the Special Provisions or by
written agreement):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions,
we will not insure any acreage that:
(a) Does not meet the rotation requirements contained in the Special
Provisions for the crop; or
(b) Is damaged before the final planting date or before the end of
the applicable planting period in counties for which the Special
Provisions designate separate planting periods, to the extent that
similarly situated producers in the area would normally not further care
for the crop, unless it is replanted or we agree that it is not
practical to replant.
9. Insurance Period
In accordance with the provisions of section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is the
date immediately following planting as follows (exceptions, if any, for
specific counties, varieties or types are contained in the Special
Provisions):
(a) July 15 in Missouri; and all Texas counties except Bailey,
Castro, Dallam, Deaf Smith, Floyd, Gaines, Hale, Haskell, Hartley, Knox,
Lamb, Parmer, Swisher, and Yoakum.
(b) July 25 in Arizona.
(c) August 15 in North Carolina; Oklahoma; and Haskell and Knox
Counties, Texas.
(d) August 31 in Virginia.
(e) In Alabama; California; Florida; and Georgia; the dates
established by the Special Provisions for each planting period; and
(f) October 15 in Bailey, Castro, Dallam, Deaf Smith, Floyd, Gaines,
Hale, Hartley, Lamb, Parmer, Swisher, and Yoakum Counties, Texas;
Delaware; Maryland; New Jersey; and all counties in New Mexico except
San Juan.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss which occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but only if sufficient and proper pest control measures
are used;
(4) Plant disease, but only if sufficient and proper disease control
measures are used;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period (see section 10(a) (1)
through (7)).
(b) In addition to the causes of loss not insured against as
contained in section 12 of the Basic Provisions, we will not insure
against any loss of production due to:
(1) Damage that occurs or becomes evident after the end of the
insurance period, including, but not limited to, damage that occurs or
becomes evident in storage; or
(2) Causes, such as freeze after certain dates, as limited by the
Special Provisions.
[[Page 313]]
11. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 of the Basic
Provisions, you must leave representative samples at least 10 feet wide
and extending the entire length of each field in the unit if you are
going to destroy any acreage of the insured crop that will not be
harvested.
(b) We must be given the opportunity to perform a grade inspection
on the production from any unit for which you have given notice of
damage.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which acceptable production records were not provided; and
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee (if there is unharvested acreage in the unit, the harvested
and unharvested acreage will be determined separately);
(2) Multiplying each result in section 12(b)(1) by the respective
price election (the price election may be limited as specified in
section 3.);
(3) Totaling the results of section 12(b)(2);
(4) Multiplying the total production to be counted of each type, if
applicable, (see section 12(d)) by the respective price election;
(5) Totaling the results of section 12(b)(4);
(6) Subtracting the results of section 12(b)(5) from the result in
section 12(b)(3); and
(7) Multiplying the result of section 12(b)(6) by your share.
For example: You have a 100 percent share in 100 harvested acres of
potatoes in the unit, with a guarantee of 150 hundredweight per acre and
a price election of $4.00 per hundredweight. You are only able to
harvest 10,000 hundredweight. Your indemnity would be calculated as
follows:
(1) 100 acres x 150 hundredweight = 15,000 hundredweight guarantee;
(2) 15,000 hundredweight x $4.00 price election = $60,000.00 value
of guarantee;
(4) 10,000 hundredweight x $4.00 price election = $40,000.00 value
of production to count;
(5) $60,000.00 - $40,000.00 = $20,000.00 loss; and
(6) $20,000.00 x 100 percent = $20,000.00 indemnity payment.
You also have a 100 percent share in 100 unharvested acres of
potatoes in the same unit, with a guarantee of 150 hundredweight per
acre and a price election of $3.60 per hundredweight. (The price
election for unharvested acreage is 90.0 percent of your elected price
election ($4.00 x 0.90 = $3.60.)) This unharvested acreage was appraised
at 35 hundredweight per acre for a total of 3500 hundredweight as
production to count. Your total indemnity for the harvested and
unharvested acreage would be calculated as follows:
(1) 100 acres x 150 hundredweight = 15,000 hundredweight guarantee
for the harvested acreage, and
100 acres x 150 hundredweight = 15,000 hundredweight guarantee for
the unharvested acreage;
(2) 15,000 hundredweight guarantee x $4.00 price election =
$60,000.00 value of guarantee for the harvested acreage, and
15,000 hundredweight guarantee x $3.60 price election = $54,000.00
value of guarantee for the unharvested acreage;
(3) $60,000.00 + $54,000.00 = $114,000.00 total value of guarantee;
(4) 10,000 hundredweight x $4.00 price election = $40,000.00 value
of production to count for the harvested acreage, and 3500 hundredweight
x $3.60 = $12,600.00 value of production to count for the unharvested
acreage;
(5) $40,000.00 + $12,600.00 = $52,600.00 total value of production
to count;
(6) $114,000.00 - $52,600.00 = $61,400.00 loss; and
(7) $61,400.00 loss x 100 percent = $61,400.00 indemnity payment.
(c) The extent of any quality loss must be determined based on
samples obtained no later than the time potatoes are placed in storage,
if the production is stored prior to sale, or the date they are
delivered to a buyer, wholesaler, packer, broker, or other handler if
production is not stored.
(d) The total production to count (in hundredweight) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes;
(D) From which any production is disposed of without a grade
inspection; or
(E) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Production lost due to harvest prior to full maturity.
Production to count from such acreage will be determined by increasing
the amount of harvested production by 2 percent per day for each day the
potatoes were harvested prior to the date the potatoes would have
reached full maturity. The date the potatoes would have reached full
maturity will
[[Page 314]]
be considered to be 45 days prior to the calendar date for the end of
the insurance period, unless otherwise specified in the Special
Provisions. This adjustment will not be made if the potatoes are damaged
by an insurable cause of loss, and leaving the crop in the field would
either reduce production or decrease quality.
(iv) Unharvested production, including unharvested production on
insured acreage you intend to put to another use or abandon, or acreage
damaged by insurable causes and for which you cease to provide further
care, if you and we agree on the appraised amount of production. Upon
such agreement, the insurance period for that acreage will end when you
put the acreage to another use or cease providing care for the crop.
This unharvested production may be adjusted in accordance with sections
12(e), and the value of all unharvested production will be calculated
using the reduced price election determined in section 3(b). If
agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The price used to determine the
amount of any indemnity will be limited as specified in section 3 even
if the representative samples are harvested. The amount of production to
count for such acreage will be based on the harvested production or
appraisals from the samples at the time harvest should have occurred. If
you do not leave the required samples intact, or fail to provide
sufficient care for the samples, our appraisal made prior to giving you
consent to put the acreage to another use will be used to determine the
amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage determined
in accordance with section 12(e).
(e) Only marketable lots of mature potatoes will be production to
count for loss adjustment purposes, except for production specified in
12(e)(1):
(1) Production not meeting the standards for grading U.S. No. 2 due
to external defects will be determined on an individual basis for all
harvested and unharvested potatoes if we determine it is or would be
practical to separate the damaged production;
(2) All determinations must be based upon a grade inspection; and
(3) Prior to any grade inspection, you must notify us of the
intended use of the potatoes so the appropriate United States Standard
will be applied (We may request previous sales records to verify your
claimed intended use or base the intended use on the type of potato
grown if such potatoes are not usually grown for the intended use you
reported).
(4) Marketable lots of potatoes will include any lot of potatoes
that is:
(i) Stored;
(ii) Sold as seed;
(iii) Sold for human consumption; or
(iv) Harvested and not sold or that is appraised if such lots meet
the standards for grading U.S. No. 2 grade or better on a sample basis.
(5) Marketable lots will also include any potatoes that we
determine:
(i) Could have been sold for seed or human consumption in the
general marketing area;
(ii) Were not sold as a result of uninsured causes including, but
not limited to, failure to meet chipper or processor standards for fry
color or specific gravity; or
(iii) Were disposed of without our prior written consent and such
disposition prevented our determination of marketability.
(6) Unless included in section 12(e)(4) or (5), a potato lot will
not be considered marketable if, due to insurable causes of damage, it:
(i) Is partially damaged, and is salvageable only for starch,
alcohol, or livestock feed;
(ii) Does not meet the standards for grading U.S. No. 2 grade or
better due to internal defects; or
(iii) Does not meet the standards for grading U.S. No. 2 grade or
better due to external defects, and it is not practical to separate the
damaged production.
13. Prevented Planting
Your prevented planting coverage will be 25 percent of your
production guarantee for timely planted acreage. If you have limited or
additional coverage, as specified in 7 CFR part 400, subpart T, and pay
an additional premium, you may increase your prevented planting coverage
to a level specified in the actuarial documents.
[62 FR 65333, Dec. 12, 1997, as amended at 72 FR 61287, Oct. 30, 2007]
Sec. 457.148 Fresh market pepper crop insurance provisions.
The fresh market pepper crop insurance provisions for the 1999 and
succeeding crop years are as follows:
FCIC Policies
[[Page 315]]
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Fresh Market Pepper Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Acre. 43,560 square feet of land when row widths do not exceed six
feet, or if row widths exceed six feet, the land area on which at least
7,260 linear feet of rows are planted.
Bell pepper. An annual pepper (of the capsicum annum species,
grossum group), widely cultivated for its large, crisp, edible fruit.
Box. One and one-ninth (1\1/9\) bushels of the insured crop.
Crop year. In lieu of the definition of ``crop year'' contained in
section 1 (Definitions) of the Basic Provisions (Sec. 457.8), crop year
is a period of time that begins on the first day of the earliest
planting period for fall planted peppers and continues through the last
day of the insurance period for spring planted peppers. The crop year is
designated by the calendar year in which spring planted peppers are
harvested.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the field for the
purpose of picking all or a portion of the crop.
Excess rain. An amount of precipitation sufficient to directly
damage the crop.
Freeze. The formation of ice in the cells of the plant or its fruit,
caused by low air temperatures.
Harvest. The picking of peppers on the unit.
Mature bell pepper. A pepper that has reached the stage of
development that will withstand normal handling and shipping.
Plant stand. The number of live plants per acre prior to the
occurrence of an insurable cause of loss.
Planted acreage. In addition to the definition contained in the
Basic Provisions, for each planting period, pepper seed or transplants
must initially be planted in rows, unless otherwise provided by the
Special Provisions, actuarial documents, or by written agreement.
Planting period. The period of time designated in the actuarial
documents in which the peppers must be planted to be considered fall,
winter or spring-planted peppers.
Potential production. The number of boxes of mature bell peppers
that the pepper plants will or would have produced per acre by the end
of the insurance period, assuming normal growing conditions and
practices.
Practical to replant. In lieu of the definition of ``Practical to
replant'' contained in section 1 of the Basic Provisions (Sec. 457.8),
practical to replant is defined as our determination, after loss or
damage to the insured crop, based on factors, including but not limited
to moisture availability, condition of the field, marketing windows, and
time to crop maturity, that replanting to the insured crop will allow
the crop to attain maturity prior to the calendar date for the end of
the insurance period (inability to obtain plants or seed will not be
considered when determining if it is practical to replant).
Row width. The widest distance from the center of one row of plants
to the center of an adjacent row of plants.
Tropical depression. A system identified by the U.S. Weather Service
as a tropical depression, and for the period of time so designated,
including tropical storms, gales, and hurricanes.
2. Unit Division
(a) A basic unit, as defined in section 1 of the Basic Provisions,
will also be divided into additional basic units by planting period.
(b) Provisions in the Basic Provisions that allow optional units by
irrigated and non-irrigated practices are not applicable.
3. Amounts of Insurance and Production Stages
(a) In addition to the requirements of section 3 (Insurance
Guarantees, Coverage Levels, and Prices for Determining Indemnities) of
the Basic Provisions (Sec. 457.8), you may select only one coverage
level (and the corresponding amount of insurance designated in the
actuarial documents for the applicable planting period and practice) for
all the peppers in the county insured under this policy.
(b) The amount of insurance you choose for each planting period and
practice must have the same percentage relationship to the maximum price
offered by us for each planting period and practice. For example, if you
choose 100 percent of the maximum amount of insurance for a specific
planting period and practice, you must also choose 100 percent of the
maximum amount of insurance for all other planting periods and
practices.
[[Page 316]]
(c) The production reporting requirements contained in section 3
(Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities) of the Basic Provisions (Sec. 457.8) do not apply to fresh
market peppers.
(d) The amounts of insurance per acre are progressive by stages as
follows:
------------------------------------------------------------------------
Percent of
the amount
of
Stage insurance Length of time if Length of time if
per acre direct-seeded transplanted
that you
selected
------------------------------------------------------------------------
1................ 65 From planting From planting
through the 74th through the 44th
day after planting. day after
planting.
2................ 85 From the 75th day From the 45th day
after planting after planting
until the until the
beginning of stage beginning of stage
3. 3.
3................ 100 Begins the earlier Begins the earlier
of 110 days after of 80 days after
planting, or the planting, or the
beginning of beginning of
harvest. harvest.
------------------------------------------------------------------------
(e) Any acreage of peppers damaged in the first or second stage to
the extent that the majority of producers in the area would not normally
further care for it, will be deemed to have been destroyed. The
indemnity payable for such acreage will be based on the stage the plants
had achieved when the damage occurred.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is April 30 preceding
the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are July 31.
6. Report of Acreage
In addition to the requirements of section 6 (Report of Acreage) of
the Basic Provisions (Sec. 457.8), you must report on or before the
acreage reporting date contained in the Special Provisions for each
planting period:
(a) All the acreage of peppers in the county insured under this
policy in which you have a share;
(b) The dates the acreage was planted within each planting period;
and
(c) The row width.
7. Annual Premium
In lieu of the premium amount determinations contained in section 7
(Annual Premium) of the Basic Provisions (Sec. 457.8), the annual
premium amount for each cultural practice (e.g., fall direct-seeded
irrigated) is determined by multiplying the third stage amount of
insurance per acre by the premium rate for the cultural practice as
established in the Actuarial Table, by the insured acreage, by your
share at the time coverage begins, and by any applicable premium
adjustment factors contained in the actuarial documents.
8. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), the crop insured will be all the bell peppers in the
county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are:
(1) Planted to be harvested and sold as mature fresh market bell
peppers;
(2) Planted within the planting periods designated in the actuarial
documents;
(3) Grown under an irrigated practice;
(4) Grown on acreage covered by plastic mulch except where the
Special Provisions allow otherwise;
(5) Grown by a person who in at least one of the three previous crop
years:
(i) Grew bell peppers for commercial sale; or
(ii) Participated in managing a bell pepper farming operation;
(c) That are not:
(1) Interplanted with another crop;
(2) Planted into an established grass or legume;
(3) Pimento peppers; or
(4) Grown for direct marketing.
9. Insurable Acreage
(a) In lieu of the provisions of section 9 (Insurable Acreage) of
the Basic Provisions (Sec. 457.8), that prohibit insurance attaching if
a crop has not been planted in at least one of the three previous crop
years, we will insure newly cleared land or former pasture land planted
to fresh market peppers.
(b) In addition to the provisions of section 9 (Insurable Acreage)
of the Basic Provisions (Sec. 457.8):
(1) You must replant any acreage of peppers damaged during the
planting period in which initial planting took place whenever less than
50 percent of the plant stand remains: and
[[Page 317]]
(i) It is practical to replant;
(ii) If, at the time the crop was damaged, the final day of the
planting period has not passed; and
(iii) The damage occurs within 30 days of transplanting or 60 days
of direct-seeding.
(2) Whenever peppers initially are planted during the fall or winter
planting periods and the conditions specified in sections 9(b)(1) (ii)
and (iii) are not satisfied, you may elect:
(i) To replant such acreage and collect any replant payment due as
specified in section 12. The initial planting period coverage will
continue for such replanted acreage.
(ii) Not to replant such acreage and receive an indemnity based on
the stage of growth the plants had attained at the time of damage.
However, such an election will result in the acreage being uninsurable
in the subsequent planting period.
(3) We will not insure any acreage on which peppers (except for
replanted peppers in accordance with sections 9(b)(1) and (2)),
tomatoes, eggplants, or tobacco have been grown and the soil was not
fumigated or otherwise properly treated before planting peppers.
10. Insurance Period
In lieu of the provisions of section 11 (Insurance Period) of the
Basic Provisions (Sec. 457.8), coverage begins on each unit or part of a
unit the later of the date we accept your application, or when the
peppers are planted in each planting period. Coverage ends at the
earliest of:
(a) Total destruction of the peppers on the unit;
(b) Abandonment of the peppers on the unit;
(c) The date harvest should have started on the unit on any acreage
which will not be harvested;
(d) Final adjustment of a loss on the unit;
(e) Final harvest; or
(f) The calendar date for the end of the insurance period as
follows:
(1) 165 days after the date of direct-seeding or replanting with
seed; and
(2) 150 days after the date of transplanting or replanting with
transplants.
11. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of Loss)
of the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur during the insurance period:
(1) Excess rain;
(2) Fire;
(3) Freeze;
(4) Hail;
(5) Tornado;
(6) Tropical depression; or
(7) Failure of the irrigation water supply, if caused by an insured
cause of loss that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes
of Loss) of the Basic Provisions (Sec. 457.8), we will not insure
against any loss of production due to:
(1) Disease or insect infestation, unless no effective control
measure exists for such disease or insect infestation; or
(2) Failure to market the peppers, unless such failure is due to
actual physical damage caused by an insured cause of loss that occurs
during the insurance period.
12. Replanting Payments
(a) In accordance with section 13 (Replanting Payment) of the Basic
Provisions (Sec. 457.8), a replanting payment is allowed if, due to an
insured cause of loss, more than 50 percent of the plant stand will not
produce peppers and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be
the lesser of your actual cost of replanting or the result obtained by
multiplying the per acre replanting payment amount contained in the
Special Provisions by your insured share.
(c) In lieu of the provisions contained in section 13 (Replanting
Payment) of the Basic Provisions (Sec. 457.8), that limit a replanting
payment to one each crop year, only one replanting payment will be made
for acreage planted during each planting period within the crop year.
13. Duties in the Event of Damage or Loss
In addition to the requirements contained in section 14 (Duties in
the Event of Damage or Loss) of the Basic Provisions (Sec. 457.8), if
you intend to claim an indemnity on any unit you also must give us
notice not later than 72 hours after the earliest of:
(a) The time you discontinue harvest of any acreage on the unit;
(b) The date harvest normally would start if any acreage on the unit
will not be harvested; or
(c) The calendar date for the end of the insurance period.
14. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
[[Page 318]]
(1) Multiplying the insured acreage in each stage by the amount of
insurance per acre for the final stage;
(2) Multiplying each result in section 14(b)(1) by the percentage
for the applicable stage (see section 3(d));
(3) Total the results of section 14(b)(2);
(4) Subtracting either of the following values from the result of
section 14(b)(3):
(i) For other than catastrophic risk protection coverage, the total
value of production to be counted (see section 14(c)); or
(ii) For catastrophic risk protection coverage, the result of
multiplying the total value of production to be counted (see section
14(c)) by:
(A) Sixty percent for the 1998 crop year; or
(B) Fifty-five percent for 1999 and subsequent crop years; and
(5) Multiplying the result of section 14(b)(4) by your share.
(c) The total value of production to count from all insurable
acreage on the unit will include:
(1) Not less than the amount of insurance per acre for the stage for
any acreage:
(i) That is abandoned;
(ii) Put to another use without our consent;
(iii) That is damaged solely by uninsured causes; or
(iv) For which you fail to provide acceptable production records;
(2) The value of the following appraised production will not be less
than the dollar amount obtained by multiplying the number of boxes of
appraised peppers by the minimum value per box shown in the Special
Provisions for the planting period:
(i) Potential production on any acreage that has not been harvested
the third time;
(ii) Unharvested mature bell peppers (unharvested production that is
damaged or defective due to insurable causes and is not marketable will
not be counted as production to count);
(iii) Production lost due to uninsured causes; and
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) We may require you to continue to care for the crop so that a
subsequent appraisal may be made or the crop harvested to determine
actual production (If we require you to continue to care for the crop
and you do not do so, the original appraisal will be used); or
(B) You may elect to continue to care for the crop, in which case
the amount of production to count for the acreage will be the harvested
production, or our reappraisal if the crop is not harvested.
(3) The total value of all harvested production from the insurable
acreage will be the dollar amount obtained by subtracting the allowable
cost contained in the Special Provisions from the price received for
each box of peppers (this result may not be less than the minimum value
shown in the Special Provisions for any box of peppers), and multiplying
this result by the number of boxes of peppers harvested. Harvested
production that is damaged or defective due to insurable causes and is
not marketable, will not be counted as production to count.
15. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
16. Minimum Value Option
(a) The provisions of this option are continuous and will be
attached to and made a part of your insurance policy, if:
(1) You elect either Option I or Option II of the Minimum Value
Option on your application, or on a form approved by us, on or before
the sales closing date for the initial crop year in which you wish to
insure fresh market peppers under this option, and pay the additional
premium indicated in the actuarial documents for this optional coverage;
and
(2) You have not elected coverage under the Catastrophic Risk
Protection Endorsement.
(b) In lieu of the provisions contained in section 14(c)(3), the
total value of harvested production will be determined as follows:
(1) If you selected Option I of the Minimum Value Option, the total
value of harvested production will be as follows:
(i) For sold production, the dollar amount obtained by subtracting
the allowable cost contained in the Special Provisions from the price
received for each box of peppers (this result may not be less than the
minimum value option price contained in the Special Provisions for any
box of peppers), and multiplying this result by the number of boxes of
peppers sold; and
(ii) For marketable production that is not sold, the dollar amount
obtained by multiplying the number of boxes of such peppers on the unit
by the minimum value shown in the Special Provisions for the planting
period (harvested production that is damaged or defective due to
insurable causes and is not marketable will not be counted as
production).
(2) If you selected Option II of the Minimum Value Option, the total
value of harvested production will be as provided in section 16(b)(1),
except that the dollar amount specified in section 16(b)(1)(i) may not
be less than zero.
[[Page 319]]
(c) This option may be canceled by either you or us for any
succeeding crop year by giving written notice on or before the
cancellation date preceding the crop year for which the cancellation of
this option is to be effective.
[62 FR 14789, Mar. 28, 1997, as amended at 62 FR 65174, Dec. 10, 1997]
Sec. 457.149 Table grape crop insurance provisions.
The Table Grape Crop Insurance Provisions for the 2010 and
succeeding crop years are as follows:
For:
Department of Agriculture
Federal Crop Insurance Corporation
For Reinsured Policies
(Insurance provider's name or other appropriate heading)
For both FCIC and reinsured policies:
Table Grape Crop Provisions
1. Definitions
Adapted. Varieties that are recognized by the National Institute of
Food and Agriculture as compatible with agronomic and weather conditions
in the county.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the field for the
purpose of picking all or a portion of the crop.
Graft. To unite a shoot or bud (scion) with a rootstock or an
existing vine in accordance with recommended practices to form a living
union.
Harvest. Removing the mature grapes from the vines either by hand or
machine.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Lug.
(1) Twenty (20) pounds of table grapes in the Coachella Valley,
California district, and all other States.
(2) Twenty-one (21) pounds in all other California districts.
(3) Or as otherwise specified in the Special Provisions.
Set out. Physically planting the grape plants in the vineyard.
Table grapes. Grapes that are grown for commercial sale for human
consumption as fresh fruit on acreage where the cultural practices to
produce fresh marketable grapes are carried out.
Type. A category of grapes (one or more varieties) identified as a
type in the Special Provisions.
USDA grade standard. (1) United States standard used to determine
the minimum quality grade will be:
(i) The United States Standards for Grades of Table Grapes (European
or Vinifera Type);
(ii) The United States Standards for Grades of American (Eastern
Type Bunch Grapes); and
(iii) The United States Standards for Grades of Muscadine (Vitis
rotundifolia) Grapes.
(2) The quantity and number of samples required will be determined
in accordance with procedure issued by FCIC or as provided on the
Special Provisions of Insurance.
Variety. A kind of grape that is distinguished from any other by
unique characteristics such as, but not limited to, size, color, skin
thickness, acidity, flavors and aromas. In Arizona and California each
variety is identified as a separate type in the Special Provisions
except for type 095 (other varieties). Type 095 is used to designate
varieties not listed as a separate type.
2. Unit Division
(a) In Arizona and California only:
(1) A basic unit as defined in section 1 of the Basic Provisions
will be divided into additional basic units by each table grape variety
that you insure; and
(2) Provisions in the Basic Provisions that provide for optional
units by section, section equivalent, or FSA farm serial number and by
irrigated and non-irrigated practices are not applicable. Unless
otherwise allowed by written agreement, optional units may only be
established if each optional unit is located on non-contiguous land or
grown and insured under an organic farming practice.
(b) In all states except Arizona and California, in addition to, or
instead of, establishing optional units by section, section equivalent,
or FSA farm serial number and by irrigated and non-irrigated acreage and
for acreage grown and insured under an organic farming practice as
provided in the unit division provisions contained in the Basic
Provisions, a separate optional unit may be established if each optional
unit:
(1) Is located on non-contiguous land; or
(2) Consists of a separate type when separate types are specified in
the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) In Arizona and California, you may select only one coverage
level and price election for each table grape variety you elect to
insure in the county.
[[Page 320]]
(b) In all states except Arizona and California, you may select only
one coverage level and price election for each table grape type in the
county as specified in the Special Provisions. The coverage level you
choose for each table grape type is not required to have same percentage
relationship. The price election you choose for each type is not
required to have the same percentage relationship to the maximum price
election offered by us for each type. For example, if you choose 75
percent coverage level and 100 percent of the maximum price election for
one type, you may choose 65 percent coverage level and 75 percent of the
maximum price election for another type. If you elect the Catastrophic
Risk Protection (CAT) level of insurance for any grape type, the CAT
level of coverage will be applicable to all insured grape acreage in the
county.
(c) In all states except Arizona and California, if you acquire a
share in any grape acreage after you submit your application, such
acreage is insurable under the terms of the policy and you did not
include the grape type on your application, we will assign the
following:
(1) A coverage level equal to the lowest coverage level you selected
for any other grape type: and
(2) A price election percentage equal to the type with the lowest
coverage level you selected, if you elected additional coverage; or 55
percent of the maximum price election, if you elected CAT.
(d) You must report by the production reporting date designated in
section 3 of the Basic Provisions, by type or variety if applicable:
(1) Any damage, removal of bearing vines, change in practices or any
other circumstance that may reduce the expected yield below the yield
upon which the insurance guarantee is based, and the number of affected
acres;
(2) The number of bearing vines on insurable and uninsurable
acreage;
(3) The age of the vines and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and any time the planting pattern of such
acreage is changed:
(i) The age of the interplanted crop, and the table grape type or
variety, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your approved yield.
(e) We will reduce the yield used to establish your production
guarantee, based on our estimate of the effect on yield potential of any
of the items listed in section 3(d)(1) through (4). If you fail to
notify us of any circumstance that may reduce your yields from previous
levels, we will reduce your production guarantee at any time we become
aware of the circumstance.
(f) Your request to increase the coverage level or price election
percentage will not be accepted if a cause of loss that could or would
reduce the yield of the insured crop is evident when your request is
made.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is October 31 preceding the cancellation date for Arizona
and California and August 31 preceding the cancellation date for all
other states.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are January 31 in Arizona and
California, and November 20 for all other states.
6. Report of Acreage
In addition to the requirements of section 6 of the Basic
Provisions, you must report your acreage:
(a) In Arizona and California, by each table grape variety you
insure; or
(b) In all other states, by each table grape type.
7. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be any insurable variety of table grapes that you elect to
insure in Arizona and California, or in all other states all insurable
types, in the county for which a premium rate is provided by the
actuarial documents:
(a) In which you have a share;
(b) That are grown for harvest as table grapes;
(c) That are adapted to the area;
(d) That are grown in a vineyard that, if inspected, is considered
acceptable by us;
(e) That, after being set out or grafted, have reached the number of
growing seasons designated by the Special Provisions; or
(f) That have produced an average of at least 150 lugs of table
grapes per acre (or as otherwise provided in the Special Provisions) in
at least one of the three crop years immediately preceding the insured
crop year, unless we inspect and allow insurance on acreage that has not
produced this amount.
8. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions that
prohibit insurance attaching to a crop planted with another crop, table
grapes interplanted with another perennial crop are insurable unless we
inspect the acreage and determine that it does not meet the requirements
contained in your policy.
[[Page 321]]
9. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions
(1) For the year of application, coverage begins on February 1 in
Arizona and California, and November 21 in all other states.
Notwithstanding the previous sentence, if your application is received
by us after January 12 but prior to February 1 in Arizona or California,
or after November 1 but prior to November 21 in all other states,
insurance will attach on the 20th day after your properly completed
application is received in our local office, unless we inspect the
acreage during the 20-day period and determine that it does not meet
insurability requirements. You must provide any information that we
require for the crop or to determine the condition of the vineyard.
(2) For each subsequent crop year that the policy remains
continuously in force, coverage begins on the day immediately following
the end of the insurance period for the prior crop year. Policy
cancellation that results solely from transferring to a different
insurance provider for a subsequent crop year will not be considered a
break in continuous coverage.
(3) If in accordance with the terms of the policy, your table grape
policy is cancelled or terminated for any crop year after insurance
attached for that crop year, but on or before the cancellation and
termination dates, whichever is later, insurance will not be considered
to have attached for that crop year and no premium, administrative fee,
or indemnity will be due for such crop year.
(4) The calendar date for the end of insurance period for each crop
year is the date specified in the Special Provisions.
(b) In addition to the provisions of section 11 of the Basic
Provisions:
(1) If you acquire an insurable share in any insurable acreage after
coverage begins, but on or before the acreage reporting date for the
crop year, and after an inspection we consider the acreage acceptable;
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period. Acreage
acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage
of table grapes on or before the acreage reporting date for the crop
year, insurance will not be considered to have attached to, and no
premium will be due or indemnity paid for such acreage for that crop
year unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the vineyard;
(3) Insects, except as excluded in 10(b)(1), but not damage due to
insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to:
(1) Phylloxera, regardless of cause; or
(2) Inability to market the table grapes for any reason other than
the actual physical damage from an insurable cause specified in this
section. For example, we will not pay you an indemnity if you are unable
to market due to quarantine, boycott, or refusal of any person to accept
production.
11. Duties In the Event of Damage or Loss
In addition to the requirements of section 14 of the Basic
Provisions, the following will apply:
(a) You must notify us within 3 days after the date harvest should
have started if the crop will not be harvested.
(b) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing. We will conduct an appraisal
that will be used to determine your production to count for production
that is sold by direct marketing. If damage occurs after this appraisal,
we will conduct an additional appraisal. These appraisals, and any
acceptable records provided by you, will be used to determine your
production to count. Failure to give timely notice that production will
be sold by direct marketing will result in an appraised amount of
production to count of not less than the production guarantee per acre
if such failure results in our inability to make the required appraisal.
(c) If the crop has been damaged during the growing season and you
previously gave notice in accordance with section 14 of the
[[Page 322]]
Basic Provisions, you must also provide notice at least 15 days prior to
the beginning of harvest if you intend to claim an indemnity as a result
of the damage previously reported. You must not destroy the damaged crop
until the earlier of 15 days from the date you gave notice of loss, or
our written consent to do so. If you fail to meet requirements of this
section all such production will be considered undamaged and included as
production to count.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee;
(2) Multiplying each result in section 12(b)(1) by the respective
price election you selected for each type or variety;
(3) Totaling the results in section 12(b)(2);
(4) Multiplying the total production to count of each type or
variety, if applicable, (see section 12(c)) by the respective price
election you selected;
(5) Totaling the results in section 12(b)(4);
(6) Subtracting the result of section 12(b)(5) from the result in
section 12(b)(3); and
(7) Multiplying the result of section 12(b)(6) by your share.
(c) The total production to count (in lugs) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the
requirements in section 11(b);
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production that meets, or would meet if properly
handled, the state quality standards, if specified in the Special
Provisions, or the appropriate USDA grade standard (if no state standard
is specified); and
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us of further damage or that
harvest is general in the area unless you harvested the crop, in which
case we will use the harvested production. If you do not continue to
care for the crop, our appraisal made prior to deferring the claim will
be used to determine the production to count; and
(2) All harvested production from insurable acreage regardless of
condition or disposition. The quantity of production to count for table
grape production damaged by insurable causes within the insurance period
that is marketed for any use other than table grapes will be determined
by multiplying the greater of (1) the value of the table grapes per ton
or (2) $50, by the number of tons and dividing that result by the
highest price election available for the insured unit. This result will
be the number of lugs to count.
13. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 47747, Sept. 11, 1997, as amended at 62 FR 65175, Dec. 10, 1997;
65 FR 47839, Aug. 4, 2000; 74 FR 32057, July 7, 2009; 74 FR 35113, July
20, 2009; 76 FR 4804, Jan. 27, 2011]
Sec. 457.150 Dry bean crop insurance provisions.
The dry bean crop insurance provisions for the 2003 and succeeding
crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Dry Bean Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Actual value. The dollar value received, or that could be received,
for contract seed beans under a seed bean processor contract if the
contract seed bean production is properly handled in accordance with the
requirements of such contract.
Base price. The price per pound (excluding any discounts or
incentives that may apply)
[[Page 323]]
that is stated in the seed bean processor contract and that will be paid
to the producer for at least 50 percent of the total production under
contract with the seed company.
Beans. Dry beans and contract seed beans.
Combining. A harvesting process that uses a machine to separate the
beans from the pods and other vegetative matter and place the beans into
a temporary storage receptacle.
Contract seed beans. Dry beans grown under the terms of a seed bean
processor contract for the purpose of producing seed to be used for
producing dry beans or vegetable beans in a future crop year.
Dry beans. The crop defined by The United States Standards for Beans
excluding contract seed beans.
Harvest. Combining the beans. Beans which are swathed or knifed
prior to combining are not considered harvested.
Local market price. The cash price per hundredweight for the U.S.
No. 2 grade of dry beans of the insured type offered by buyers in the
area in which you normally market the dry beans. Moisture content and
factors not associated with grading under the United States Standards
for Beans will not be considered in establishing this price.
Net price. The dollar value of dry bean production received, or that
could have been received, after reductions in value due to insurable
causes of loss.
Pick. The percentage, on a weight basis, of defects including
splits, damaged (including discolored) beans, contrasting types, and
foreign material that remains in the dry beans after dockage has been
removed by the proper use of screens or sieves.
Planted acreage. In addition to the definition contained in the
Basic Provisions, beans must initially be planted in rows far enough
apart to permit mechanical cultivation, unless otherwise provided by the
Special Provisions, actuarial documents, or by written agreement.
Practical to replant. In lieu of the definition of ``Practical to
replant'' contained in section 1 of the Basic Provisions (Sec. 457.8),
practical to replant is defined as our determination, after loss or
damage to the insured crop, based on factors, including but not limited
to moisture availability, condition of the field, time to crop maturity,
and marketing window, that replanting the insured crop will allow the
crop to attain maturity prior to the calendar date for the end of the
insurance period. It will not be considered practical to replant after
the end of the late planting period unless replanting is generally
occurring in the area. For contract seed beans, it will not be
considered practical to replant unless production from the replanted
acreage can be delivered under the terms of the seed bean processor
contract or the seed company agrees to accept such production.
Seed bean processor contract. A written agreement between the
contract seed bean producer and the seed company, containing at a
minimum:
(a) The contract seed bean producer's promise to plant and grow one
or more specific varieties of contract seed beans, and deliver the
production from those varieties to the seed company;
(b) The seed company's promise to purchase all the production stated
in the contract; and
(c) A base price, or a method to determine such price based on
published independent information, that will be paid to the contract
seed bean producer for the production stated in the contract.
Seed company. Any business enterprise regularly engaged in the
processing of seed beans, that possesses all licenses and permits for
marketing seed beans required by the State in which it operates, and
that possesses or has contracted for facilities, with enough drying,
screening and bagging or packaging equipment to accept and process the
seed beans within a reasonable amount of time after harvest.
Swathing or knifing. Severance of the bean plant from the ground,
including the pods and beans, and placing them into windrows.
Type. A category of beans identified as a type in the Special
Provisions.
2. Unit Division
(a) In addition to the definition of basic unit in section 1 of the
Basic Provisions, all acreage of contract seed beans qualifies as a
separate basic unit. For production based seed bean processor contracts,
the basic unit will consist of all the acreage needed to produce the
amount of production under contract, based on the actual production
history of the acreage. For acreage based seed bean processor contracts,
the basic unit will consist of all acreage specified in the contract.
(b) In addition to, or instead of, establishing optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated acreage as provided in the unit division provisions
contained in the Basic Provisions, a separate optional unit may be
established for each bean type shown in the Special Provisions.
(c) Contract seed beans may qualify for optional units only if the
seed bean processor contract specifies the number of acres under
contract. Contract seed beans produced under a seed bean processor
contract that specifies only an amount of production or a combination of
acreage and production, are not eligible for optional units.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3(b) (Insurance
Guarantees, Coverage
[[Page 324]]
Levels, and Prices for Determining Indemnities) of the Basic Provisions
(Sec. 457.8), you may select only one price election for all the dry
beans in the county insured under this policy unless the Special
Provisions provide different price elections by type, in which case you
may select one price election for each dry bean type designated in the
Special Provisions. The price elections you choose for each type are not
required to have the same percentage relationship to the maximum price
offered by us for each type. For example, if you choose 100 percent of
the maximum price election for one type, you may also choose 75 percent
of the maximum price election for another type.
(b) For contract seed beans only, the dollar amount of insurance is
obtained by multiplying the production guarantee per acre for each
variety in the unit by the insured acreage of that variety, times the
applicable base price, and times the price election percentage you
selected. The total of these results will be the amount of insurance for
contract seed beans in the unit.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions, the contract change date is November 30 (December 17 for the
1998 crop year only) preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation and
termination dates are:
----------------------------------------------------------------------------------------------------------------
State and county Cancellation and termination dates
----------------------------------------------------------------------------------------------------------------
California............................................ February 28.
All other States...................................... March 15.
----------------------------------------------------------------------------------------------------------------
6. Report of Acreage
For contract seed beans only, in addition to the requirements of
section 6 (Report of Acreage) of the Basic Provisions (Sec. 457.8), you
must submit a copy of the seed bean processor contract on or before the
acreage reporting date.
7. Insured Crop
(a) In accordance with section 8 (Insured Crop) of the Basic
Provisions(Sec. 457.8), the crop insured will be all the beans in the
county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvest as:
(i) Dry beans; or
(ii) If applicable, contract seed beans, if the seed bean processor
contract is executed on or before the acreage reporting date; and
(3) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume.
(b) For contract seed beans only:
(1) An instrument in the form of a ``lease'' under which you retain
control of the acreage on which the insured crop is grown and that
provides for delivery of the crop under substantially the same terms as
a seed bean processor contract may be treated as a contract under which
you have an insurable interest in the crop; and
(2) We will not insure any acreage of contract seed beans produced
by a seed company.
(c) In addition to the types of dry beans designated in the Special
Provisions, we will insure other types if:
(1) The type you intend to plant has been demonstrated to be adapted
to the area. Evidence of adaptability must include:
(i) Results of test plots for 2 years and recommendations by a
university or seed company; or
(ii) Two years of production reports that indicate your experience
producing the type in your production area;
(2) You submit on or before the sales closing date your production
reports and prices received, or the test plot results, and evidence of
market potential, including the price buyers are willing to pay for the
type; and
(3) Both parties (you and us) enter into a written agreement
allowing insurance on the type in accordance with section 18 of the
Basic Provisions.
(d) Any acreage of beans that is destroyed and replanted to a
different insurable type of beans will be considered insured acreage in
accordance with section 11.
8. Insurable Acreage
In addition to the provisions of section 9 (Insurable Acreage) of
the Basic Provisions (Sec. 457.8):
(a) We will not insure any acreage that does not meet the rotation
requirements contained in the Special Provisions; or
(b) Any acreage of the insured crop damaged before the final
planting date, to the extent that the majority of growers in the area
would normally not further care for the crop,
[[Page 325]]
must be replanted unless we agree that replanting is not practical. We
will not require you to replant if it is not practical to replant to the
same type of beans as originally planted.
9. Insurance Period
In accordance with the provisions of section 11 (Insurance Period)
of the Basic Provisions (Sec. 457.8), the calendar date for the end of
the insurance period is the date immediately following planting as
follows:
(a) October 15 in Oklahoma, New Mexico, and Texas;
(b) November 15 in California; and
(c) October 31 in all other States.
10. Causes of Loss
In accordance with the provisions of section 12 (Causes of Loss) of
the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes of loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
11. Replanting Payments
(a) In accordance with section 13 (Replanting Payment) of the Basic
Provisions (Sec. 457.8), a replanting payment is allowed if the bean
crop is damaged by an insurable cause of loss to the extent that the
remaining stand will not produce at least 90 percent of the production
guarantee for the acreage and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be
the lesser of 10 percent of the production guarantee for the type to be
replanted or 120 pounds multiplied by your price election for the type
to be replanted and by your insured share.
(c) When beans are replanted using a practice that is uninsurable as
an original planting, the liability for the unit will be reduced by the
amount of the replanting payment. The premium amount will not be
reduced.
(d) The guarantee and premium for acreage replanted to a different
insurable type will be based on the replanted type and will be
calculated in accordance with sections 3 (Insurance Guarantees, Coverage
Levels, and Prices for Determining Indemnities) and 7 (Annual Premium)
of the Basic Provisions (Sec. 457.8) and section 3 of these Crop
Provisions.
12. Duties in the Event of Damage or Loss
In accordance with the requirements of section 14 (Duties in the
Event of Damage or Loss) of the Basic Provisions (Sec. 457.8),
representative samples of the unharvested crop must be at least 10 feet
wide and extend the entire length of each field in the unit. The samples
must not be harvested or destroyed until the earlier of our inspection
or 15 days after harvest of the balance of the unit is completed.
13. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the unit.
(b) In the event of loss or damage to your bean crop covered by this
policy, we will settle your claim by:
(1) Multiplying the insured acreage of each dry bean type by its
respective production guarantee;
(2) Multiplying each result in section 13(b)(1) by the respective
price election for each insured type;
(3) Totaling the results in section 13(b)(2);
(4) Multiplying the insured acreage of each contract seed bean type
by its respective production guarantee;
(5) Multiplying each result in section 13(b)(4) by the applicable
base price;
(6) Multiplying each result in section 13(b)(5) by your selected
price election percentage;
(7) Totaling the results in section 13(b)(6);
(8) Totaling the results in section 13(b)(3) and section 13(b)(6);
(9) Multiplying the total production to be counted of each dry bean
type if applicable, (see section 13(d)) by the respective price
election;
(10) Totaling the value of all contract seed bean production (see
section 13(c));
(11) Totaling the results in section 13(b)(9) and section 13(b)(10);
(12) Subtracting the total in section 13(b)(11) from the total in
section 13(b)(8); and
(13) Multiplying the result by your share.
(c) The value of contract seed bean production to count for each
type in the unit will be determined as follows:
(1) For production meeting the minimum quality requirements
contained in the seed bean processor contract and for production
[[Page 326]]
that does not meet such requirements due to uninsured causes:
(i) Multiplying the actual value or base price per pound, whichever
is greater, by the price election percentage you selected; and
(ii) Multiplying the result by the number of pounds of such
production.
(2) For production not meeting the minimum quality requirements
contained in the seed bean processor contract due to insurable causes:
(i) Multiplying the actual value by the price election percentage
you selected; and
(ii) Multiplying the result by the number of pounds of such
production.
(d) The total bean production to count (in pounds) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production of dry
beans may be adjusted for quality deficiencies and excess moisture in
accordance with section 13(e)); and
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(e) Mature dry bean production to count may be adjusted for excess
moisture and quality deficiencies. If moisture adjustment is applicable,
it will be made prior to any adjustment for quality. Adjustment for
excess moisture and quality deficiencies will not be applicable to
contract seed beans.
(1) Production will be reduced by 0.12 percent for each 0.1
percentage point of moisture in excess of 18 percent. We may obtain
samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) A pick is designated in the Special Provisions and the pick of
the damaged production exceeds this designation; or
(ii) A pick is not designated in the Special Provisions and
deficiencies in quality, in accordance with the United States Standards
for Beans, result in dry beans not meeting the grade requirements for
U.S. No. 2 (grades U.S. No. 3 or worse) because the beans are damaged or
badly damaged; or
(iii) Substances or conditions are present that are identified by
the Food and Drug Administration or other public health organizations of
the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a
cause of loss against which insurance is provided under these crop
provisions and which occurs within the insurance period;
(ii) The deficiencies, substances, or conditions result in a net
price for the damaged production that is less than the local market
price;
(iii) All determinations of these deficiencies, substances, or
conditions are made using samples of the production obtained by us or by
a disinterested third party approved by us;
(iv) With regard to deficiencies in quality (except test weight,
which may be determined by our loss adjuster), the samples are analyzed
by:
(A) A grader licensed under the United States Agricultural Marketing
Act or the United States Warehouse Act;
(B) A grader licensed under State law and employed by a warehouse
operator who has a storage agreement with the Commodity Credit
Corporation; or
(C) A grader not licensed under State law, but who is employed by a
warehouse operator who has a commodity storage agreement with the
Commodity Credit Corporation and is in compliance with State law
regarding warehouses; and
(v) With regard to substances or conditions injurious to human or
animal health, the samples are analyzed by a laboratory approved by us.
[[Page 327]]
(4) Dry bean production that is eligible for quality adjustment, as
specified in sections 13(e) (2) and (3), will be reduced:
(i) If a conversion factor is designated by the Special Provisions,
by multiplying the number of pounds of eligible production by the
conversion factor designated in the Special Provisions for the
applicable grade or pick; or
(ii) If a conversion factor is not designated by the Special
Provisions as follows:
(A) The market price of the qualifying damaged production and the
local market price will be determined on the earlier of the date such
quality adjusted production is sold or the date of final inspection for
the unit. If a local market price is not available for the insured crop
year, the current years' maximum price election available for the
applicable type will be used. The price for the qualifying damaged
production will be the market price for the local area to the extent
feasible. We may obtain prices from any buyer of our choice. If we
obtain prices from one or more buyers located outside your local market
area, we will reduce such prices by the additional costs required to
deliver the dry beans to those buyers. Discounts used to establish the
net price of the damaged production will be limited to those that are
usual, customary, and reasonable. The price of the damaged production
will not be reduced for:
(1) Moisture content;
(2) Damage due to uninsured causes; or
(3) Drying, handling, processing, including trading tare for grade
to obtain a higher grade and price, or any other costs associated with
normal harvesting, handling, and marketing of the dry beans; except, if
the price of the damaged production can be increased by conditioning, we
may reduce the price of the production after it has been conditioned by
the cost of conditioning but not lower than the value of the production
before conditioning;
(B) The value per pound of the damaged or conditioned production
will be divided by the local market price to determine the quality
adjustment factor; and
(C) The number of pounds remaining after any reduction due to
excessive moisture (the moisture-adjusted gross pounds (if appropriate))
of the damaged or conditioned production will then be multiplied by the
quality adjustment factor to determine the net production to count.
(f) Any production harvested from plants growing in the insured crop
may be counted as production of the insured crop on a weight basis.
14. Prevented Planting
Your prevented planting coverage will be 60 percent of your
production guarantee for timely planted acreage. If you have limited or
additional levels of coverage, as specified in 7 CFR part 400, subpart
T, and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[62 FR 6105, Feb. 11, 1997, as amended at 62 FR 63633, Dec. 2, 1997; 62
FR 65175, Dec. 10, 1997; 67 FR 55690, Aug. 30, 2002]
Sec. 457.151 Forage seeding crop insurance provisions.
The Forage Seeding Crop Insurance Provisions for 2003 and succeeding
crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies:
Forage Seeding Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Crop year. The period within which the planting is or normally would
become established and shall be designated by the calendar year in which
the planting is made for spring planted acreage and the next succeeding
calendar year for fall planted acreage.
Fall planted. A forage crop seeded after June 30.
Forage. Planted perennial alfalfa, perennial red clover, perennial
grasses, or a mixture thereof, or other species, as shown in the
actuarial documents.
Good farming practices. The cultural practices generally in use in
the county for the crop to make normal progress toward maturity and
produce a normal stand, and are those recognized by the National
Institute of Food and Agriculture as compatible with agronomic and
weather conditions in the county.
Harvest. Severance of the forage plant from its roots. Acreage that
is only grazed will not be considered harvested.
Normal stand. A population of live plants per square foot that meets
the minimum required number of plants as shown in the Special
Provisions.
Nurse Crop (companion crop). A crop seeded into the same acreage as
another crop, that is intended to be harvested separately, and
[[Page 328]]
that is planted to improve growing conditions for the crop with which it
is grown.
Planted acreage. In addition to the provisions in section 1 of the
Basic Provisions, land on which seed is initially spread onto the soil
surface by any method and subsequently is mechanically incorporated into
the soil in a timely manner and at the proper depth will be considered
planted, unless otherwise provided by the Special Provisions, actuarial
documents, or written agreement.
Replanting. Performing the cultural practices necessary to prepare
the land for replacing of the forage seed and then replacing the forage
seed in the insured acreage with the expectation of producing a normal
stand. Replacing new seed into an existing damaged stand, which results
in a reduced seeding rate from the original seeding rate, will not be
considered replanting.
Sales closing date. In lieu of the definition contained in the Basic
Provisions, a date contained in the Special Provisions by which an
application must be filed and by which you may change your crop
insurance coverage for a crop year. If the Special Provisions provide a
sales closing date for both fall seeded and spring seeded practices for
the insured crop and you plant any insurable fall seeded acreage, you
may not change your crop insurance coverage after the fall sales closing
date for the fall seeded practice.
Spring planted. A forage crop seeded before July 1.
2. Unit Division
A basic unit, as defined in section 1 of the Basic Provisions, will
also be divided into additional basic units by spring planted and fall
planted acreage.
3. Amounts of Insurance
(a) In addition to the requirements of section 3 (Insurance
Guarantees, Coverage Levels, and Prices for Determining Indemnities) of
the Basic Provisions (Sec. 457.8), you may only select one coverage
level and the corresponding amount of insurance designated in the
actuarial documents for the applicable type and practice for all the
forage seeding in the county that is insured under this policy. The
amount of insurance you choose for each type and practice must have the
same percentage relationship to the maximum amount of insurance offered
by us for each type and practice. For example, if you choose 100 percent
of the maximum amount of insurance for a specific type and practice, you
must also choose 100 percent of the maximum amount of insurance for all
other types and practices.
(b) The production reporting requirements contained in section 3
(Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities) of the Basic Provisions (Sec. 457.8), do not apply to
forage seeding.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date for counties
with a March 15 cancellation date and April 30 preceding the
cancellation date for all other counties.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
------------------------------------------------------------------------
Cancellation and
State and county termination dates
------------------------------------------------------------------------
California, Nevada, New Hampshire, New July 31.
York, Pennsylvania, South Dakota counties
for which the Special Provisions designate
both fall and spring final planting dates,
and Vermont.
South Dakota counties for which the Special March 15.
Provisions designate only a spring final
planting date, and all other states.
------------------------------------------------------------------------
6. Report of Acreage
In lieu of the provisions of section 6(a) of the Basic Provisions, a
report of all insured acreage of forage seeding must be submitted on or
before each forage seeding acreage report date specified in the Special
Provisions.
7. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic Provisions
(Sec. 457.8), the crop insured will be all the forage in the county for
which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is planted during the current crop year, or replanted
during the calendar year following planting, to establish a normal stand
of forage;
(c) That is not grown with the intent to be grazed, or not grazed at
any time during the insurance period; and
(d) That is not interplanted with another crop, except nurse crops,
unless allowed by the Special Provisions or by written agreement.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
[[Page 329]]
(a) In California counties Lassen, Modoc, Mono, Shasta, Siskiyou and
all other states, any acreage of the insured crop damaged before the
final planting date, to the extent that such acreage has less than 75
percent of a normal stand, must be replanted unless we agree that it is
not practical to replant; and
(b) In California, unless otherwise specified in the Special
Provisions, any acreage of the insured crop damaged anytime during the
crop year to the extent that such acreage has less than 75 percent of a
normal stand must be replanted unless it cannot be replanted and reach a
normal stand within the insurance period.
9. Insurance Period
In lieu of the provisions of section 11 (Insurance Period) of the
Basic Provisions (Sec. 457.8) regarding when insurance ends, forage
seeding insurance will end at the earliest of:
(a) Total destruction of the insured crop on the unit;
(b) The initial harvest of the unit, if a late harvest date is not
listed in the Special Provisions;
(c) The first harvest after the late harvest date, if a late harvest
date is specified in the Special Provisions. You may harvest the crop as
often as practical in accordance with good farming practices on or
before the late harvest date.
(d) Final adjustment of a loss on a unit;
(e) Abandonment of the insured crop;
(f) The date grazing commences on the insured crop; or
(g) The following calendar dates:
(1) During the calendar year following the year of seeding for:
(i) Fall planted acreage in all California counties except
Lassen, Modoc, Mono, Shasta and Siskiyou--November 30;
(ii) Spring planted acreage in Lassen, Modoc, Mono, Shasta and
Siskiyou Counties California, Colorado, Idaho, Nebraska, Nevada, Oregon,
Utah and Washington--April 14;
(iii) Spring planted acreage in all other states--May 21;
(iv) Fall planted acreage in Lassen, Modoc, Mono, Shasta and
Siskiyou Counties California and all other states--October 15;
(2) During the calendar year of seeding for spring planted acreage
in all California counties except Lassen, Modoc, Mono, Shasta and
Siskiyou--November 30.
10. Causes of Loss
In accordance with the provisions of section 12 (Causes of Loss) of
the Basic Provisions (Sec. 457.8), insurance is provided only against
the following causes that result in loss of, or failure to establish, a
stand of forage that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
11. Replanting Payment
In lieu of the provisions contained in section 13 of the Basic
Provisions:
(a) A replanting payment is allowed if:
(1) In California, unless specified otherwise in the Special
Provisions, acreage planted to the insured crop is damaged by an
insurable cause of loss occurring within the insurance period to the
extent that less than 75 percent of a normal stand remains and the crop
can reach maturity before the end of the insurance period;
(2) In Lassen, Modoc, Mono, Shasta, Siskiyou Counties, California,
and all other states:
(i) A replanting payment is allowed only whenever the Special
Provisions designate both fall and spring final planting dates;
(ii) The insured fall planted acreage is damaged by an insurable
cause of loss to the extent that less than 75 percent of a normal stand
remains;
(iii) It is practical to replant;
(iv) We give written consent to replant; and
(v) Such acreage is replanted the following spring by the spring
planting date.
(b) The amount of the replanting payment will be equal to 50 percent
of the amount of indemnity determined in accordance with section 13
unless otherwise specified in the Special Provisions.
(c) No replanting payment will be made on acreage for which one
replanting payment has been allowed.
(d) If the information reported by you on the acreage report results
in a lower premium than the actual premium determined to be due based on
the acreage, share, practice, or type determined actually to have
existed, the replanting payment will be reduced proportionately.
12. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 (Duties in the
Event of Damage or Loss) of the Basic Provisions (Sec. 457.8), the
representative samples of the crop must be at least 10 feet wide and
extend the entire length of each field in the unit. The samples must not
be harvested or destroyed until the
[[Page 330]]
earlier of our inspection or 15 days after tilling of the balance of the
unit is completed.
(b) In addition to the requirements of section 14 (Duties in the
Event of Damage or Loss) of the Basic Provisions (Sec. 457.8), you must
give us written notice if, during the period before destroying the crop
on any fall planted acreage that is damaged, you decide to replant the
acreage by the spring final planting date.
13. Settlement of Claim
(a) In the event of loss or damage covered by this policy, we will
settle your claim on any unit by:
(1) Multiplying the insured acreage of each type and practice by the
amount of insurance for the applicable type and practice;
(2) Totaling the results in section 13(a)(1);
(3) Multiplying the total acres with an established stand for the
insured acreage of each type and practice in the unit by the amount of
insurance for the applicable type and practice;
(4) Totaling the results in section 13(a)(3);
(5) Subtracting the result in section 13(a)(4) from the result in
section 13(a)(2); and
(6) Multiplying the result in section 13(a)(5) by your share.
Example: Assume you have 100 percent share in 30 acres of type A
forage in the unit, with an amount of insurance of $100.00 per acre. At
the time of loss, the following findings are established: 10 acres had a
remaining stand of 75 percent or greater. You also have 20 acres of type
B forage in the unit, with an amount of insurance of $90.00 per acre. 10
acres had a remaining stand of 75 percent or greater. Your indemnity
would be calculated as follows:
1. 30 acres x $100.00 = $3,000 amount of insurance for type A; 20
acres x $90.00 = $1,800 amount of insurance for type B;
2. $3,000 + $1,800 = $4,800 total amount of insurance;
3. 10 acres with 75% stand or greater x $100.00 = $1,000 production
to count for type A: 10 acres with 75% stand or greater x $90.00 = $900
production to count for type B;
4. $1,000 + $900 = $1,900 total production to count;
5. $4,800-$1,900 = $2,900 loss;
6. $2,900 x 100 percent share = $2,900 indemnity payment.
(b) The acres with an established stand will include:
(1) Acreage that has at least 75 percent of a normal stand;
(2) Acreage abandoned or put to another use without our prior
written consent;
(3) Acreage damaged solely by an uninsured cause; or
(4) Acreage that is harvested and not reseeded.
(c) The amount of indemnity on any spring planted acreage determined
in accordance with section 13(a) will be reduced 50 percent if the stand
is less than 75 percent but more than 55 percent of a normal stand.
14. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 13291, Mar. 20, 1997, as amended at 62 FR 65175, Dec. 10, 1997;
65 FR 3784, Jan. 25, 2000; 65 FR 11457, Mar. 3, 2000; 66 FR 42730, Aug.
15, 2001; 66 FR 53076, Oct. 19, 2001; 67 FR 65030, Oct. 23, 2002; 76 FR
4804, Jan. 27, 2011]
Sec. 457.152 Hybrid seed corn crop insurance provisions.
The Hybrid Seed Corn Crop Insurance Provisions for the 1998 and
succeeding crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured policies
Hybrid Seed Corn Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions, (Sec. 457.8) with (1)
controlling (2), etc.
1. Definitions
Adjusted yield. An amount determined by multiplying the county yield
by the coverage level factor.
Amount of insurance per acre. A dollar amount determined by
multiplying the adjusted yield by the price election you select and
subtracting any minimum guaranteed payment, not to exceed the total
compensation specified in the hybrid seed corn processor contract. If
your hybrid seed corn processor contract contains a minimum guaranteed
payment that is stated in bushels, we will convert that value to dollars
by multiplying it by the price election you selected.
Approved yield. In lieu of the definition contained in the Basic
Provisions, an amount FCIC determines to be representative of the yield
that the female parent plants are expected to produce when grown under a
specific production practice. FCIC will establish the approved yield
based upon records provided by the seed company and other information it
deems appropriate.
Bushel. Fifty-six pounds avoirdupois of shelled corn, 70 pound
avoirdupois of ear corn, or the number of pounds determined
[[Page 331]]
under the seed company's normal conversion chart when that chart is used
to determine the approved yield and the claim for indemnity.
Certified seed test. A warm germination test performed on clean seed
according to specifications of the ``Rules for Testing Seeds'' of the
Association of Official Seed Analysts.
Commercial hybrid seed corn. The offspring produced by crossing a
male and female parent plant, each having a different genetic character.
This offspring is the product intended for use by an agricultural
producer to produce a commercial field corn crop for grain.
County yield. An amount contained in the actuarial documents that is
established by FCIC to represent the yield that a producer of hybrid
seed corn would be expected to produce if the acreage had been planted
to commercial field corn.
Coverage level factor. A factor contained in the Special Provisions
to adjust the county yield for commercial field corn to reflect the
higher value of hybrid seed corn.
Dollar value per bushel. An amount that determines the value of any
seed production to count. It is determined by dividing the amount of
insurance per acre by the result of multiplying the approved yield by
the coverage level percentage, expressed as a decimal.
Female parent plants. Corn plants that are grown for the purpose of
producing commercial hybrid seed corn and have had the stamens removed
or are otherwise male sterile.
Field run. Commercial hybrid seed corn production before it has been
dried, screened, or processed.
Good farming practices. In addition to the definition contained in
the Basic Provisions, good farming practices include those practices
required by the hybrid seed corn processor contract.
Harvest. Combining, threshing or picking ears from the female parent
plants to obtain commercial hybrid seed corn.
Hybrid seed corn processor contract. An agreement executed between
the hybrid seed corn crop producer and a seed company containing, at a
minimum:
(a) The producer's promise to plant and grow male and female parent
plants, and to deliver all commercial hybrid seed corn produced from
such plants to the seed company;
(b) The seed company's promise to purchase the commercial hybrid
seed corn produced by the producer; and
(c) Either a fixed price per unit of measure (bushels,
hundredweight, etc.) of the commercial hybrid seed corn or a formula to
determine the value of such seed. Any formula for establishing the value
must be based on data provided by a public third party that establishes
or provides pricing information to the general public, based on prices
paid in the open market (e.g., commodity futures exchanges), to be
acceptable for the purpose of this policy.
Inadequate germination. Germination of less than 80 percent of the
commercial hybrid seed corn as determined by using a certified seed
test.
Insurable interest. Your share of the financial loss that occurs in
the event seed production is damaged by a cause of loss specified in
section 10.
Local market price. The cash price offered by buyers for any
production from the female parent plants that is not considered
commercial hybrid seed corn under the terms of this policy.
Male parent plants. Corn plants grown for the purpose of pollinating
female parent plants.
Minimum guaranteed payment. A minimum amount (usually stated in
dollars or bushels) specified in your hybrid seed corn processor
contract that will be paid or credited to you by the seed company
regardless of the quantity of seed produced.
Non-seed production. Production that does not qualify as seed
production because of inadequate germination.
Planted acreage. In addition to the definition contained in the
Basic Provisions, the insured crop must be planted in rows wide enough
to permit mechanical cultivation, unless otherwise provided by the
Special Provisions or by written agreement.
Planting pattern. The arrangement of the rows of the male and female
parent plants in a field. An example of a planting pattern is four
consecutive rows of female parent plants followed by two consecutive
rows of male parent plants.
Practical to replant. In addition to the definition contained in the
Basic Provisions, practical to replant applies to either the female or
male parent plant. It will not be considered practical to replant unless
production from the replanted acreage can be delivered under the terms
of the hybrid seed corn processor contract, or the seed company agrees
that it will accept the production from the replanted acreage.
Prevented planting. In addition to the definition contained in the
Basic Provisions, prevented planting applies to the female and male
parent plants. The male parent plants must be planted in accordance with
the requirements of the hybrid seed corn processor contract to be
considered planted.
Sample. For the purpose of the certified seed test, at least 3
pounds of randomly selected field run shelled corn for each variety of
commercial hybrid seed corn grown on the unit.
Seed company. A business enterprise that possesses all licenses for
marketing commercial hybrid seed corn required by the state in which it
is domiciled or operates, and which possesses facilities with enough
storage and
[[Page 332]]
drying capacity to accept and process the insured crop within a
reasonable amount of time after harvest. If the seed company is the
insured, it must also be a corporation.
Seed production. All seed produced by female parent plants with a
germination rate of at least 80 percent as determined by a certified
seed test.
Shelled corn. Kernels that have been removed from the cob.
Variety. The name, number or code assigned to a specific genetic
cross by the seed company or the Special Provisions for the insured crop
in the county.
2. Unit Division
For any processor contract that stipulates the amount of production
to be delivered:
(a) In lieu of the definition of ``basic unit'' contained in the
Basic Provisions, a basic unit will consist of all acreage planted to
the insured crop in the county that will be used to fulfill a hybrid
seed corn processor contract;
(b) There will be no more than one basic unit for all production
contracted with each processor contract;
(c) In accordance with section 12, all production from any basic
unit in excess of the amount under contract will be included as
production to count if such production is applied to any other basic
unit for which the contracted amount has not been fulfilled; and
(d) Optional units will not be established.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3 of the Basic
Provisions, you may select only one price election for all the hybrid
seed corn in the county insured under this policy unless the Special
Provisions provide different price elections by variety, in which case
you may select one price election for each hybrid seed corn variety
designated in the Special Provisions. The price election you choose for
each variety must have the same percentage relationship to the maximum
price offered by us for each variety. For example, if you choose 100
percent of the maximum price election for one specific variety, you must
also choose 100 percent of the maximum price election for all other
varieties.
(b) The production reporting requirements contained in section 3 of
the Basic Provisions are not applicable to this contract.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
6. Report of Acreage
In addition to the requirements of section 6 of the Basic
Provisions, you must:
(a) Report by type and variety, the location and insurable acreage
of the insured crop;
(b) Report any acreage that is uninsured, including that portion of
the total acreage occupied by male parent plants; and
(c) Certify that you have a hybrid seed corn processor contract and
report the amount, if any, of any minimum guaranteed payment.
7. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the female parent plants in the county for which a
premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are grown under a hybrid seed corn processor contract
executed before the acreage reporting date;
(3) That are planted for harvest as commercial hybrid seed corn in
accordance with the requirements of the hybrid seed corn processor
contract and the production management practices of the seed company;
and
(4) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Planted with a mixture of female and male parent seed in the
same row;
(ii) Planted for any purpose other than for commercial hybrid seed
corn;
(iii) Interplanted with another crop; or
(iv) Planted into an established grass or legume.
(b) An instrument in the form of a ``lease'' under which you retain
control of the acreage on which the insured crop is grown and that
provides for delivery of the crop under substantially the same terms as
a hybrid seed corn processor contract will be treated as a contract
under which you have an insurable interest in the crop.
(c) A commercial hybrid seed corn producer who is also a seed
company may be able to insure the hybrid seed corn crop if the following
requirements are met:
(1) The seed company has an insurable interest in the hybrid seed
corn crop;
(2) Prior to the sales closing date, the Board of Directors of the
seed company has executed and adopted a corporate resolution that
contains the same terms as a hybrid seed corn processor contract. This
corporate resolution will be considered a contract under this policy;
(3) Sales records for at least the previous years' seed production
must be provided to
[[Page 333]]
confirm that the seed company has produced and sold seed. If such
records are not available, the crop may be insured under the Coarse
Grains Crop Provisions with a written agreement; and
(4) Our inspection reveals that the storage and drying facilities
satisfy the definition of a seed company.
(d) Any of the insured crop that is under contract with different
seed companies may be insured under separate policies with different
insurance providers provided all acreage of the insured crop in the
county is insured. If you elect to insure the insured crop with
different insurance providers, you agree to pay separate administrative
fees for each insurance policy.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions,
we will not insure any acreage of the insured crop:
(a) Planted and occupied exclusively by male parent plants;
(b) Not in compliance with the rotation requirements contained in
the Special Provisions or, if applicable, required by the hybrid seed
corn processor contract; or
(c) If either the female or male parent plants are damaged before
the final planting date and we determine that the insured crop is
practical to replant but it is not replanted.
9. Insurance Period
(a) In addition to the provisions of section 11 of the Basic
Provisions, insurance attaches upon completion of planting of:
(1) The female parent plant seed on or before the final planting
date designated in the Special Provisions, except as allowed in section
16 of the Basic Provisions; and
(2) The male parent plant seed.
(b) In accordance with the provisions of section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is the
October 31 immediately following planting.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of
loss contained in section 10(a) (1) through (7) that occurs during the
insurance period.
(b) In addition to the causes of loss excluded by section 12 of the
Basic Provisions, we will not insure against any loss of production due
to:
(1) The use of unadapted, incompatible, or genetically deficient
male or female parent plant seed;
(2) Frost or freeze after the date established by the Special
Provisions;
(3) Failure to follow the requirements stated in the hybrid seed
corn processor contract and production management practices of the seed
company;
(4) Inadequate germination, even if resulting from an insured cause
of loss, unless you have provided adequate notice as required by section
11(b)(1); or
(5) Failure to plant the male parent plant seed at a time or in a
manner sufficient to assure adequate pollination of the female parent
plants, unless you are prevented from planting the male parent plant
seed by an insured cause of loss.
11. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 of the Basic
Provisions, you must leave representative samples of at least one
complete planting pattern of the female and male parent plant rows that
extend the entire length of each field in the unit. If you are going to
destroy any acreage of the insured crop that will not be harvested, the
samples must not be destroyed until after our inspection.
(b) In addition to the requirements of section 14 of the Basic
Provisions:
(1) You must give us notice of probable loss at least 15 days before
the beginning of harvest if you anticipate inadequate germination on any
unit; and
(2) You must provide a completed copy of your hybrid seed corn
processor contract unless we have determined it has already been
provided by the seed company, and the seed company certifies that such
contract is used for all its growers without any waivers or amendments.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) You will not receive an indemnity payment on a unit if the seed
company refuses
[[Page 334]]
to provide us with records we require to determine the dollar value per
bushel of production for each variety.
(c) In the event of loss or damage covered by this policy, we will
settle your claim on any unit by:
(1) Multiplying the insured acreage by its respective amount of
insurance per acre, by type and variety if applicable;
(2) Totaling the results of section 12(c)(1) if there are more than
one type or variety;
(3) Multiplying the total seed production to count (see section
12(d)) for each type and variety of commercial hybrid seed corn by the
applicable dollar value per bushel for that type or variety;
(4) Multiplying the total non-seed production to count (see section
12(e)) for each type and variety by the applicable local market price
determined on the earlier of the date the non-seed production is sold or
the date of final inspection;
(5) Totaling the results of sections 12(c)(3) and 12(c)(4) by type
and variety;
(6) Subtracting the result of section 12(c)(5) from the result of
section 12(c)(1) if there is only one type or variety, or subtracting
the result of 12(c)(5) from the result of section 12(c)(2) if there are
more than one type or variety; and
(7) Multiplying the result of section 12(c)(6) by your share. For
example:
You have a 100 percent share in 50 acres insured for the development
of variety ``A'' hybrid seed corn in the unit, with an amount of
insurance per acre guarantee of $340 (county yield of 160 bushels times
a coverage level factor of .867 for the 65 percent coverage level, times
a price election of $2.45 per bushel, minus the minimum guaranteed
payment of zero). Your seed production was 1,400 bushels and the dollar
value per bushel was $9.80. Your non-seed production was 100 bushels
with a local market value of $2.00 per bushel. Your indemnity would be
calculated as follows:
(1) 50 acres x $340 = $17,000 amount of insurance guarantee;
(3) 1,400 bushels x $9.80 = $13,720 value of seed production;
(4) 100 bushel of non-seed x $2.00 = $200 of non-seed production;
(5) $13,720 + $200 = $13,920;
(6) $17,000 - $13,920 = $3,080; and
(7) $3,080 x 100 percent share = $3,080 indemnity payment.
You also have a 100 percent share in 50 acres insured for the
development of variety ``B'' hybrid seed corn in the unit, with an
amount of insurance per acre guarantee of $297 (county yield of 140
bushels times a coverage level factor of .867 for the 65 percent
coverage level, times a price election of $2.45 per bushel, minus the
minimum guaranteed payment of zero). You harvested 1,200 bushels and the
dollar value per bushel for the harvested amount was $8.56. You also
harvested 200 bushels of non-seed with a market value of $2.00 per
bushel. Your indemnity would be calculated as follows:
(1) 50 acres x $340 = $17,000 amount of insurance guarantee for type
``A'' and 50 acres x $297 = $14,850 amount of insurance guarantee for
type ``B'';
(2) $17,000 + $14,850 = $31,850 amount of insurance guarantee;
(3) 1,400 bushels x $9.80 = $13,720 value of seed production for
type ``A'' and 1,200 bushels x $8.56 = $10,272 value of seed production
for type ``B'';
(4) 100 bushels of non-seed x $2.00 = $200 of non-seed production
for type ``A'' and 200 bushels of non-seed x $2.00 = $400 of non-seed
production for type ``B'';
(5) $13,720 + $200 + $10,272 + $400 = $24,592 value of production to
count;
(6) $31,850 - $24,592 = $7,258; and
(7) $7,258 x 100 percent share = $7,258 indemnity payment.
(d) Production to be counted as seed production will include:
(1) All appraised production as follows:
(i) Not less than the amount of insurance per acre for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Mature unharvested production with a germination rate of at
least 80 percent of the commercial hybrid seed corn as determined by a
certified seed test. Any such production may be adjusted in accordance
with section 12(f);
(iv) Immature appraised production;
(v) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be
[[Page 335]]
used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) Harvested production that you deliver as commercial hybrid seed
corn to the seed company stated in your hybrid seed corn processor
contract, regardless of quality, unless the production has inadequate
germination.
(e) Production to be counted as non-seed production will include all
harvested or mature appraised production that does not qualify as seed
production to count as specified in section 12(d). Any such production
may be adjusted in accordance with section 12(f).
(f) For the purpose of determining the quantity of mature
production:
(1) Shelled commercial hybrid seed corn will be:
(i) Increased 0.12 percent for each 0.1 percentage point of moisture
below 15 percent; or
(ii) Decreased 0.12 percent for each 0.1 percentage point of
moisture in excess of 15 percent.
(2) The weight of ear corn required to equal one bushel of shelled
seed corn will be increased 1.5 pounds for each full percentage point of
moisture in excess of 14 percent, and any portion of a percentage point
will be disregarded. The moisture content of ear corn will be determined
from a shelled sample of the ear corn.
(3) When records of commercial hybrid seed corn production provided
by the seed company have been adjusted to a shelled corn basis of 15.0
percent moisture and 56 pound avoirdupois bushels, sections 12(f)(1) and
(2) above will not apply to harvested production. In such cases, records
of the seed company will be used to determine the amount of production
to count, provided that the moisture and weight of such production are
calculated on the same basis as that used to determine the approved
yield.
13. Prevented Planting
Your prevented planting coverage will be 50 percent of your amount
of insurance for timely planted acreage. If you have limited or
additional levels of coverage as specified in 7 CFR part 400, subpart T,
and pay an additional premium, you may increase your prevented planting
coverage to a level specified in the actuarial documents.
[62 FR 65350, Dec. 12, 1997; 62 FR 67117, Dec. 23, 1997]
Sec. 457.153 Peach crop insurance provisions.
The Peach Crop Insurance Provisions for the 2013 and succeeding crop
years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured policies:
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Peach Crop Provisions
1. Definitions
Bearing tree. A tree in at least the 4th growing season after set
out.
Bushel. Fifty pounds of ungraded peaches.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, or permitting the general public to enter the field for the
purpose of picking all or a portion of the crop.
Fresh peach production. Peach production from insurable acreage
that:
(1) Is sold, or could be sold, for human consumption without
undergoing any change in the basic form, such as peeling, juicing,
crushing, etc.
(2) Grades at least U.S. Extra No. 1 or better, and consisting of a
2\1/4\ inch minimum diameter, unless otherwise specified in the Special
Provisions.
(3) Is from acreage that is designated as fresh peaches on the
acreage report;
(4) Follows the recommended cultural practices generally in use for
fresh peach acreage in the area in a manner generally recognized by
agricultural experts;
(5) Is from acreage that you certify, and if requested by us,
provide verifiable records to support, that at least 50 percent of the
total production from acreage reported as fresh peach acreage was sold
as fresh peaches in one or more of the four most recent crop years; and
(6) Is sold or could have been sold for a price that is not less
than the applicable fresh peach price election for the applicable crop
year in the actuarial documents. If the fresh peach production is sold
or could have been sold for a price less than the applicable fresh peach
price election for the applicable crop year in the actuarial documents,
you must provide verifiable records to show that the price received was
at least the amount paid by buyers for fresh peaches in the area in
which you sell your peaches.
[[Page 336]]
Harvest. The picking or removal of mature peaches from the trees
either by hand or machine.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Loss in quality. When the crop is damaged to the extent that the
producer does not receive the average price for U.S. Extra No. 1 peach.
Marketable. Peach production acceptable for processing or other
human consumption even if failing to meet any U.S. or applicable state
grading standard.
Packing shed. A facility at which peaches are graded, packed and
cooled in preparation for shipment to a wholesale market.
Post production cost. The costs, as specified in the Special
Provisions, associated with activities that occur during harvesting,
packing, transportation, and marketing, as determined by FCIC using
regional peach price data of peach production budgets from regional
respective universities extension, other USDA agencies, and other third
party resources.
Processing peach production. Peach production from insurable acreage
that is:
(i) Sold, or could be sold, for the purpose of undergoing a change
to its basic structure such as peeling, juicing, crushing, etc.; or
(ii) From acreage designated as processing peaches on the acreage
report.
Set out. Transplanting the tree into the orchard.
2. Unit Division.
In addition to the requirements contained in section 34 of the Basic
Provisions, optional units may be established if each optional unit is:
(a) Located on non-contiguous land; or
(b) By fresh and processing as specified in the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic Provisions
(Sec. 457.8):
(a) You may select a separate coverage level for all fresh peach
acreage and for all processing peach acreage. For example, if you choose
the 55 percent coverage level for all fresh peach acreage, you may
choose the 75 percent coverage level for all processing peach acreage.
(1) Notwithstanding paragraph (a) of this section, if you elect the
Catastrophic Risk Protection (CAT) level of coverage for fresh peach
acreage or processing peach acreage, the CAT level of coverage will be
applicable to all insured peach acreage in the county of both fresh and
processing peaches.
(2) If you only have fresh peach acreage designated on your acreage
report and processing peach acreage is added after the sales closing
date, we will assign a coverage level equal to the coverage level you
selected for your fresh peach acreage.
(3) If you only have processing peach acreage designated on your
acreage report and fresh peach acreage is added after the sales closing
date, we will assign a coverage level equal to the coverage level you
selected for your processing peach acreage.
(b) You may select only one price election for all the peaches in
the county insured under this policy unless the Special Provisions
provide different price elections by fresh and processing peaches. If
the Special Provisions allow different price elections, you may select a
separate price election for all your fresh peaches and for all your
processing peaches. If the Special Provisions do not allow for different
price elections, the price elections you choose for fresh peaches and
processing peaches must have the same percentage relationship to the
maximum price offered by us for fresh and processing peaches. For
example, if you choose 100 percent of the maximum price election for
fresh peaches, you must choose 100 percent of the maximum price election
for processing peaches.
(c) You must report, not later than the production reporting date
designated in section 3 of the Basic Provisions, separately by fresh and
processing peach acreage, as applicable:
(1) Any event or action that could impact the yield potential of the
insured crop including, interplanting of a perennial crop, removal of
trees, any tree damage, change in practices, or any other circumstance
that may reduce the expected yield upon which the insurance guarantee is
based, and the number of affected acres;
(2) The number of bearing and non-bearing trees on insurable and
uninsurable acreage;
(3) The age of trees, variety, and the planting pattern; and
(4) For the first year of insurance, acreage interplanted with
another perennial crop, and anytime the planting pattern of such acreage
is changed:
(i) The age of the crop that is interplanted with the peaches;
(ii) The variety;
(iii) The planting pattern; and
(iv) Any other reasonable and pertinent information that we request
in order to establish your approved yield.
(d) We will reduce the yield used to establish your production
guarantee, as necessary, based on our estimate of the effect of any
situation listed in sections 3(c)(1) through (4). If the situation
occurred:
(1) Before the beginning of the insurance period, we will reduce the
yield used to establish your production guarantee for the current crop
year as necessary. If you fail to notify us of any circumstance that may
reduce your yields from previous levels, we
[[Page 337]]
will reduce your production guarantee at any time we become aware of the
circumstance;
(2) Or may occur after the beginning of the insurance period and you
notify us by the production reporting date, the yield used to establish
your production guarantee is due to an uninsured cause of loss;
(3) Or may occur after the beginning of the insurance period and you
fail to notify us by the production reporting date, production lost due
to uninsured causes equal to the amount of the reduction in yield used
to establish your production guarantee will be applied in determining
any indemnity (see section 12(c)(1)(ii). We will reduce the yield used
to establish your production guarantee for the subsequent crop year.
(e) You may not increase your elected or assigned coverage level or
the ratio of your price election to the maximum price election if a
cause of loss that could or would reduce the yield of the insured crop
has occurred prior to the time that you request the increase.
4. Contract Changes
In accordance with section 4 of the Basic Provisions (Sec. 457.8),
the contract change date is August 31 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions (Sec. 457.8),
the cancellation and termination dates are November 20.
6. Report of Acreage.
In addition to the requirements contained in section 6 of the Basic
Provisions, you must report and designate all acreage of peaches as
fresh or processing peaches by the acreage reporting date. Any acreage
not meeting all the requirements to qualify for fresh peach production
must be designated on the acreage report as processing peach production.
7. Insured Crop
In accordance with section 8 of the Basic Provisions (Sec. 457.8),
the crop insured will be all the peaches in the county for which a
premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown on tree varieties that:
(1) Were commercially available when the trees were set out;
(2) Are a variety having a chilling hour requirement that is
appropriate for the area;
(3) Are grown on a root stock that is adapted to the area.
(c) That the crop insured will be any varieties of peaches that are
grown for the production of Fresh or Processing Peaches.
(d) That are grown in an orchard that, if inspected, is considered
acceptable by us;
(e) That has reached at least the fourth growing season after set
out. However, we may agree in writing to insure acreage that has not
reached this age if it has produced at least 100 bushels of peaches per
acre; and
(f) That are grown for:
(1) Fresh peach production; or
(2) Processing peach production.
8. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions
(Sec. 457.8), that prohibit insurance attaching to a crop planted with
another crop, peaches interplanted with another perennial crop are
insurable unless we inspect the acreage and determine that it does not
meet the requirements contained in your policy.
9. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions (Sec. 457.8):
(1) Coverage begins on November 21 of each crop year, except that
for the year of application, if your application is received after
November 11 but prior to November 21, insurance will attach on the 10th
day after your properly completed application is received in our local
office, unless we inspect the acreage during the 10-day period and
determine that it does not meet insurability requirements. You must
provide any information that we require for the crop to determine the
condition of the orchard.
(2) The calendar date for the end of the insurance period for each
crop year is September 30.
(b) In addition to the provisions of section 11 of the Basic
Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable interest on any acreage of
peaches on or before the acreage reporting date for the crop year and if
the acreage was insured by you the previous crop year, insurance will
not be considered to have attached, and no premium or indemnity will be
due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(c) Notwithstanding section 9(a)(1) of this section, for each
subsequent crop year that the policy remains continuously in force,
[[Page 338]]
coverage begins on the day immediately following the end of the
insurance period for the prior crop year. Policy cancellation that
results solely from transferring to a different insurance provider for a
subsequent crop year will not be considered a break in continuous
coverage.
(d) If your peach policy is canceled or terminated for any crop
year, in accordance with the terms of the policy, after insurance
attached for that crop year but on or before the cancellation and
termination dates, whichever is later, insurance will not be considered
to have attached for that crop year and no premium, administrative fee,
or indemnity will be due for such crop year.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions (Sec. 457.8), insurance is provided only against the
following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the orchard;
(3) Earthquake;
(4) Insects, but not damage due to insufficient or improper
application of pest control measures;
(5) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(6) Volcanic eruption;
(7) Wildlife, unless control measures have not been taken;
(8) An insufficient number of chilling hours to effectively break
dormancy; or
(9) Failure of irrigation water supply, if caused by an insured
peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions (Sec. 457.8), we will not insure against damage or loss
of production due to:
(1) Split pits, regardless of cause; or
(2) Inability to market the peaches for any reason other than actual
physical damage from an insurable cause specified in this section. For
example, we will not pay you an indemnity if you are unable to market
due to quarantine, boycott, or refusal of any person to accept
production.
11. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 of the Basic
Provisions, you must leave representative samples in accordance with our
procedures.
(b) In addition to the requirements of section 14 of the Basic
Provisions (Sec. 457.8), and unless the insurance period has ended prior
to each of the following events, the following will apply:
(1) You must notify us within three days of the date that harvest of
the damaged variety should have started if the crop will not be
harvested.
(2) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing unless you have records
verifying that the direct market peaches were ``weighed and graded''
through a packing shed. Failure to give timely notice that production
will be sold by direct marketing will result in an appraised amount of
production to count not less than the production guarantee per acre if
such failure results in our inability to make the required appraisal.
(3) If you previously gave notice in accordance with section 14 of
the Basic Provisions (Sec. 457.8), and if you intend to claim an
indemnity on any unit, you must notify us at least 15 days prior to the
beginning of harvest of the damaged variety, so that we may inspect the
damaged production. You must not sell or dispose of the damaged crop
until after we have given you written consent to do so.
(4) If you fail to meet the requirements of this section and such
failure results in our inability to inspect the damaged production, all
such production will be considered undamaged and included as production
to count.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for fresh and processing
peaches, as applicable, by the respective production guarantee;
(2) Multiplying each result in section 12(b)(1) by the respective
price election;
(3) Totaling the results in section 12(b)(2);
(4) Multiplying the total production of fresh and processing peaches
to be counted, as applicable (see subsection 12(c)) by the respective
price election;
(5) Totaling the results in section 12(b)(4);
(6) Subtracting the total in section 12(b)(5) from the total in
section 12(b)(3); and
(7) Multiplying the result in section 12(b)(6) by your share.
Example: You have a 100 percent share in one basic unit with 10
acres of fresh peaches and 5 acres of processing peaches designated on
your acreage report, with a 300 bushel per acre production guarantee for
both fresh and
[[Page 339]]
processing peaches, and you select 100 percent of the price election of
$15.50 per bushel for fresh peaches and $6.50 per bushel for processing
peaches. You harvest 2,500 bushels of fresh peaches and 500 bushels of
processing peaches. Your indemnity will be calculated as follows:
(A) 10 acres x 300 bushels = 3,000-bushel production guarantee of
fresh peaches;
5 acres x 300 bushels = 1,500-bushel production guarantee of
processing peaches;
(B) 3,000-bushel production guarantee x $15.50 price election =
$46,500 value of the production guarantee for fresh peaches; 1,500-
bushel production guarantee x $6.50 price election = $9,750 value of the
production guarantee for processing peaches;
(C) $46,500 value of the production guarantee for fresh peaches +
$9,750 value of the production guarantee for processing peaches =
$56,250 total value of the production guarantee;
(D) 2,500 bushels of fresh peach production to count x $15.50 price
election = $38,750 value of the fresh peach production to count; 500
bushels of processing peach production to count x $6.50 price election =
$3,250 value of the processing peach production to count;
(E) $38,750 value of the fresh peach production to count + $3,250
value of the processing peach production to count = $42,000 total value
of the production to count;
(F) $56,250 total value of the production guarantee--$42,000 total
value of the production to count = $14,250 value of loss; and
(G) $14,250 value of loss x 100 percent share = $14,250 indemnity
payment.
[End of Example]
(c) The total production to count (in bushels) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) From which production is sold by direct marketing if you fail to
meet the requirements contained in section 11.
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested peach production that would be marketable if
harvested;
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us of further damage or that
harvest is general in the area unless you harvested the crop, in which
case we will use the harvested production. If you do not continue to
adequately care for the crop, our appraisal made prior to deferring the
claim will be used to determine the production to count; and
(v) Any appraised production on insured acreage will be considered
production to count unless such production is exceeded by the actual
harvested production.
(2) All harvested marketable peach production from the insurable
acreage.
(3) Mature marketable peach production may be reduced as a result of
a loss in quality due to an insured cause of loss. The amount of
production to count for such peaches will be determined as follows:
(i) For fresh peaches by:
(A) Dividing the value of the damaged peaches minus the post
production cost specified in the Special Provisions, by the fresh peach
price election; and
(B) Multiplying the result of section 12(c)(3)(i)(A) (not to exceed
1.00) by the number of bushels of the damaged fresh peaches.
(ii) For processing peaches by:
(A) Dividing the value of the damaged peaches minus the post
production cost specified in the Special Provisions, by the processing
peach price election; and
(B) Multiplying the result of section 12(c)(3)(ii)(A) (not to exceed
1.00) by the number of bushels of the damaged processing peaches.
(4) Peaches that cannot be marketed due to insurable causes will not
be considered production to count.
13. Late and Prevented Planting
the late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 39923, July 25, 1997, as amended at 62 FR 65176, Dec. 10, 1997;
65 FR 47839, Aug. 4, 2000; 77 FR 52592, Aug. 31, 2012]
Sec. 457.154 Processing sweet corn crop insurance provisions.
The Processing Sweet Corn Crop Insurance Provisions for the 2014 and
succeeding crop years are as follows:
FCIC Policies
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Processing Sweet Corn Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1)
[[Page 340]]
The Catastrophic Risk Protection Endorsement, if applicable; (2) the
Special Provisions; (3) these Crop Provisions; and (4) the Basic
Provisions with (1) controlling (2), etc.
1. Definitions
Base contract price. The price stipulated on the processor contract
without regard to discounts or incentives that may apply.
Bypassed acreage. Land on which production is ready for harvest but
the processor elects not to accept such production so it is not
harvested.
Good farming practices. The cultural practices generally in use in
the county for the crop to make normal progress toward maturity and
produce at least the yield used to determine the production guarantee
and are those required by the sweet corn processor contract with the
processing company, and recognized by the National Institute of Food and
Agriculture as compatible with agronomic and weather conditions in the
county.
Harvest. The removal of the ears from the stalks for the purpose of
delivery to the processor.
Planted acreage. In addition to the definition contained in the
Basic Provisions, sweet corn must initially be placed in rows far enough
apart to permit mechanical cultivation. Acreage planted in any other
manner will not be insurable unless otherwise provided by the Special
Provisions or by written agreement.
Practical to replant. In lieu of the definition of Practical to
replant contained in section 1 of the Basic Provisions, practical to
replant is defined as our determination, after loss or damage to the
insured crop, based on factors including, but not limited to, moisture
availability, condition of the field, time to crop maturity, and
marketing window, that replanting the insured crop will allow the crop
to attain maturity prior to the calendar date for the end of the
insurance period. It will not be considered practical to replant unless
the replanted acreage can produce at least 75 percent of the approved
yield, and the processor agrees in writing that it will accept the
production from the replanted acreage.
Price election. In lieu of the definition of price election in the
Basic Provisions, the price election will be the base contract price
stated in your processor contract.
Processor. Any business enterprise regularly engaged in canning or
freezing processing sweet corn for human consumption, that possesses all
licenses and permits for processing sweet corn required by the state in
which it operates, and that possesses facilities, or has contractual
access to such facilities, with enough equipment to accept and process
contracted processing sweet corn within a reasonable amount of time
after harvest.
Processor contract. A written agreement between the producer and a
processor, containing at minimum:
(a) The producer's commitment to plant and grow sweet corn, and to
deliver the sweet corn production to the processor;
(b) The processor's commitment to purchase all the production stated
in the processor contract; and
(c) A base contract price.
Multiple contracts with the same processor that specify amounts of
production will be considered as a single processor contract, unless the
contracts are for different types. Your base contract price will be the
weighted average of all applicable base contract prices.
Ton. Two thousand (2,000) pounds avoirdupois.
Unhusked ear weight. Weight of the seed-bearing spike of sweet corn
including the membranous or green outer envelope.
Usable tons. The quantity of sweet corn for which the producer is
compensated or should have been compensated by the processor.
2. Unit Division
(a) For processor contracts that stipulate the amount of production
to be delivered:
(1) In lieu of the definition contained in the Basic Provisions, a
basic unit will consist of all acreage planted to the insured crop in
the county that will be used to fulfill contracts with each processor;
(i) There will be no more than one basic unit for all production
contracted with each processor contract;
(ii) In accordance with section 12, all production from any basic
unit in excess of the amount under contract will be included as
production to count if such production is applied to any other basic
unit for which the contracted amount has not been fulfilled; and
(2) Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable.
(b) For any processor contract that stipulates the number of acres
to be planted, the provisions contained in section 34 of the Basic
Provisions will apply.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one price election percentage for all the
processing sweet corn in the county insured under this policy. The
percentage of the maximum price election you choose for one type will be
applicable to all other types insured under this policy.
(b) The insurance guarantee per acre is expressed as tons of
unhusked ear weight. Any
[[Page 341]]
other measured production will be converted to an unhusked ear weight
equivalent.
(c) The appraised production from bypassed acreage that could have
been accepted by the processor will be included when determining your
approved yield.
(d) Acreage that is bypassed because it was damaged by an insurable
cause of loss will be considered to have a zero yield when determining
your approved yield.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
6. Report of Acreage
In addition to the provisions of section 6 of the Basic Provisions,
you must provide a copy of all processor contracts to us on or before
the acreage reporting date.
7. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the processing sweet corn in the county for which a
premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That is grown under, and in accordance with, the requirements of
a processor contract executed on or before the acreage reporting date
and not excluded from the processor contract at any time during the crop
year; and
(3) That is not (unless allowed by the Special Provisions or by
written agreement):
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume.
(b) You will be considered to have a share in the insured crop if,
under the processor contract, you retain control of the acreage on which
the sweet corn is grown, you are at risk of loss, and the processor
contract provides for delivery of sweet corn under specified conditions
and at a stipulated base contract price.
(c) A commercial sweet corn producer who is also a processor may
establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or
officers of the processor must execute and adopt a resolution that
contains the same terms as an acceptable processor contract. Such
resolution will be considered a processor contract under this policy;
and
(3) Our inspection reveals that the processing facilities comply
with the definition of a processor contained in these Crop Provisions.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final
planting date, to the extent that the majority of producers in the area
would normally not further care for the crop, must be replanted unless
we agree that it is not practical to replant; and
(b) We will not insure any acreage that does not meet the rotation
requirements, if applicable, contained in the Special Provisions.
9. Insurance Period
In lieu of the provisions contained in section 11 of the Basic
Provisions, regarding the end of the insurance period, insurance ceases
at the earlier of:
(a) The date the sweet corn:
(1) Was destroyed;
(2) Should have been harvested but was not harvested;
(3) Was abandoned; or
(4) Was harvested;
(b) The date you harvest sufficient production to fulfill your
processor contract if the processor contract stipulates a specific
amount of production to be delivered;
(c) Final adjustment of a loss; or
(d) Unless otherwise agreed to in writing, the calendar date for the
end of the insurance period in which the sweet corn would normally be
harvested as follows:
(1) September 30 in Malheur County, Oregon, all Idaho counties, and
all Iowa counties;
(2) October 20 in all other Oregon counties, and in all Washington
counties; or
(3) September 20 in all other states.
10. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions:
(a) Insurance is provided only against the following causes of loss
that occur during the insurance period:
(1) Adverse weather conditions, including:
(i) Excessive moisture that prevents harvesting equipment from
entering the field or that prevents the timely operation of harvesting
equipment; and
(ii) Abnormally hot or cold temperatures that cause an unexpected
number of acres over a large producing area to be ready for harvest at
the same time, affecting the timely harvest of a large number of such
acres or the processing of such production is beyond the capacity of the
processor, either of which causes the acreage to be bypassed.
(2) Fire;
[[Page 342]]
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures or as otherwise limited by the
Special Provisions;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of
loss listed in section 10(a)(1) through (7) that occurs during the
insurance period.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure any loss of production due to:
(1) Bypassed acreage because of:
(i) The breakdown or non-operation of equipment or facilities; or
(ii) The availability of a crop insurance payment. We may deny any
indemnity immediately in such circumstance or, if an indemnity has been
paid, require you to repay it to us with interest at any time acreage
was bypassed due to the availability of a crop insurance payment; or
(2) Your failure to follow the requirements contained in the
processor contract.
11. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 of the Basic
Provisions, you must give us notice:
(a) Not later than 48 hours after:
(1) Total destruction of the sweet corn on the unit; or
(2) Discontinuance of harvest on a unit on which unharvested
production remains.
(b) Within 3 days after the date harvest should have started on any
acreage that will not be harvested unless we have previously released
the acreage. You must also provide acceptable documentation of the
reason the acreage was bypassed. Failure to provide such documentation
will result in our determination that the acreage was bypassed due to an
uninsured cause of loss. If the crop will not be harvested and you wish
to destroy the crop, you must leave representative samples of the
unharvested crop for our inspection. The samples must be at least 10
feet wide and extend the entire length of each field in each unit. The
samples must not be destroyed until the earlier of our inspection or 15
days after notice is given to us; and
(c) At least 15 days prior to the beginning of harvest if you intend
to claim an indemnity on any unit, or immediately if damage is
discovered during the 15 day period or during harvest, so that we may
inspect any damaged production. If you fail to notify us and such
failure results in our inability to inspect the damaged production, we
will consider all such production to be undamaged and include it as
production to count. You are not required to delay harvest.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee, by type if applicable;
(2) Multiplying each result of section 12(b)(1) by the respective
price election, by type if applicable;
(3) Totaling the results of section 12(b)(2) if there are more than
one type;
(4) Multiplying the total production to count (see section 12(c)),
for each type if applicable, by its respective price election;
(5) Totaling the results of section 12(b)(4) if there are more than
one type;
(6) Subtracting the results of section 12(b)(4) from the results of
section 12(b)(2) if there is only one type or subtracting the results of
section 12(b)(5) from the result of section 12(b)(3) if there are more
than one type; and
(7) Multiplying the result of section 12(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of type A processing sweet
corn in the unit, with a guarantee of 3.0 tons per acre and a price
election of $50.00 per ton. You are only able to harvest 200 tons. Your
indemnity would be calculated as follows:
(1) 100 acres x 3.0 tons = 300 tons guarantee;
(2) 300 tons x $50.00 price election = $15,000.00 value of
guarantee;
(4) 200 tons x $50.00 price election = $10,000.00 value of
production to count;
(6) $15,000.00 - $10,000.00 = $5,000.00 loss;
(7) $5,000.00 x 100 percent = $5,000.00 indemnity payment.
You also have a 100 percent share in 100 acres of type B processing
sweet corn in the same unit, with a guarantee of 4.0 tons per acre and a
price election of $45.00 per ton. You are only able to harvest 350 tons.
Your total indemnity for both types A and B would be calculated as
follows:
(1) 100 acres x 3.0 tons = 300 tons guarantee for type A, and
100 acres x 4.0 tons = 400 tons guarantee for type B;
(2) 300 tons x $50.00 price election = $15,000.00 value of guarantee
for type A, and
400 tons x $45.00 price election = $18,000.00 value of guarantee for
type B;
[[Page 343]]
(3) $15,000.00 + $18,000.00 = $33,000.00 total value of guarantee;
(4) 200 tons x $50.00 price election = $10,000.00 value of
production to count for type A, and
350 tons x $45.00 price election = $15,750.00 value of production to
count for type B;
(5) $10,000.00 + $15,750.00 = $25,750.00 total value of production
to count;
(6) $33,000.00 - $25,750.00 = $7,250.00 loss;
(7) $7,250.00 loss x 100 percent = $7,250.00 indemnity payment.
(c) The total production to count, specified in tons of unhusked ear
weight, from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us.
(ii) Production lost due to uninsured causes.
(iii) Production on acreage that is bypassed unless the acreage was
bypassed due to an insured cause of loss which resulted in production
which would not be acceptable under the terms of the processor contract.
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested.
(2) All harvested processing sweet corn production from the
insurable acreage. The amount of such production will be:
(i) The usable tons of processing sweet corn shown on the processor
settlement sheet, if available; or
(ii) Determined by dividing the dollar amount paid, payable, or
which should have been paid under the terms of the processor contract
for the quantity of the sweet corn delivered to the processor by the
base contract price per ton; and
(3) All harvested processing sweet corn production from any other
insurable units that have been used to fulfill your processor contract
for this unit.
The total production to count will be expressed as an unhusked ear
weight. Any other measure of production will be converted to an unhusked
ear weight equivalent.
13. Late Planting
A late planting period is not applicable to processing sweet corn
unless allowed by the Special Provisions and you provide written
approval from the processor by the acreage reporting date that it will
accept the production from the late planted acres when it is expected to
be ready for harvest.
14. Prevented Planting
Your prevented planting coverage will be 40 percent of your
production guarantee for timely planted acreage. If you have limited or
additional levels of coverage, as specified in 7 CFR part 400, subpart
T, and pay an additional premium, you may increase your prevented
planting coverage to the levels specified in the actuarial documents.
[62 FR 65342, Dec. 12, 1997, as amended at 76 FR 4804, Jan. 27, 2011; 78
FR 55173, Sept. 10, 2013]
Sec. 457.155 Processing bean crop insurance provisions.
The Processing Bean Crop Insurance Provisions for the 1998 and
succeeding crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Processing Bean Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
[[Page 344]]
1. Definitions
Base contract price. The price stipulated in the processor contract
for the grade factor or sieve size that is designated in the Special
Provisions, if applicable, without regard to discounts or incentives
that may apply.
Broker. A business enterprise that has all the licenses and permits
required by the state in which it operates, and has a long term
agreement in writing with a processor to purchase and deliver processing
beans.
Bypassed acreage. Land on which production is ready for harvest but
the processor elects not to accept such production so it is not
harvested.
Good farming practices. The cultural practices generally in use in
the county for the crop to make normal progress toward maturity and
produce at least the yield used to determine the production guarantee
and are those required by the bean processor contract with the
processing company, and recognized by the National Institute of Food and
Agriculture as compatible with agronomic and weather conditions in the
county.
Harvest. The mechanical picking of bean pods from the vines.
Planted acreage. In addition to the definition contained in the
Basic Provisions, beans must initially be placed in rows far enough
apart to permit mechanical cultivation to be considered planted. Acreage
planted in any other manner will not be insurable unless otherwise
provided by the Special Provisions or by written agreement.
Practical to replant. In lieu of the definition of ``Practical to
replant'' contained in section 1 of the Basic Provisions, practical to
replant is defined as our determination, after loss or damage to the
insured crop, based on factors including, but not limited to, moisture
availability, condition of the field, time to crop maturity, and
marketing window, that replanting the insured crop will allow the crop
to attain maturity prior to the calendar date for the end of the
insurance period. It will not be considered practical to replant unless
the replanted acreage can produce at least 75 percent of the approved
yield, and the processor agrees in writing that it will accept the
production from the replanted acreage.
Processing beans. Lima, snap, or other bean types identified in the
Special Provisions that are grown under a processor contract to be
canned or frozen and sold for human consumption.
Processor. Any business enterprise regularly engaged in canning or
freezing processing beans for human consumption, that possesses all
licenses and permits for processing beans required by the state in which
it operates, and that possesses facilities, or has contractual access to
such facilities, with enough equipment to accept and process the
contracted beans within a reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a
processor, or between the producer and a broker, containing at a
minimum:
(a) The producer's commitment to plant and grow processing beans,
and to deliver the bean production to the processor or broker;
(b) The processor's, or broker's, commitment to purchase all the
production stated in the processor contract; and
(c) A base contract price.
Multiple contracts with the same processor that specify amounts of
production will be considered as a single processor contract unless the
contracts are for different types of processing beans.
Ton. Two thousand (2,000) pounds avoirdupois.
Type. A category of processing beans identified as a type in the
Special Provisions.
2. Unit Division
(a) For any processor contract that stipulates the amount of
production to be delivered:
(1) In lieu of the definition contained in the Basic Provisions, a
basic unit will consist of all acreage planted to the insured crop in
the county that will be used to fulfill contracts with each processor;
(i) There will be no more than one basic unit for all production
contracted with each processor contract;
(ii) In accordance with section 12, all production from any basic
unit in excess of the amount under contract will be included as
production to count if such production is applied to any other basic
unit for which the contracted amount has not been fulfilled; and
(2) Provisions in the Basic Provisions that allow optional units by
section, section equivalent, or FSA farm serial number and by irrigated
and non-irrigated practices are not applicable. Optional units will not
be established.
(b) For any processor contract that stipulates the number of acres
to be planted, in addition to or instead of, establishing optional units
by section, section equivalent or FSA farm serial number, or irrigated
and non-irrigated acreage, optional units may be established by type if
acreage of one type does not continue into acreage of another type in
the same rows or planting pattern.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one price election for all the processing
beans in the county insured under this policy unless the Special
Provisions provide different price elections
[[Page 345]]
by type. The percentage of the maximum price elections you choose for
one type will be applicable to all other types insured under this
policy.
(b) The appraised production from bypassed acreage that could have
been accepted by the processor will be included when determining your
approved yield.
(c) Acreage that is bypassed because it was damaged by an insurable
cause of loss will be considered to have a zero yield when determining
your approved yield.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
6. Report of Acreage
In addition to the provisions of section 6 of the Basic Provisions,
you must provide a copy of all processor contracts to us on or before
the acreage reporting date.
7. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the processing beans in the county for which a
premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are grown under, and in accordance with, the requirements
of a processor contract executed on or before the acreage reporting date
and are not excluded from the processor contract at any time during the
crop year; and
(3) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume.
(b) You will be considered to have a share in the insured crop if,
under the processor contract, you retain control of the acreage on which
the processing beans are grown, you are at risk of loss, and the
processor contract provides for delivery of the processing beans under
specified conditions and at a stipulated base contract price.
(c) A commercial processing bean producer who is also a processor or
broker may establish an insurable interest if the following requirements
are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or
officers of the processor or the broker must execute and adopt a
resolution that contains the same terms as an acceptable processor
contract. Such resolution will be considered a processor contract under
this policy; and
(3) Our inspection reveals that the processing facilities comply
with the definition of a processor contained in these Crop Provisions.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final
planting date, to the extent that the majority of producers in the area
would normally not further care for the crop, must be replanted unless
we agree that it is not practical to replant; and
(b) We will not insure acreage that does not meet any rotation
requirements, if applicable, contained in the Special Provisions.
9. Insurance Period
In lieu of the provisions contained in section 11 of the Basic
Provisions, regarding the end of the insurance period, insurance ceases
at the earlier of:
(a) The date the processing beans:
(1) Were destroyed;
(2) Should have been harvested but were not harvested;
(3) Were abandoned; or
(4) Were harvested;
(b) The date you harvest sufficient production to fulfill your
processor contract if the processor contract stipulates a specific
amount of production to be delivered;
(c) Final adjustment of a loss; or
(d) The date shown below for the end of the insurance period in the
calendar year in which the processing beans would normally be harvested,
unless otherwise agreed to in writing, as follows:
(1) October 30 for all processing beans in the state of Arkansas;
(2) October 15 for all processing beans in the states of Delaware,
Maryland, and New Jersey;
(3) October 5 for all processing beans in the states of Idaho,
Oregon, and Washington;
(4) September 30 for snap beans in the state of New York;
(5) September 20 for snap beans in all other states; or
(6) October 5 for lima beans in all other states.
10. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions:
(a) Insurance is provided only against the following causes of loss
that occur during the insurance period:
(1) Adverse weather conditions, including:
(i) Excessive moisture that prevents the harvesting equipment from
entering the field or that prevents the timely operation of harvesting
equipment; and
[[Page 346]]
(ii) Abnormally hot or cold temperatures that cause an unexpected
number of acres over a large producing area to be ready for harvest at
the same time, affecting the timely harvest of a large number of such
acres or the processing of such production is beyond the capacity of the
processor, either of which causes the acreage to be bypassed.
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease on acreage not planted to processing beans the
previous crop year. (In certain instances, contained in the Special
Provisions or in a written agreement, acreage planted to processing
beans the previous year may be covered. Damage due to insufficient or
improper application of disease control measures is not covered);
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of
loss contained in section 10 (a)(1) through (7) that occurs during the
insurance period.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure any loss of production due to:
(1) Bypassed acreage because of:
(i) The breakdown or non-operation of equipment or facilities; or
(ii) The availability of a crop insurance payment. We may deny any
indemnity immediately in such circumstance or, if an indemnity has been
paid, require you to repay it to us with interest at any time acreage
was bypassed due to the availability of a crop insurance payment; or
(2) Your failure to follow the requirements contained in the
processor contract.
11. Duties in the Event of Damage or Loss
In addition to the notice required by section 14 of the Basic
Provisions, you must give us notice:
(a) Not later than 48 hours after:
(1) Total destruction of the processing beans on the unit; or
(2) Discontinuance of harvest on a unit on which unharvested
production remains.
(b) Within 3 days after the date harvest should have started on any
acreage that will not be harvested unless we have previously released
the acreage. You must also provide acceptable documentation of the
reason the acreage was bypassed. Failure to provide such documentation
will result in our determination that the acreage was bypassed due to an
uninsured cause of loss. If the crop will not be harvested and you wish
to destroy the crop, you must leave representative samples of the
unharvested crop for our inspection. The samples must be at least 10
feet wide and extend the entire length of each field in each unit. The
samples must not be destroyed until the earlier of our inspection or 15
days after notice is given to us; and
(c) At least 15 days prior to the beginning of harvest if you intend
to claim an indemnity on any unit, or immediately if damage is
discovered during the 15 day period or during harvest. If you fail to
notify us and such failure results in our inability to inspect the
damaged production, we will consider all such production to be undamaged
and include it as production to count. You are not required to delay
harvest.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee, by type if applicable;
(2) Multiplying each result of section 12(b)(1) by the respective
price election, by type if applicable;
(3) Totaling the results of section 12(b)(2) if there are more than
one type;
(4) Multiplying the total production to count (see section 12(c)),
for each type if applicable, by its respective price election;
(5) Totaling the results of section 12(b)(4) if there are more than
one type;
(6) Subtracting the results of section 12(b)(4) from the results of
section 12(b)(2) if there is only one type or subtracting the results of
section 12(b)(5) from the result of section 12(b)(3) if there are more
than one type; and
(7) Multiplying the result of section 12(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of snap type processing
beans in the unit, with a guarantee of 3.0 tons per acre and a price
election of $110.00 per ton. You are only able to harvest 200 tons. Your
indemnity would be calculated as follows:
(1) 100 acres x 3.0 tons = 300 tons guarantee;
(2) 300 tons x $110.00 price election = $33,000.00 value of
guarantee;
(3) 200 tons x $110.00 price election = $22,000.00 value of
production to count;
(4) $33,000.00 - $22,000.00 = $11,000.00 loss; and
(5) $11,000.00 x 100 percent = $11,000.00 indemnity payment.
You also have a 100 percent share in 100 acres of lima type
processing beans in the same unit, with a guarantee of 1.0 ton per
[[Page 347]]
acre and a price election of $225.00 per ton. You are only able to
harvest 75 tons. Your total indemnity for both snap and lima types
processing beans would be calculated as follows:
(1) 100 acres x 3.0 tons = 300 tons guarantee for the snap type, and
100 acres x 1.0 ton = 100 tons guarantee for the lima type;
(2) 300 tons x $110.00 price election = $33,000.00 value of
guarantee for the snap type, and 100 tons x $225.00 price election =
$22,500.00 value of guarantee for the lima type;
(3) $33,000.00 + $22,500.00 = $55,500.00 total value of guarantee;
(4) 200 tons x $110.00 price election = $22,000.00 value of
production to count for the snap type, and 75 tons x $225.00 price
election = $16,875.00 value of production to count for the lima type;
(5) $22,000.00 + $16,875.00 = $38,875.00 total value of production
to count;
(6) $55,500.00 - $38,875.00 = $16,625.00 loss; and
(7) $16,625.00 loss x 100 percent = $16,625.00 indemnity payment.
(c) The total production to count, specified in tons, from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us.
(ii) Production lost due to uninsured causes.
(iii) Production on acreage that is bypassed unless the acreage was
bypassed due to an insured cause of loss which resulted in production
which would not be acceptable under the terms of the processor contract.
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested.
(2) All harvested processing bean production from the insurable
acreage. The amount of such production will be:
(i) The usable tons of processing beans shown on the processor
settlement sheet, if available; or
(ii) Determined by dividing the dollar amount paid, payable, or
which should have been paid under the terms of the processor contract
for the quality and quantity of beans to be delivered to the processor
by the base contract price per ton; and
(3) All harvested processing bean production from any other
insurable units that have been used to fulfill your processor contract
for this unit.
13. Late Planting
A late planting period is not applicable to processing beans unless
allowed by the Special Provisions and you provide written approval from
the processor by the acreage reporting date that it will accept the
production from the late planted acres when it is expected to be ready
for harvest.
14. Prevented Planting
Your prevented planting coverage will be 40 percent of your
production guarantee for timely planted acreage. If you have limited or
additional levels of coverage, as specified in 7 CFR part 400, subpart
T, and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[62 FR 58625, Oct. 30, 1997, as amended at 62 FR 65176, Dec. 10, 1997;
76 FR 4805, Jan. 27, 2011]
Sec. Sec. 457.156-457.157 [Reserved]
Sec. 457.158 Apple crop insurance provisions.
The apple crop insurance provisions for the 2011 and succeeding crop
years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
[[Page 348]]
Apple Crop Insurance Provisions
1. Definitions
Apple production. All fresh apple production and processing apple
production from insurable acreage.
Area A. A geographic area that includes Montana, Wyoming, Utah, New
Mexico and all states west thereof.
Area B. A geographic area that includes all states not included in
Area A, except Colorado.
Area C. Colorado.
Bin. A container that contains a minimum of 875 pounds of apples or
another quantity as designated in the Special Provisions.
Box. A container that contains 35 pounds of apples or another
quantity as designated in the Special Provisions.
Bushel. In all states except Colorado, 42 pounds of apples. In
Colorado, 40 pounds of apples.
Damaged apple production.
(1) With respect to losses calculated under section 12 only, the
percentage of fresh or processing apple production that fails to grade
U.S. No. 1 Processing or better in accordance with the grade standards
due to an insurable cause of loss; or
(2) With respect to losses calculated under section 14, the
percentage of fresh apple production that fails to grade U.S. Fancy or
better in accordance with the grade standards due to an insurable cause
of loss.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper, buyer, or broker. Examples of
direct marketing include selling through an on-farm or roadside stand,
or a farmer's market, and permitting the general public to enter the
field for the purpose of picking all or a portion of the crop.
Fresh apple production. (1) Apples:
(i) That are sold, or could be sold, for human consumption without
undergoing any change in the basic form, such as peeling, juicing,
crushing, etc.;
(ii) From acreage that is designated as fresh apples on the acreage
report;
(iii) That follow the recommended cultural practices generally in
use for fresh apple acreage in the area in a manner generally recognized
by agricultural experts; and
(iv) From acreage that you certify, and, if requested by us provide
verifiable records to support, that at least 50 percent of the
production from acreage reported as fresh apple acreage from each unit,
was sold as fresh apples in one or more of the four most recent crop
years.
(2) Acreage with production not meeting all the requirements above
must be designated on the acreage report as processing apple production.
Grade standards. The United States Standards for Grades of Apples,
the United States Standards for Grades of Apples for Processing, or such
other standards contained in the Special Provisions.
Harvest. The picking of mature apples from the trees or collecting
of mature apples from the ground. Apples collected from the ground that
cannot be sold for human consumption will not be considered harvested.
Marketable. Apple production that is not damaged apple production.
Mature. Apples defined as ``mature'' under the applicable grade
standards.
Pounds. Sixteen (16) ounces avoirdupois.
Processing apple production. Apples from insurable acreage failing
to meet the insurability requirements for fresh apple production that
are:
(1) Sold, or could be sold for the purpose of undergoing a change to
the basic structure such as peeling, juicing, crushing, etc.; or
(2) From acreage designated as processing apples on the acreage
report.
Production guarantee (per acre). The quantity of apples in boxes or
bushels determined by multiplying the approved APH yield per acre by the
coverage level percentage you elect. If the production of apples has
been measured in bins, the amount must be converted to boxes or bushels.
Russeting. A defect on the surface of the apple as described in the
grade standards.
Sunburn. A defect as described in the grade standards.
Type. A category of apples as designated in the Special Provisions.
2. Unit Division
In addition to the requirements of section 34(b) of the Basic
Provisions, optional units may be established if each optional unit is:
(a) Located on non-contiguous land; or
(b) By type as specified in the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one coverage level for all fresh apple
acreage and only one coverage level for all processing apple acreage.
For example, if you choose the 55 percent coverage level for all your
fresh apple acreage (i.e., fresh, varietal group types), you may choose
the 75 percent coverage level for all your processing apple acreage.
However, if you elect the Catastrophic Risk Protection (CAT) level of
insurance for fresh apple acreage or processing apple acreage, the CAT
level of coverage will be applicable to all insured apple acreage in the
county. If you only have fresh apple acreage designated on your acreage
report and processing apple acreage is added after the sales closing
date,
[[Page 349]]
we will assign a coverage level equal to the coverage level you selected
for your fresh apple acreage. If you only have processing apple acreage
designated on your acreage report and fresh apple acreage is added after
the sales closing date, we will assign a coverage level equal to the
coverage level you selected for your processing apple acreage.
(b) You may select only one price election for all the apples in the
county insured under this policy unless the Special Provisions provide
different price elections by type, in which case you may select one
price election for each apple type designated in the Special Provisions.
The price elections you choose for each type must have the same
percentage relationship to the maximum price offered by us for each
type. For example, if you choose 100 percent of the maximum price
election for one type, you must also choose 100 percent of the maximum
price election for all other types.
(c) You must report, by the production reporting date designated in
section 3 of the Basic Provisions, by type, if applicable:
(1) Any event or action that could impact the yield potential of the
insured crop including interplanted perennial crop, removal of trees,
any damage, change in practices, or any other circumstance that may
reduce the expected yield upon which the insurance guarantee is based,
and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and any time the planting pattern of such
acreage has changed:
(i) The age and type of the interplanted crop, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your approved yield.
(d) We will reduce the yield used to establish your production
guarantee, as necessary, based on our estimate of the effect of any
situation listed in sections 3(c)(1) through (c)(4). If the situation
occurred:
(1) Before the beginning of the insurance period, the yield used to
establish your production guarantee will be reduced for the current crop
year regardless of whether the situation was due to an insured or
uninsured cause of loss. If you fail to notify us of any circumstance
that may reduce your yields from previous levels, we will reduce the
yield used to establish your production guarantee at any time we become
aware of the circumstance;
(2) Or may occur after the beginning of the insurance period and you
notify us by the production reporting date, the yield used to establish
your production guarantee will be reduced for the current crop year only
if the potential reduction in the yield used to establish your
production guarantee is due to an uninsured cause of loss; or
(3) Or may occur after the beginning of the insurance period and you
fail to notify us by the production reporting date, production lost due
to uninsured causes equal to the amount of the reduction in the yield
used to establish your production guarantee will be applied in
determining any indemnity (see section 12(c)(1)(ii)). We will reduce the
yield used to establish your production guarantee for the subsequent
crop year.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is October 31 preceding the cancellation date for California
and August 31 preceding the cancellation date for all other states.
5. Cancellation and Termination Dates
(a) In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are January 31 in California and
November 20 in all other states.
(b) If, in accordance with the terms of the policy, your apple
policy is canceled or terminated by us for any crop year after insurance
attached for that crop year, but on or before the cancellation and
termination dates, whichever is later, insurance will be considered not
to have attached for that crop year and no premium, administrative fee,
or indemnity will be due for such crop year.
(c) We may not cancel your policy when an insured cause of loss has
occurred after insurance attached, but prior to the cancellation date.
However, your policy can be terminated if a cause for termination
contained in sections 2 or 27 of the Basic Provisions exists.
6. Report of Acreage.
In addition to the requirements contained in section 6 of the Basic
Provisions, you must report and designate all acreage by type by the
acreage reporting date. Any acreage not qualifying for fresh apple
production is not eligible for the Optional Coverage for Fresh Fruit
Quality Adjustment option contained in section 14 of these Crop
Provisions. If you designate fresh apple acreage on the acreage report,
you are certifying at least 50 percent of the production from acreage
reported as fresh apple acreage, by unit, was sold as fresh apples in
one or more of the four most recent crop years in accordance with the
definition of ``fresh apple production'' and that you have the records
to support such production.
[[Page 350]]
7. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all apples in the county for which a premium rate is
provided by the actuarial table:
(a) In which you have a share;
(b) That are grown on tree varieties that are adapted to the area
and have, in at least one of the previous four years, produced:
(1) 10 bins of apples per acre in Area A;
(2) 150 bushels of apples per acre in Area B; or
(3) 200 bushels of apples per acre in Area C;
(c) That are grown in an orchard that, if inspected, is considered
acceptable by us; and
(d) That are grown for:
(1) Fresh apple production; or
(2) Processing apple production.
8. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions that
prohibit insurance from attaching to a crop planted with another crop,
apples interplanted with another perennial crop are insurable unless we
inspect the acreage and determine that it does not meet the requirements
contained in your policy.
9. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) For the year of application, coverage begins on February 1 of
the calendar year the insured crop normally blooms in California and
November 21 of the calendar year prior to the calendar year the insured
crop normally blooms in all other States. Notwithstanding the previous
sentence, if your application is received by us after January 12 but
prior to February 1 in California, or after November 1 but prior to
November 21 in all other States, insurance will attach on the 20th day
after your properly completed application is received in our local
office, unless we inspect the acreage during the 20-day period and
determine that it does not meet insurability requirements. You must
provide any information that we require for the crop or to determine the
condition of the apple acreage.
(2) For each subsequent crop year that the policy remains
continuously in force, coverage begins on the day immediately following
the end of the insurance period for the prior crop year. Policy
cancellation that results solely from transferring an existing policy to
a different insurance provider for a subsequent crop year will not be
considered a break in continuous coverage.
(3) The calendar date for the end of the insurance period for each
crop year is November 5, or such other date as specified in the Special
Provisions.
(4) Notwithstanding the provisions in this section, coverage will
not be considered to have begun for a crop year if the policy is
canceled or terminated in accordance with section 5(b).
(b) In addition to the provisions of section 11 of the Basic
Provisions:
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period. There will be
no coverage of any insurable interest acquired after the acreage
reporting date.
(2) If you relinquish your insurable share on any insurable acreage
of apples on or before the acreage reporting date for the crop year,
insurance will not be considered to have attached to, and no premium or
indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(3) If you relinquish your insurable share on any insurable acreage
of apples after the acreage reporting date for the crop year, insurance
coverage will be provided for any loss due to an insurable cause of loss
that occurred prior to the date that you relinquished your insurable
share and the whole premium will be due for such acreage for that crop
year.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period and result in damaged apple
production:
(1) Adverse weather conditions;
(2) Fire unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the orchard;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Earthquake;
(6) Volcanic eruption;
(7) Failure of the irrigation water supply, if caused by an insured
peril that occurs during the insurance period;
(8) Wildlife; and
[[Page 351]]
(9) All other natural causes of loss that cannot be prevented,
including, but not limited to, hail, wind, excess sun causing sunburn,
and frost and freeze causing russeting.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to your inability to market the apples for any reason
other than actual physical damage from an insurable cause specified in
this section. For example, we will not pay you an indemnity if you are
unable to market due to quarantine, boycott, or refusal of any person to
accept production.
11. Duties in the Event of Damage or Loss
(a) In accordance with the requirements of section 14 of the Basic
Provisions, you must leave representative samples in accordance with our
procedures.
(b) In addition to the requirements of section 14 of the Basic
Provisions, the following will apply:
(1) You must notify us at least 3 days prior to the date harvest
should have started if the crop will not be harvested.
(2) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing. We will conduct an appraisal
that will be used to determine your production to count for production
that is sold by direct marketing. If damage occurs after this appraisal,
we will conduct an additional appraisal. These appraisals, and any
acceptable records provided by you, will be used to determine your
production to count. Failure to give timely notice that production will
be sold by direct marketing will result in an appraised amount of
production to count of not less than the production guarantee per acre
if such failure results in our inability to make the required appraisal.
(3) If you intend to claim an indemnity on any unit, you must notify
us at least 15 days prior to the beginning of harvest, or immediately if
damage is discovered during harvest. You must not sell or dispose of the
damaged crop until after we have given you written consent to do so. If
you fail to meet the requirements of this section and such failure
results in our inability to inspect the damaged production, all such
production will be considered undamaged and included as production to
count.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for
which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim on any unit by:
(1) Multiplying the insured acreage by its respective production
guarantee, by type as applicable;
(2) Multiplying each result in section 12(b)(1) by the respective
price election and by the percent of price election;
(3) Totaling the results in section 12(b)(2) if there are more than
one type;
(4) Multiplying the total production to count (see section 12(c)),
for each type as applicable, by the respective price election and by the
percent of price election;
(5) Totaling the results in section 12(b)(4), if there are more than
one type;
(6) Subtracting the total in section 12(b)(5) from the total in
section 12(b)(3); and
(7) Multiplying the result in section 12(b)(6) by your share.
Basic Coverage Example:
You have a 100 percent share in one basic unit with 10 acres of
fresh apples and 5 acres of processing apples designated on your acreage
report, with a 600 bushel per acre production guarantee for both fresh
and processing apples, and you select 100 percent of the price election
on a price election of $9.10 per bushel for fresh apples and $2.50 per
bushel for processing apples. You harvest 5,000 bushels of fresh apples
and 1,000 bushels of processing apples, all grading U.S. No. 1
Processing or better. Your indemnity will be calculated as follows:
A. 10 acres x 600 bushels = 6,000-bushel production guarantee of
fresh apples;
5 acres x 600 bushels = 3,000-bushel production guarantee of
processing apples;
B. 6,000-bushel production guarantee x $9.10 price election x 100
percent of price election = $54,600 value of production guarantee for
fresh apples;
3,000-bushel production guarantee x $2.50 price election x 100
percent of price election = $7,500 value of production guarantee for
processing apples;
C. $54,600 value of production guarantee for fresh apples + $7,500
value of production guarantee for processing apples = $62,100.00 total
value of the production guarantee;
D. 5,000 bushels of fresh apple production to count x $9.10 price
election x 100 percent of price election = $45,500 value of fresh apple
production to count;
1,000 bushels of processing apple production to count x $2.50 price
election x 100 percent of price election = $2,500 value of processing
apple production to count;
E. $45,500 value of fresh apple production to count + $2,500 value
of processing apple production to count = $48,000 total value of
production to count;
[[Page 352]]
F. $62,100 total value of the production guarantee - $48,000 total
value of production to count = $14,100.00 value of loss; and
G. $14,100 value of loss x 100 percent share = $14,100 indemnity
payment.
[End of Example]
(c) The total production to count (in boxes or bushels) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the
requirements contained in section 11;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested apple production that would be marketable if
harvested; and
(iv) Potential marketable apple production on insured acreage that
you intend to abandon or no longer care for, if you and we agree on the
appraised amount of production. Upon such agreement, the insurance
period for that acreage will end. If you do not agree with our
appraisal, we may defer the claim only if you agree to continue to care
for the crop. We will then make another appraisal when you notify us of
further damage or that harvest is general in the area unless you
harvested the crop, in which case we will use the harvested production.
If you do not continue to care for the crop, our appraisal made prior to
deferring the claim will be used to determine the production to count;
and
(2) All harvested marketable production from the insurable acreage.
(d) Any apple production not graded or appraised prior to the
earlier of the time apples are placed in storage or the date the apples
are delivered to a packer, processor, or other handler will not be
considered damaged apple production and will be considered production to
count.
13. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
14. Optional Coverage for Fresh Fruit Quality Adjustment
(a) In the event of a conflict between the Apple Crop Insurance
Provisions and this option, this option will control. Insureds who
select this option cannot receive less than the indemnity due under
section 12.
(b) In return for payment of the additional premium designated in
the actuarial documents, this option provides for quality adjustment of
fresh apple production as follows:
(1) To be eligible for this option, you must have elected to insure
your apples at the additional coverage level. If you elect Catastrophic
Risk Protection (CAT) after this option is effective, it will be
considered as notice of cancellation of this option by you.
(2) You must elect this option on or before the sales closing date
for the initial crop year for which you wish to insure your apples under
this option. This option will continue in effect until canceled by
either you or us for any succeeding crop year by written notice to the
other party on or before the cancellation date.
(3) This option will apply to all your apple acreage designated in
your acreage report as grown for fresh apple production and that meets
the insurability requirements specified in the Apple Crop Insurance
Provisions, except any acreage specifically excluded by the actuarial
documents. Any acreage designated in your acreage report as grown for
processing apple production is not eligible for coverage under this
option.
(4) In lieu of sections 12(c)(1)(iii), (iv) and (2), the production
to count will include all appraised and harvested production from all of
the fresh apple acreage in the unit, adjusted in accordance with this
option.
(5) If appraised or harvested fresh apple production for the block
or unit, as applicable, is damaged to the extent that more than 20
percent of the apple production does not grade U.S. Fancy or better the
following adjustments to the production to count will apply:
(i) Fresh apple production to count with 21 percent through 40
percent damaged apple production will be reduced 2 percent for each full
one percent in excess of 20 percent.
(ii) Fresh apple production to count with 41 percent through 50
percent damaged apple production will be reduced 40 percent plus an
additional 3 percent for each full one percent in excess of 40 percent.
(iii) Fresh apple production to count with 51 percent through 64
percent damaged apple production will be reduced 70 percent plus an
additional 2 percent for each full one percent in excess of 50 percent.
(iv) Fresh apple production to count with 65 percent or more damaged
apple production will not be considered production to count.
(v) Notwithstanding sections 14(b)(5)(i) through (iv), if you sell
any of your fresh apple production as U.S. Fancy or better, all such
sold production will be included as production to count under this
option.
(c) Any apple production not graded or appraised prior to the
earlier of the time apples are placed in storage or the date the apples
are delivered to a packer, processor, or other handler will not be
considered damaged apple production and will be considered production to
count under this option.
[[Page 353]]
(d) Any adjustments that reduce your production to count under this
option will not be applicable when determining production to count for
APH purposes.
Optional Coverage for Fresh Fruit Quality Adjustment Example:
You have a 100 percent share in 10 acres of fresh apples designated
on your acreage report, with a 600 bushel per acre guarantee, and you
select 100 percent of the price election on a price election of $9.10
per bushel. You harvest 5,000 bushels of apples from your designated
fresh apple acreage, but only 2,650 of those bushels grade U.S. Fancy or
better. Assuming you do not sell any of your fresh apple production as
U.S. Fancy or better, your indemnity would be calculated as follows:
A. 10 acres x 600 bushels per acre = 6,000-bushel production
guarantee of fresh apples;
B. 6,000-bushel production guarantee of fresh apples x $9.10 price
election x 100 percent of price election = $54,600 value of production
guarantee for fresh apple acreage;
C. The value of the fresh apple production to count is determined as
follows:
i. 5,000 bushels harvested - 2,650 bushels that graded U.S. Fancy or
better = 2,350 bushels of fresh apple production not grading U.S. Fancy
or better;
ii. 2,350/5,000 = 47 percent of fresh apple production not grading
U.S. Fancy or better;
iii. In accordance with section 14(b)(5)(ii): 47 percent - 40
percent = 7 percent in excess of 40 percent;
iv. 7 percent x 3 = 21 percent;
v. 40 percent + 21 percent = 61 percent;
vi. 5,000 bushels harvested x .61 (61 percent) = 3,050 bushels of
fresh apple production not grading U.S. Fancy or better;
vii. 5,000 bushels harvested - 3,050 bushels of fresh apple
production not grading U.S. Fancy or better = 1,950 bushels of adjusted
fresh apple production to count;
viii. 1,950 bushels of adjusted fresh apples production to count x
$9.10 price election x 100 percent of price election = $17,745 value of
fresh apple production to count;
D. $54,600 value of production guarantee for fresh apples - $17,745
value of fresh apple production to count = $36,855 value of loss;
E. $36,855 value of loss x 100 percent share = $36,855 indemnity
payment.
[End of Example]
[63 FR 17054, Apr. 8, 1998, as amended at 65 FR 47839, Aug. 4, 2000; 69
FR 52591, Aug. 27, 2004; 69 FR 53500, Sept. 1, 2004; 69 FR 62803, Oct.
28, 2004; 75 FR 52231, Aug. 25, 2010]
Sec. 457.159 Stonefruit crop insurance provisions.
The Stonefruit Crop Insurance Provisions for the 2011 and succeeding
crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Stonefruit Crop Insurance Provisions
1. Definitions
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as wholesaler,
retailer, packer, processor, shipper, or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the field for the
purpose of picking all or a portion of the crop.
Grade standards. The United States Standards for Grades of Peaches,
the United States Standards for Grades of Nectarines, the United States
Standards for Grades of Apricots, and the United States Standards for
Grades of Fresh Plums and Prunes, or other such standards specified in
the Special Provisions.
Graft. To unite a shoot or bud with a rootstock in accordance with
recommended practices to form a living union.
Harvest. The physical removal of mature stonefruit from the tree
either by hand or machine.
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Lug. A container of fresh stonefruit of specified weight. Lugs of
varying sizes will be converted to standard lug equivalents on the basis
of the following average net pounds of packed fruit, or as specified in
the Special Provisions:
------------------------------------------------------------------------
Pounds
Crop per lug
------------------------------------------------------------------------
Fresh Apricots............................................... 24
Fresh Nectarines............................................. 25
Fresh Freestone Peaches...................................... 25
Fresh Plums.................................................. 28
------------------------------------------------------------------------
Weight for Processing Apricots, Processing Cling Peaches, and
Processing Freestone Peaches is specified in tons.
Marketable. Stonefruit production that meets or exceeds the quality
standards for U.S. No. 1 in accordance with the applicable
[[Page 354]]
grade standards or other standards as specified in the Special
Provisions, or if stonefruit production fails to meet the applicable
grade standards, stonefruit production that is accepted by a packer,
processor or other handler.
Processor. A business enterprise regularly engaged in processing
fruit for human consumption that possesses all licenses and permits for
processing fruit required by the state in which it operates, and that
possesses facilities, or has contractual access to such facilities, with
enough equipment to accept and process contracted fruit within a
reasonable amount of time after harvest.
Stonefruit. Any of the following crops grown for fresh market or
processing:
(a) Fresh Apricots;
(b) Fresh Freestone Peaches;
(c) Fresh Nectarines;
(d) Fresh Plums;
(e) Processing Apricots;
(f) Processing Cling Peaches;
(g) Processing Freestone Peaches; and
(h) Other crops listed in the Special Provisions.
Ton. Two thousand (2,000) pounds avoirdupois.
Type. A category of a stonefruit crop with similar characteristics
that are grouped for insurance purposes, as listed in the Special
Provisions.
2. Unit Division
In lieu of the provisions of section 34 of the Basic Provisions that
allow optional units by section, section equivalent, or FSA farm serial
number and by irrigated and non-irrigated practices, optional units will
only be allowed as stated herein or by written agreement.
(a) Optional Units on Acreage Located on Non-contiguous Land:
Optional units may be established if each optional unit is located on
non-contiguous land.
(b) Optional Units by Type: Optional units may be established by
type if allowed by the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one price election and coverage level for
each crop grown in the county and listed in the Special Provisions that
is insured under this policy. If separate price elections are available
by type of a crop, the price elections you choose for each type must
have the same percentage relationship to the maximum price offered by us
for each type. For example, if you choose 100 percent of the maximum
price election for one type of cling peach, you must choose 100 percent
of the maximum price election for all other types of cling peaches.
(b) You must report, by the production reporting date designated in
section 3 of the Basic Provisions, by type, if applicable, for each
stonefruit crop:
(1) Any damage, removal of trees, change in practices, or any other
circumstance that may reduce the expected yield below the yield upon
which the insurance guarantee is based, and the number of affected
acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with
another perennial crop, and any time the planting pattern of such
acreage is changed:
(i) The age of the interplanted crop, and type if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your approved yield.
(c) We will reduce the yield used to establish your production
guarantee, as necessary, based on our estimate of the effect of any
situation listed in sections 3(b)(1) through (b)(4). If the situation
occurred:
(1) Before the beginning of the insurance period, the yield used to
establish your production guarantee will be reduced for the current crop
year regardless of whether the situation was due to an insured or
uninsured cause of loss. If you fail to notify us of any circumstance
that may reduce your yields from previous levels, we will reduce the
yield used to establish your production guarantee at any time we become
aware of the circumstance;
(2) Or may occur after the beginning of the insurance period and you
notify us by the production reporting date, the yield used to establish
your production guarantee will be reduced for the current crop year only
if the potential reduction in the yield used to establish your
production guarantee is due to an uninsured cause of loss; or
(3) Or may occur after the beginning of the insurance period and you
fail to notify us by the production reporting date, production lost due
to uninsured causes equal to the amount of the reduction in yield used
to establish your production guarantee will be applied in determining
any indemnity (see section 11(c)(1)(ii)). We will reduce the yield used
to establish your production guarantee for the subsequent crop year.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is October 31 for California and August 31 preceding the
cancellation date for all other states, or as specified in the Special
Provisions.
[[Page 355]]
5. Cancellation and Termination Dates.
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are January 31 for California and
November 20 for all other states, or as specified in the Special
Provisions.
6. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all acreage of each stonefruit crop you elect to insure,
that is grown in the county, and for which premium rates are provided in
the actuarial documents:
(a) In which you have a share;
(b) That is grown on trees that:
(1) Were commercially available when the trees were set out or have
subsequently become commercially available;
(2) Are adapted to the area;
(3) Are grown on root stock that is adapted to the area;
(4) Are in compliance with the applicable State's Tree Fruit
Agreement or related crop advisory board for the state (for each insured
crop and type), when such regulations exist;
(5) Have produced at least 200 lugs of fresh market production per
acre, or at least 2.2 tons per acre for processing crops, in at least
one of the four most recent actual production history crop years, unless
we inspect such acreage and give our approval in writing;
(6) Have, after being set out or grafted, reached at least the fifth
growing season. However, we may give our approval in writing to insure
acreage that has not reached this age if it meets the requirements of
6(b)(5); and
(7) Are grown in an orchard that, if inspected, is considered
acceptable by us.
7. Insurable Acreage
In lieu of the provisions of section 9 of the Basic Provisions that
prohibit insurance attaching to a crop planted with another crop,
stonefruit interplanted with another perennial crop is insurable unless
we inspect the acreage and determine that it does not meet the
requirements for insurability contained in your policy.
8. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) Coverage begins on February 1 in California and November 21 for
all other states of each crop year, except that for the year of
application, if your application is received after January 22 but prior
to February 1 in California or after November 11 but prior to November
21 in all other states, insurance will attach on the 10th day after your
properly completed application is received in our local office, unless
we inspect the acreage during the 10 day period and determine that it
does not meet insurability requirements. You must provide any
information that we require for the crop or to determine the condition
of the orchard.
(2) The calendar date for the end of the insurance period for each
crop year is:
(i) July 31 for all apricots; and
(ii) September 30 for all nectarines and peaches;
(iii) In all states except California, September 30 for all fresh
plums;
(iv) In California only, October 20 for all fresh plums; or
(v) As otherwise provided for specific counties or types in the
Special Provisions.
(b) In addition to the provisions of section 11 of the Basic
Provisions:
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date of acquisition.
(2) If you lose or relinquish your insurable share on any insurable
acreage of stonefruit on or before the acreage reporting date for the
crop year and if the acreage was insured by you the previous crop year,
insurance will not be considered to have attached to, and no premium or
indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(c) For each subsequent crop year that the policy remains
continuously in force, coverage begins on the day immediately following
the end of the insurance period for the prior crop year. Policy
cancellation that results solely from transferring to a different
insurance provider for a subsequent crop year will not be considered a
break in continuous coverage.
(d) If your stonefruit policy is canceled or terminated for any crop
year, in accordance with the terms of the policy, after insurance
attached for that crop year but on or before the cancellation and
termination dates, whichever is the later, insurance will not be
considered to have attached for that crop year and no premium,
administrative fee, or indemnity will be due for such crop year.
9. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions;
[[Page 356]]
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the orchard;
(3) Wildlife;
(4) Earthquake;
(5) Volcanic eruption; or
(6) Failure of the irrigation water supply, if due to a cause of
loss contained in sections 9(a)(1) through (5) that occurs during the
insurance period.
(b) In addition to the causes of loss excluded by section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to:
(1) Disease or insect infestation, unless adverse weather:
(i) Prevents the proper application of control measures or causes
properly applied control measures to be ineffective; or
(ii) Causes disease or insect infestation for which no effective
control mechanism is available;
(2) Split pits regardless of cause; or
(3) Inability to market the insured crop for any reason other than
actual physical damage from an insurable cause of loss specified in this
section. For example, we will not pay you an indemnity if you are unable
to market due to quarantine, boycott, or refusal of any person to accept
production.
10. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 of the Basic
Provisions, the following will apply:
(a) You must notify us within 3 days after the date harvest should
have started if the insured crop will not be harvested.
(b) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing. We will conduct an appraisal
that will be used to determine your production to count for production
that is sold by direct marketing. If damage occurs after this appraisal,
we will conduct an additional appraisal. These appraisals, and any
acceptable records provided by you, will be used to determine your
production to count. Failure to give timely notice that production will
be sold by direct marketing will result in an appraised amount of
production to count of not less than the production guarantee per acre
if such failure results in our inability to make the required appraisal.
(c) In addition to section 14 of the Basic Provisions, if you intend
to claim an indemnity on any unit, you must give us notice at least 15
days prior to the beginning of harvest. You must not destroy the damaged
crop until after we have given you written consent to do so. If you fail
to notify us and such failure results in our inability to inspect the
damaged production, we may consider all such production to be undamaged
and include it as production to count.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each type by its respective
production guarantee;
(2) Multiplying each result of section 11(b)(1) by the respective
price election for the type and by the percent of the price election;
(3) Totaling the results of section 11(b)(2) (if there is only one
type, the result of (3) will be the same as the result of (2));
(4) Multiplying the total production to count (see section 11(c)),
for each type, by the respective price election and by the percent of
the price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the result of section 11(b)(5) from the result of
section 11(b)(3) (if there is only one type, the result of (6) will be
the same as the result of (5)); and
(7) Multiplying the result of section 11(b)(6) by your share.
Scenario 1:
You select 75 percent coverage level and 100 percent of the price
election on 50.0 acres of Type A stonefruit with 100 percent share in
the unit. The production guarantee is 500.0 lugs per acre and the price
election is $6.00 per lug. You harvest 5,000 lugs. Your indemnity would
be calculated as follows:
(1) 50.0 acres x 500.0 lugs = 25,000-lug production guarantee;
(2) 25,000 lugs x $6.00 price election x 100 percent of the price
election = $150,000 value of production guarantee;
(4) 5,000 harvested lugs x $6.00 price election x 100 percent of the
price election = $30,000 value of production to count;
(6) $150,000-$30,000 = $120,000 loss; and
(7) 120,000 x 1.000 share = $120,000 indemnity payment.
Scenario 2:
In addition to the above information in Scenario 1, you have an
additional 50.0 acres of Type B stonefruit with 100 percent share in the
unit. The production guarantee is 300.0 lugs per acre and the price
election is $3.00 per lug. You harvest 3,000 lugs. Your indemnity would
be calculated as follows:
(1) 50.0 acres x 500.0 lugs Type A = 25,000-lug guarantee; and 50.0
acres x 300.0 lugs Type B = 15,000-lug guarantee;
(2) 25,000 lugs x $6.00 price election x 100 percent of the price
election = $150,000 value
[[Page 357]]
of guarantee for Type A; and 15,000 lugs x $3.00 price election x 100
percent of the price election = $45,000 value of guarantee for Type B;
(3) $150,000 + $45,000 = $195,000 total value of production
guarantee;
(4) 5,000 harvested lugs Type A x $6.00 price election x 100 percent
of the price election = $30,000 value of production to count; and 3,000
harvested lugs Type B x $3.00 price election x 100 percent of the price
election = $9,000 value of production to count;
(5) $30,000 + $9,000 = $39,000 total value of production to count;
(6) $195,000-$39,000 = $156,000 total loss; and
(7) $156,000 loss x 1.000 share = $156,000 indemnity payment.
(c) The total production to count (in lugs or tons) from all
insurable acres on a unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the
requirements contained in section 10;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production that would be marketable if harvested;
and
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the insured crop. We
will then make another appraisal when you notify us if any further
damage or that harvest is general in the area unless you harvested the
crop. If you harvest the crop we will use the harvested production. If
you do not continue to care for the crop, our appraisal made prior to
deferring the claim will be used to determine the production to count;
and
(2) All harvested production from the insurable acreage.
(3) The quantity of harvested production will be reduced if the
following conditions apply:
(i) The value of the damaged production is less than 75 percent of
the marketable value of undamaged production due to an insured cause of
loss; and
(ii) For stonefruit insured as fresh fruit only, the stonefruit
either is packed and sold as fresh fruit and meets only the utility
grade requirements of the applicable grade standards, or fails to meet
the applicable grade standards but is or could be sold for any use other
than fresh packed stonefruit.
(4) Harvested fresh or processing stonefruit production that is
eligible for quality adjustment as specified in section 11(c)(3) will be
reduced as follows:
(i) When packed and sold as fresh fruit or when insured as a
processing crop, by dividing the value per lug or ton of marketable
production by the highest price election for the same type and
multiplying the result (not to exceed 1.00) by the quantity of such
production; or
(ii) For all other fresh stonefruit, by multiplying the number of
tons that could be marketed by the value per ton and dividing that
result by the highest price election available for the same type.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
(Sec. 457.8) are not applicable.
[63 FR 29935, June 2, 1998, as amended at 65 FR 47840, Aug. 4, 2000; 75
FR 44717, July 29, 2010]
Sec. 457.160 Processing tomato crop insurance provisions.
The Processing Tomato Crop Insurance Provisions for the 2005 and
succeeding crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured polices:
Processing Tomato Crop Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Acre. 43,560 square feet of land on which row widths do not exceed 6
feet, or the land on which at least 7,260 linear feet rows are planted
if row widths exceed 6 feet.
Broker. An enterprise in the business of buying and selling tomatoes
possessing all the licenses and permits required by the state in which
it operates, and that has a written contract with a processor to
purchase processing tomatoes on behalf of the processor and to deliver
such tomatoes to the processor.
[[Page 358]]
Bypassed acreage. Land on which production is ready for harvest but
the processor elects not to accept such production so it is not
harvested.
First fruit set. The reproductive stage of the plant at which 30
percent of the plants have produced a fruit that has reached a minimum
of one inch in diameter.
Good Farming Practices. In addition to the definition of ``good
farming practices'' contained in section 1 of the Basic Provisions, good
farming practices include the cultural practices required under the
processor contract.
Harvest. The severance of tomatoes from the vines.
Plant stand. The number of plants per acre considered to be normal
for the applicable tomato variety and growing area.
Planted acreage. In addition to the definition contained in the
Basic Provisions, tomatoes must initially be placed in rows to be
considered planted. Acreage planted in any other manner will not be
insurable unless otherwise provided by the Special Provisions or by
written agreement.
Practical to replant. In lieu of the definition of ``Practical to
replant'' contained in section 1 of the Basic Provisions, practical to
replant is defined as our determination, after loss or damage to the
insured crop, based on factors, including but not limited to moisture
availability, marketing window, condition of the field, and time to crop
maturity, that replanting the insured crop will allow the crop to attain
maturity prior to the calendar date for the end of the insurance period.
It will not be considered practical to replant unless the replanted
acreage can produce at least 75% of the approved yield, and the
processor agrees in writing that it will accept the production from the
replanted acreage.
Processor. Any business enterprise regularly engaged in processing
tomatoes for human consumption, that possesses all licenses and permits
for processing tomatoes required by the state in which it operates, and
that possesses facilities, or has contractual access to such facilities,
with enough equipment to accept and process contracted processing
tomatoes within a reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a
processor, or between the producer and a broker, containing at a
minimum:
(a) The producer's commitment to plant and grow processing tomatoes,
and to deliver the tomato production to the processor or broker;
(b) The processor's, or broker's, commitment to purchase all the
production stated in the processor contract; and
(c) A price per ton that will be paid for the production.
Ton. Two thousand (2,000) pounds avoirdupois.
2. Unit Division
(a) Notwithstanding the provisions of this section or any unit
division provisions contained in the Basic Provisions, no indemnity will
be paid for any loss of production on any unit if the insured produced a
crop sufficient to fulfill the processor contracts forming the basis for
the guarantee, and any indemnity will be limited to the amount necessary
to compensate for loss in yield at the price elected between production
to count and the contract requirements.
(b) In California only, in addition to, or instead of, establishing
optional units by section, section equivalent or FSA farm serial number
and by irrigated and non-irrigated acreage as provided in the unit
division provisions contained in the Basic Provisions, optional units
may be established if acreage planted to tomatoes is separated by a
field that is not planted to tomatoes, or by a permanent boundary such
as a permanent waterway, fence, public road or woodland. Such optional
unit must consist of the minimum number of acres stated in the Special
Provisions. Acreage planted to tomatoes that is less than the minimum
number of acres required will attach to the closest unit within the
section, section equivalent, or FSA farm serial number.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one price election for all the processing
tomatoes in the county insured under this policy unless the Special
Provisions provide different price elections by type. The percentage of
the maximum price election you choose for one type will be applicable to
all other types insured under this policy. For example, if you choose
100 percent of the maximum price election for one type, you must also
choose 100 percent of the maximum price election for all other types.
(b) Liability under this policy will not exceed the number of tons
required to be accepted by the processor under a processor contract in
effect on or before:
(1) The earlier of August 20 or the date of damage to the insured
crop in all counties with an acreage reporting date of July 15; or
(2) The earlier of the acreage reporting date or the date of damage
in all other counties. (Exclude indemnities that occur in stage one and
replant payments.)
(c) The price election used to determine the amount of an indemnity
is progressive by stage and increases, at specified intervals, to the
price used for final stage losses.
[[Page 359]]
Stages will be determined on an acre basis. The stages and applicable
price elections are:
(1) First stage is from planting until first fruit set. If any
acreage of the insured crop is destroyed in this stage, the price used
to establish the amount of any indemnity owed for such acreage will be
50 percent of your price election;
(2) Second stage is from the first fruit set until harvest. If any
acreage of the insured crop is destroyed in this stage, the price used
to establish the amount of any indemnity owed for such acreage will be
80 percent of your price election; and
(3) Third stage (final stage) is harvested acreage. The price
election used in this stage to establish the amount of any indemnity
owed will be 100 percent of your price election.
(d) Any acreage of tomatoes damaged to the extent, that the majority
of producers in the area would not normally further care for the
tomatoes, will be deemed to have been destroyed even though you may
continue to care for it. The price election used to determine the amount
of an indemnity will be that applicable to the stage in which the
tomatoes were destroyed.
(e) The appraised production from bypassed acreage that could have
been accepted by the processor will be included when determining your
approved yield.
(f) Acreage that is bypassed because it was damaged by an insurable
cause of loss to the extent that the processor cannot use the product
will be considered to have a zero yield when determining your approved
yield.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is August 31 preceding the cancellation date for California
and November 30 preceding the cancellation date for all other states.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are January 15 in California and
March 15 in all other states.
6. Report of Acreage
In addition to the provisions of section 6 of the Basic Provisions,
you must provide a copy of all processor contracts to us on or before
the acreage reporting date in all counties, unless otherwise specified
in the Special Provisions.
7. Annual Premium
In lieu of the premium amount determinations contained in section 7
of the Basic Provisions, the annual premium amount per acre is
determined by multiplying the production guarantee per acre by the price
election for the third (final) stage; by the premium rate; by the
insured acreage; by the applicable share at the time of planting; and
ultimately by any applicable premium adjustment factors contained in the
actuarial documents.
8. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the tomatoes in the county for which a premium rate
is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvest as processing tomatoes;
(3) That are grown under, and in accordance with, the requirements
of a processor contract executed on or before August 20 in all counties
with an acreage reporting date of July 15, or on or before the acreage
reporting date in all other counties, and are not excluded from the
processor contract for or during the crop year; and
(4) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Grown on acreage on which tomatoes were grown in either of the
two previous years, except in California;
(ii) Interplanted with another crop; or
(iii) Planted into an established grass or legume.
(b) You will be considered to have a share in the insured crop if,
under the processor contract, you retain control of the acreage on which
the tomatoes are grown, you are at risk of loss, and the processor
contract provides for delivery of processing tomatoes under specified
conditions and at a stipulated price.
(c) A tomato producer who is also a processor or broker may
establish an insurable interest if the following requirements are met:
(1) The processor or broker, as applicable, must comply with these
Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or
officers of the processor or the broker must execute and adopt a
resolution that contains the same terms as an acceptable processor
contract. (Such resolution will be considered a processor contract under
this policy); and
(3) As applicable, our inspection reveals that the processing
facilities comply with the definition of a processor contained in these
Crop Provisions.
9. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final
planting date, to the extent that the majority of producers in the area
would normally not further care for the crop, must be replanted unless
we agree that it is not practical to replant; and
[[Page 360]]
(b) We will not insure any acreage that does not meet the rotation
requirements, if applicable, contained in the Special Provisions.
10. Insurance Period
In lieu of the provisions contained in section 11 of the Basic
Provisions, regarding the end of the insurance period, insurance ceases
at the earlier of the date:
(a) You harvest sufficient production to fulfill your processor
contract if the processor contract stipulates a specific amount of
production to be delivered;
(b) The tomatoes should have been harvested but was not harvested;
(c) The tomatoes were abandoned;
(d) Harvest was completed;
(e) Final adjustment of a loss was completed; or
(f) The following calendar date for the end of the insurance period
(1) October 20 in California; and
(2) October 10 in all other states.
11. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions:
(a) Insurance is provided only against the following causes of loss
that occur during the insurance period:
(1) Adverse weather conditions, including:
(i) Excessive moisture that prevents the harvesting equipment from
entering the field or that prevents the timely operation of harvesting
equipment; and
(ii) Abnormally hot or cold temperatures that cause an unexpected
number of acres over a large producing area to be ready for harvest at
the same time, affecting the timely harvest of a large number of such
acres or the processing of such production being beyond the capacity of
the processor, either of which causes the acreage to be bypassed;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of
loss contained in sections 11(a)(1) through (7) that occurs during the
insurance period.
(b) In addition to the causes of loss excluded by section 12 of the
Basic Provisions, we will not insure against any loss of production due
to:
(1) Acreage being bypassed, if the acreage is bypassed because:
(i) The breakdown or non-operation of equipment or facilities; or
(ii) The availability of a crop insurance payment. We may deny any
indemnity immediately in such circumstance or, if an indemnity has been
paid, require you to repay it to us with interest at any time acreage
was bypassed due to the availability of a crop insurance payment;
(2) The processing tomatoes not being timely harvested, unless such
delay in harvesting is solely and directly due to an insured cause of
loss; or
(3) Your failure to follow the requirements contained in the
processor contract.
12. Replanting Payment
(a) In accordance with section 13 of the Basic Provisions, a
replanting payment is allowed if the crop sustained a loss exceeding 50
percent of the plant stand and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be
determined as follows:
(1) The amount shown on the Special Provisions multiplied by your
share; or
(2) If an amount is not contained in the Special Provisions, the
lesser of 20 percent of the production guarantee or three tons,
multiplied by your third stage (final) price election, multiplied by
your share; and
(3) In no event will the replanting payment per acre exceed your
actual cost of replanting.
13. Duties in the Event of Damage or Loss
In addition to the notice required by section 14 of the Basic
Provisions, you must give us notice:
(a) Not later than 48 hours after:
(1) Total destruction of the tomatoes in the unit; or
(2) Discontinuance of harvest on a unit on which unharvested
production remains;
(b) Within 3 days after the date harvest should have started on any
acreage that will not be harvested. You must also provide acceptable
documentation of the reason the acreage was bypassed. Failure to provide
such documentation will result in our determination that the acreage was
bypassed due to an uninsured cause of loss. If the crop will not be
harvested and you wish to destroy the crop, you must leave
representative samples of the unharvested crop for our inspection. The
samples must be at least 10 feet wide and extend the entire length of
each field in the unit. The samples must not be destroyed until the
earlier of our inspection or 15 days after notice is given to us; and
(c) At least 15 days prior to the beginning of harvest if you intend
to claim an indemnity on any unit, or immediately if damage is
discovered during the 15 day period or during harvest, so that we may
inspect the damaged production. If you fail to notify us and
[[Page 361]]
such failure results in our inability to inspect the damaged production,
we will consider all such production to be undamaged and include it as
production to count. You are not required to delay harvest.
14. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee, by type if applicable;
(2) Multiplying each result of section 14(b)(1) by the respective
price election, by type if applicable;
(3) Totaling the results of section 14(b)(2) if there are more than
one type;
(4) Multiplying the total production to counted (see section 14(c)),
for each type if applicable, by its respective price election;
(5) Totaling the results of section 14(b)(4) if there are more than
one type;
(6) Subtracting the result of section 14(b)(4) from the result of
section 14(b)(2) if there is only one type or subtracting the result of
section 14(b)(5) from the result of section 14(b)(3) if there are more
than one type; and
(7) Multiplying the result of section 14(b)(6) by your share.
For example:
You have a 100 percent share in 50 acres of type A processing
tomatoes in the unit, with a guarantee of 18.8 tons per acre and a price
election of $50.00 per ton. You are only able to harvest 10.0 tons. Your
indemnity would be calculated as follows:
(1) 50.0 acres x 18.8 tons = 940.0 tons guarantee;
(2) 940.0 tons x $50.00 price election = $47,000.00 value guarantee;
(4) 10.0 tons x $50.00 price election = $500.00 value of production
to count;
(6) $47,000.00 - $500.00 = $46,500.00 loss; and
(7) $46,500 x 100 percent = $46,500.00 indemnity payment.
You also have a 100 percent share in 50 acres of type B processing
tomatoes in the same unit, with a guarantee of 15.0 tons per acre and a
price election of $35.00 per ton. You are only able to harvest 5.0 tons.
Your total indemnity for both types A and B would be calculated as
follows:
(1) 50.0 acres x 18.8 tons = 940.0 ton guarantee for type A and 50.0
acres x 15.0 tons = 750.0 ton guarantee for type B;
(2) 940.0 ton guarantee x $50.00 price election = $47,000.00 value
of guarantee for type A and 750.0 ton guarantee x $35.00 = $26,500.00
value of guarantee for type B;
(3) $47,000.00 + $26,500.00 = $72,500.00 total value of guarantee;
(4) 10.0 tons x $50.00 price election = $500.00 value of production
to count for type A and 5.0 tons x $35.00 price election = $175.00 value
of production to count for type B;
(5) $500.00 + $175.00 = $675.00 total value of production to count;
(6) $72,500.00 - $675.00 = $71,575.00 loss; and
(7) $71,575 loss x 100 percent = $71,575.00 indemnity payment.
(c) The total production to count, specified in tons, from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us.
(ii) Production lost due to uninsured causes;
(iii) Production on acreage that is bypassed unless the acreage was
bypassed due to an insured cause of loss which resulted in production
which would not be acceptable under the terms of the processor contract;
(iv) Potential production on insured acreage that you intend to put
to another use or abandoned, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us, (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested;
(2) All harvested production (in tons) delivered to the processor
which meets the quality requirements of the processor contract
(expressed as usable or payable weight).
[[Page 362]]
(3) All harvested tomato production delivered to processor which
does not meet the quality requirements of the processor contract due to
not being timely delivered.
(d) Once harvest has begun on any acreage covered by a processor
contract that specifies the number of tons to be delivered, the total
indemnity payable will be limited to an amount based on the lesser of
the guaranteed tons, or the tons remaining unfulfilled under the
processor contract.
15. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[62 FR 54342, Oct. 20, 1997, as amended at 62 FR 65177, Dec. 10, 1997;
69 FR 44576, July 27, 2004]
Sec. 457.161 Canola and rapeseed crop insurance provisions.
The canola and rapeseed crop insurance provisions for the 2011 and
succeeding crop years are as follows:
FCIC policies:
Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Canola and Rapeseed Crop Provisions
1. Definitions
Canola. A crop of the genus Brassica as defined in accordance with
the Official United States Standards for Grain--Subpart C--U.S.
Standards for Canola.
Harvest. Combining or threshing for seed. A crop that is swathed
prior to combining is not considered harvested.
Local market price (Canola). The cash price per pound for U.S. No. 2
grade canola that reflects the maximum limits of quality deficiencies
allowable for the U.S. No. 2 grade canola.
Planted acreage. In addition to the definition contained in the
Basic Provisions, land on which seed is initially spread onto the soil
surface by any method and subsequently is mechanically incorporated into
the soil in a timely manner and at the proper depth will be considered
planted. Acreage planted in any other manner will not be insurable
unless otherwise provided by the Special Provisions, actuarial
documents, or by written agreement.
Price of damaged production. The cash price per pound available if
the production were sold for canola that qualifies for quality
adjustment in accordance with section 12 of these crop provisions.
Rapeseed. A crop of the genus Brassica that contains at least 30
percent of an industrial type of oil as shown on the Special Provisions
and that is measured on a basis free from foreign material.
Swathed. Severance of the stem and seed pods from the ground and
placing into windrows without removal of the seed from the pod.
2. Unit Division
In addition to optional units by section, section equivalent or FSA
farm serial number and by irrigated and non-irrigated practices,
optional units may be by type if the type is designated on the Special
Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You must elect to insure your canola and rapeseed with either
revenue protection or yield protection by the sales closing date; and
(b) In counties with both fall and spring sales closing dates for
the insured crop:
(1) If you do not have any insured fall planted acreage of the
insured crop, you may change your coverage level, or your percentage of
projected price (if you have yield protection), or elect revenue
protection or yield protection, until the spring sales closing date; or
(2) If you have any insured fall planted acreage of the insured
crop, you may not change your coverage level, or your percentage of
projected price (if you have yield protection), or elect revenue
protection or yield protection, after the fall sales closing date.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date for counties
with a March 15 cancellation date, and June 30 preceding the
cancellation date for all other counties.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
------------------------------------------------------------------------
Cancellation and
State and county Termination dates
------------------------------------------------------------------------
All counties in Alabama and Georgia........ Sept. 30.
All other counties without fall planted Mar. 15.
types specified on the actuarial table.
All other counties with fall planted types Aug. 31.
specified on the actuarial table.
------------------------------------------------------------------------
[[Page 363]]
6. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all canola and rapeseed in the county for which a
premium rate is provided by the actuarial table:
(a) In which you have a share;
(b) That is planted for harvest as seed; and
(c) That is not, unless allowed by Special Provisions or by written
agreement:
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
7. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage that does not meet the rotation
requirements contained in the Special Provisions;
(b) Whenever the Special Provisions designate only a fall final
planting date, any acreage of canola or rapeseed damaged before such
final planting date, to the extent that growers in the area would
normally not further care for the crop, must be replanted to a fall type
of the insured crop unless we agree that replanting is not practical;
(c) Whenever the Special Provisions designate both fall and spring
final planting dates:
(1) Any fall canola or rapeseed that is damaged before the spring
final planting date, to the extent that growers in the area would
normally not further care for the crop, must be replanted to a fall type
of the insured crop to maintain insurance based on the fall type unless
we agree that replanting is not practical. If it is not practical to
replant to the fall type of canola or rapeseed but is practical to
replant to a spring type, you must replant to a spring type to keep your
insurance based on the fall type in force; and
(2) Any fall canola or rapeseed acreage that is replanted to a
spring type of the same crop when it was practical to replant the fall
type will be insured as the spring type and the production guarantee,
premium, projected price, and harvest price applicable to the spring
type will be used. In this case, the acreage will be considered to be
initially planted to the spring type; and
(d) Whenever the Special Provisions designate a spring final
planting date, any acreage of spring canola or rapeseed damaged before
such final planting date, to the extent that growers in the area would
normally not further care for the crop, must be replanted to a spring
type of the insured crop unless we agree that replanting is not
practical; or
(e) Whenever the Special Provisions designate only a spring final
planting date, any acreage of fall planted canola or rapeseed is not
insured unless you request such coverage on or before the spring sales
closing date, and we determine in writing that the acreage has an
adequate stand in the spring to produce the yield used to determine your
production guarantee. However, if we fail to inspect the acreage by the
spring final planting date, insurance will attach as specified in
section 7(e)(3):
(1) Your request for coverage must include the location and number
of acres of fall planted canola or rapeseed;
(2) The fall planted canola or rapeseed will be insured as a spring
type for the purpose of the production guarantee, premium, projected
price, and harvest price, if applicable;
(3) Insurance will attach to such acreage on the date we determine
an adequate stand exists or on the spring final planting date if we do
not determine adequacy of the stand by the spring final planting date;
(4) Any acreage of such fall planted canola or rapeseed that is
damaged after it is accepted for insurance but before the spring final
planting date, to the extent that growers in the area would normally not
further care for the crop, must be replanted to a spring type of the
insured crop unless we agree it is not practical to replant; and
(5) If fall planted acreage is not to be insured it must be recorded
on the acreage report as uninsured fall planted acreage.
8. Insurance Period
In accordance with the provisions of section 11 of the Basic
Provisions, the calendar date for the end of the insurance period is
October 31 of the calendar year in which the crop is normally harvested.
9. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss which occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss
specified in sections 9(a) through (g) that also occurs during the
insurance period; or
(i) For revenue protection, a change in the harvest price from the
projected price, unless FCIC can prove the price change was the direct
result of an uninsured cause of loss specified in section 12(a) of the
Basic Provisions.
[[Page 364]]
10. Replanting Payment
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that
limit the amount of a replant payment to the actual cost of replanting,
the amount of any replanting payment will be determined in accordance
with these Crop Provisions;
(2) Except as specified in section 10(a)(1), you must comply with
all requirements regarding replanting payments contained in section 13
of the Basic Provisions;
(3) The insured crop must be damaged by an insurable cause of loss
to the extent that the remaining stand will not produce at least 90
percent of the production guarantee for the acreage; and
(4) The replanted crop must be seeded at a rate sufficient to
achieve a total (undamaged and new seeding) plant population that is
considered appropriate by agricultural experts for the insured crop,
type and practice.
(b) Unless otherwise specified in the Special Provisions, the amount
of the replanting payment per acre will be the lesser of 20 percent of
the production guarantee or 175 pounds, multiplied by your projected
price, multiplied by your share.
(c) When the crop is replanted using a practice that is uninsurable
for an original planting, the liability on the unit will be reduced by
the amount of the replanting payment. The premium amount will not be
reduced.
(d) If the acreage is replanted to an insured crop type that is
different than the insured crop type originally planted on the acreage:
(1) The production guarantee, premium, and projected price and
harvest price, as applicable, will be adjusted based on the replanted
type;
(2) Replanting payments will be calculated using your projected
price and production guarantee for the crop type that is replanted and
insured; and
(3) A revised acreage report will be required to reflect the
replanted type, as applicable.
11. Duties in the Event of Damage or Loss
Representative samples are required in accordance with section 14 of
the Basic Provisions.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production that are acceptable to us
for any:
(1) Optional unit, we will combine all optional units for which
acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such
units in proportion to our liability on the harvested acreage for each
unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the number of insured acres of each type, as
applicable, by your respective:
(i) Yield protection guarantee (per acre) if you elected yield
protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue
protection;
(2) Totaling the results of section 12(b)(1)(i) or 12(b)(1)(ii),
whichever is applicable;
(3) Multiplying the production to count of each type, as applicable,
by your respective:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 12(b)(3)(i) or 12(b)(3)(ii),
whichever is applicable;
(5) Subtracting the result of section 12(b)(4) from the result of
section 12(b)(2); and
(6) Multiplying the result of section 12(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of canola in the unit with a
production guarantee (per acre) of 650 pounds, your projected price is
$.1220, your harvest price is $.1110, and your production to count is
31,000 pounds.
If you elected yield protection:
(1) 50 acres x (650 pound production guarantee x $.1220 projected
price) = $3,965.00 value of the production guarantee
(3) 31,000 pound production to count x $.1220 projected price =
$3,782.00 value of the production to count
(5) $3,965.00-$3,782.00 = $183.00
(6) $183.00 x 1.000 share = $183.00 indemnity; or
If you elected revenue protection:
(1) 50 acres x (650 pound production guarantee x $.1220 projected
price) = $3,965.00 revenue protection guarantee
(3) 31,000 pound production to count x $.1110 harvest price =
$3,441.00 value of the production to count
(5) $3,965.00-$3,441.00 = $524.00
(6) $524.00 x 1.000 share = $524.00 indemnity.
(c) The total production to count (pounds) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee and
for revenue protection, not less than the amount of production that when
multiplied by the harvest price equals the revenue protection guarantee
(per acre) for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
[[Page 365]]
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies and excess moisture in accordance with
section 12(d)); and
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature canola may be adjusted for excess moisture and quality
deficiencies. Mature rapeseed may be adjusted for excess moisture only.
If moisture adjustment is applicable, it will be made prior to any
adjustment for quality.
(1) Canola and rapeseed production will be reduced by 0.12 percent
for each 0.1 percentage point of moisture in excess of 8.5 percent. We
must be permitted to obtain samples of the production to determine the
moisture content.
(2) Canola production will be eligible for quality adjustment if:
(i) Deficiencies in quality, in accordance with the Official United
States Standards for Grain, result in the canola not meeting the grade
requirements for U.S. No. 3 or better (U.S. Sample grade) because of
kernel damage (excluding heat damage), or a musty, sour, or commercially
objectionable foreign odor; or
(ii) Substances or conditions are present that are identified by the
Food and Drug Administration or other public health organizations of the
United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss in canola
production only if:
(i) The deficiencies, substances, or conditions resulted from a
cause of loss against which insurance is provided under these Crop
Provisions and which occurs within the insurance period;
(ii) The deficiencies, substances, or conditions result in a net
price for the damaged production that is less than the local market
price;
(iii) All determinations of these deficiencies, substances, or
conditions are made using samples of the production obtained by us or by
a disinterested third party approved by us;
(iv) With regard to deficiencies in quality, the samples are
analyzed by:
(A) A grain grader licensed under the United States Grain Standards
Act or the United States Warehouse Act;
(B) A grain grader licensed under State law and employed by a
warehouse operator who has a storage agreement with the Commodity Credit
Corporation; or
(C) A grain grader not licensed under State law, but who is employed
by a warehouse operator who has a commodity storage agreement with the
Commodity Credit Corporation and is in compliance with State law
regarding warehouses; and
(v) With regard to substances or conditions injurious to human or
animal health, the samples analyzed by a laboratory approved by us.
(4) Canola production that is eligible for quality adjustment, as
specified in sections 12(d)(2) and (3), will be reduced in accordance
with the quality adjustment factors contained in the Special Provisions.
(e) Any production harvested from plants growing in the insured crop
may be counted as production of the insured crop on an unadjusted weight
basis.
13. Late Planting
In lieu of section 16(a) of the Basic Provisions, the production
guarantee for each acre planted to the insured crop during the late
planting period will be reduced by 1 percent per day for each day
planted after the final planting date unless otherwise specified in the
Special Provisions.
14. Prevented Planting
Your prevented planting coverage will be 60 percent of your
production guarantee for timely planted acreage. If you have additional
coverage and pay an additional premium, you may increase your prevented
planting coverage to a level specified in the actuarial documents.
[62 FR 65997, Dec. 17, 1997, as amended at 67 FR 43526, June 28, 2002;
75 FR 15889, Mar. 30, 2010]
[[Page 366]]
Sec. 457.162 Nursery crop insurance provisions.
The Nursery Crop Insurance Provisions for the 2006 and succeeding
crop years are as follows:
FCIC Policies
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured Policies
(Appropriate title for insurance provider)
Both FCIC and Reinsured Policies
Nursery Crop Insurance Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1) The Catastrophic Risk Protection
Endorsement, if applicable; (2) the Special Provisions; (3) these Crop
Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
1. Definitions
Act. The Federal Crop Insurance Act, 7 U.S.C. 1501 et seq.
American Standard for Nursery Stock. A publication of the American
Nursery and Landscape Association, or a subsequent successor
organization, issued in accordance with the rules of the American
National Standards Institute, Inc. that provides common terminology and
standards for nurseries.
Amount of insurance. For each basic unit, your basic unit value
multiplied by the coverage level percentage you elect and multiplied by
your share.
Basic unit value. The full value of all insurable plants in each
basic unit as shown on your PIVR, including any revision that increases
the value of your insurable plant inventory.
Container grown. Nursery plants planted and grown in standard
nursery containers either above ground or that are placed in the ground,
either directly or when placed in another pot in the ground (i.e., pot-
in-pot).
Crop year. The period beginning the day insurance attaches and
extending until the following May 31. Crop year is designated by the
year in which the insurance period ends.
Crop year deductible. The deductible percentage multiplied by the
sum of all plant inventory values for each basic unit. The crop year
deductible will be increased for any increases in the inventory value on
the PIVR or through the purchase of a Peak Inventory Endorsement, if in
effect at the time of loss. The crop year deductible will be reduced by
any previously incurred deductible, except any incurred under the
Rehabilitation Endorsement, if you timely report each loss to us.
Deductible percentage. An amount equal to 100 percent minus the
percent of coverage you select.
Eligible Plant List. A list that includes the botanical and common
names of insurable plants, the winter protection requirements for
container grown material and the areas in which they apply, the
hardiness zone to which field grown material is insurable, the
designated hardiness zone for each county, and the unit classification
for each plant on the list, published by FCIC on RMA's Web site at
http://www.rma.usda.gov. It is also available on compact disk from your
crop insurance agent.
Fabric grow bag. A fabric bag (including a woven or matted bag with
a plastic or fabric bottom) used for growing woody plants in-ground or
as an above-ground nursery plant container that provides adequate
drainage and is appropriate in size for the plant.
FCIC. The Federal Crop Insurance Corporation, a wholly owned
corporation within the USDA, or a successor agency.
Field grown. Nursery plants planted and grown in the ground without
the use of an artificial root containment device. Plants grown in in-
ground fabric grow bags, plants that are balled and burlapped or plants
grown in containers that allow the plants to root (excluding fibrous
roots) into the ground (for example, a container without a bottom) are
also considered field grown.
Field market value A. The value of undamaged insurable plants, based
on the lesser of: (1) The prices contained in the Plant Price Schedule;
or (2) the prices contained in your catalog or price list in the basic
unit immediately prior to the occurrence of any loss, as determined by
our appraisal. This allows the amount of insurance under the policy to
be divided among the individual units in accordance with the actual
value of the plants in the unit at the time of loss to determine whether
you are entitled to an indemnity for insured losses in the basic unit.
This value is also used to calculate the actual value of the plants in
the basic unit at the time of loss to ensure that you have not under-
reported your plant values. For liners, the total value of undamaged
liners is multiplied by the survival factor to determine the value of
undamaged insurable plants.
Field market value B. The value of insurable plants, based on the
lesser of: (1) The prices contained in the Plant Price Schedule; or (2)
the prices contained in your catalog or price list in the basic unit
following the occurrence of a loss, as determined by our appraisal, plus
any reduction in value due to uninsured causes. This is used to
determine the loss of value for each individual unit so that losses can
be paid on an individual unit basis.
Good nursery practices. In lieu of the definition of ``good farming
practices'' contained
[[Page 367]]
in section 1 of the Basic Provisions, the horticultural practices
generally in use in the area for nursery plants to make normal progress
toward the stage of growth at which marketing can occur and: (1) For
conventional practices, generally recognized by agricultural experts for
the area as compatible with the nursery plant production practices and
weather conditions in the county; or (2) for organic practices,
generally recognized by the organic agricultural industry for the area
as compatible with the nursery plant production practices and weather
conditions in the county or contained in the organic plan. We may, or
you may request us to, contact FCIC to determine whether or not
production methods will be considered to be ``good nursery practices.''
Irrigated practice. In lieu of the definition in the Basic
Provisions, the application of water, using appropriate systems and at
the proper times, to provide the quantity of water needed to sustain
normal growth of your insured plant inventory and provide cold
protection for applicable plants as specified in the Eligible Plant
List.
Liners. Plants produced in standard nursery containers that are
equal to or greater than 1 inch in diameter (including trays containing
200 or fewer individual cells, unless specifically provided by the
Special Provisions) but less than 3 inches in diameter at the widest
point of the container or cell interior, have an established root
system, and meet all other conditions specified in the Special
Provisions.
Loss. Field market value A minus field market value B.
Marketable. Of a condition that it may be offered for sale in the
market.
Monthly proration factors. Factors contained in the actuarial
documents that are used to calculate premium when you do not insure the
nursery plants for an entire crop year.
Nursery. A business enterprise that grows the nursery plants and
derives at least 50 percent of its gross income from the wholesale
marketing of such plants.
Occurrence deductible. This deductible allows a smaller deductible
than the crop year deductible to be used when the inventory value is
less than the reported basic unit value. The occurrence deductible is
the lesser of: (1) The deductible percentage multiplied by field market
value A multiplied by the under-report factor; or (2) the crop year
deductible.
PIVR. The plant inventory value report, your report that declares
the value of insurable plants in accordance with section 6.
Plant Price Schedule. A schedule of insurable plant prices that
establishes the maximum insurable value of undamaged insurable plants,
published by FCIC as an actuarial document available on RMA's Web site
at http://www.rma.usda.gov. It is also available on compact disk from
your crop insurance agent.
Practice. A cultural method of producing plants. Container grown and
field grown are considered separate insurable practices.
Sales closing date. In lieu of the definition in section 1 of the
Basic Provisions, the date shown in the Special Provisions. New-policy
applications may be filed at any time. However, all applications,
including those for new or amended coverage, are subject to a 30-day
waiting period before commencement of coverage as specified in sections
3(d) and 9(a).
Standard nursery containers. Rigid containers not less than 1 inch
in diameter at the widest point of the container interior (including
trays that contain 200 or fewer individual cells, unless specifically
provided by the Special Provisions), above-ground fabric grow bags, and
other types of containers specified in the Special Provisions that are
appropriate in size and provide adequate drainage for the plant. In-
ground fabric grow bags, balled and burlapped, and trays (flats) without
individual cells are not considered standard nursery containers.
Stock plants. Plants used solely for propagation during the
insurance period.
Survival factor. A factor shown on the Special Provisions that
specifies the expected percentage of liners that normally survive the
period from insurance attachment to market.
Under-report factor. The factor that adjusts your indemnity for
under-reporting of inventory values. The factor is always used in
determining indemnities. For each basic unit, the under-report factor is
the lesser of: (1) 1.000; or (2) the basic unit value, including a Peak
Inventory Value Report during the coverage term of a Peak Inventory
Endorsement, minus the total of all previous losses, as adjusted by any
previous under-report factor, divided by field market value A. Payments
made under the Rehabilitation Endorsement will not be considered a
previous loss when calculating the under-report factor.
Wholesale. To sell nursery plants in large quantities at a price
below that offered on low-quantity sales to retailers, commercial users,
governmental end-users, or other end-users for business purposes (e.g.
sales to landscape contractors and commercial fruit producers). This
determination will be based on a county-by-county basis.
2. Unit Division
(a) If you elect additional coverage for a practice, a basic unit,
as defined in section 1 of the Basic Provisions, may be divided into
additional basic units by each insurable plant type designated in
section 2(b) for which a premium rate is provided by the actuarial
documents.
[[Page 368]]
(b) Only the following plant types contained on the Eligible Plant
List are insurable:
(1) Deciduous Trees (Shade and Flower);
(2) Broad-leaf Evergreen Trees;
(3) Coniferous Evergreen Trees;
(4) Fruit and Nut Trees;
(5) Deciduous Shrubs;
(6) Broad-leaf Evergreen Shrubs;
(7) Coniferous Evergreen Shrubs;
(8) Small Fruits;
(9) Herbaceous Perennials;
(10) Roses;
(11) Ground Cover and Vines;
(12) Annuals;
(13) Foliage;
(14) Palms and Cycads;
(15) Liners (container grown only and inclusive of all insurable
plant types); and
(16) Other plant types listed in the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) The production reporting requirements, including the
misreporting provisions, contained in section 3 of the Basic Provisions
are not applicable.
(b) In addition to the requirements of section 3 of the Basic
Provisions, you may select either catastrophic risk protection or
additional coverage for each insured practice. An administrative fee
established in accordance with section 7(e) of the Basic Provisions will
be owed for each practice insured.
(c) In lieu of section 3(b) of the Basic Provisions:
(1) If you select additional coverage for a practice:
(i) You may select one coverage level for each plant type insured in
that practice if you elect basic units by plant type;
(ii) You will receive 100 percent of the price election for all
plant types in that practice;
(iii) You must provide on the application a coverage level
percentage for each plant type that will be insured; and
(iv) You must select a coverage level if:
(A) A new plant is added under a revised PIVR or Peak Inventory
Endorsement; and
(B) The plant is not categorized under a plant type reported on the
initial PIVR.
(2) If you select catastrophic risk protection for a practice, all
plant types under the practice must be insured at the catastrophic risk
protection level.
(d) In lieu of section 3(d) of the Basic Provisions, you may request
changes to the coverage level for a plant type by submitting them in
writing to us as follows:
(1) For new policies, changes cannot be made for the crop year after
the date of the application; and
(2) For carryover policies:
(i) For the 2006 crop year only, changes must be requested on or
before September 30th prior to the start of the crop year;
(ii) For all subsequent crop years, changes must be requested on or
before the sales closing date; and
(iii) Unless we reject the proposed increase because a loss occurs
within 30 days of the date the request is made (Rejection can occur at
any time we discover such loss has occurred), requested changes will
take effect:
(A) For the 2006 crop year, 30 days after the date you submitted
your request; and
(B) For all subsequent crop years, on the date of the start of the
crop year.
(e) Your amount of insurance will be reduced by the amount of any
indemnity paid under this policy. For losses occurring when a Peak
Inventory Endorsement is in effect, to determine the amount of insurance
remaining after the loss you must subtract the amount of the indemnity
from the peak amount of insurance, then subtract any remaining amount of
indemnity from the amount of insurance.
(f) If you restock your nursery plant inventory, you may increase
your amount of insurance in accordance with section 6(g).
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is January 31 of each crop year.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are May 31 preceding the crop year.
6. PIVR
(a) Section 6 of the Basic Provisions is not applicable.
(b) You must submit a PIVR for each insured practice, as applicable,
and two copies of your most recent wholesale catalogs or price lists in
accordance with subsection (k) to us with your application on or before
the sales closing date for each crop year following the year of
application.
(1) You will be notified in writing if an application for insurance
is refused because the inventory or wholesale catalog or price list is
not acceptable.
(2) If you fail to provide a PIVR or applicable catalog or price
list on or before the sales closing date for any crop year, insurance
will not attach until 30 days after all such documents have been
received by your crop insurance agent and we will not be liable for any
losses that occur before insurance has attached.
(c) The PIVR must include, by basic unit, all growing locations,
basic unit value, coverage level selected, as applicable, and your
share.
(1) If you do not elect additional basic units by plant type or you
elect CAT coverage, the plant inventory values for each
[[Page 369]]
plant type in the basic unit must be separately reported on the PIVR and
totaled to determine the basic unit value.
(2) At our option, you will be required to provide documentation in
support of your PIVR, including, but not limited to, a detailed plant
inventory listing that includes the name, the number, and the size of
each plant; acceptable records of sales and purchases of plants for the
three previous crop years in the amount of detail we require; and your
ability to properly obtain and maintain nursery stock. Acceptable
records must contain the name and telephone number of the purchaser or
seller, as applicable, names of the plants, the number of each plant
sold or purchased, and the sales price for each plant.
(3) Failure to provide documentation when requested or providing
inadequate documentation will result in denial of insurance for the crop
year for any basic units for which such documentation was not provided.
This provision does not apply to:
(i) Plant varieties you have not previously grown; or
(ii) New nurseries where an inspection has determined you have the
ability to properly obtain and maintain the nursery stock.
(d) Your PIVR, including any revised report, and your Peak Inventory
Value Report will be used to determine your premium and amount of
insurance.
(e) Your PIVR must reflect your insurable nursery plant inventory
value by basic unit.
(1) The price for each plant and size listed on your PIVR will be
the lower of the Plant Price Schedule price or the lowest wholesale
price in your nursery catalog or price list submitted in accordance with
section 6(k).
(2) In no instance will we be liable for plant values greater than
those contained in the Plant Price Schedule.
(3) If you have previously made a claim and the loss adjuster is
unable to determine whether a plant was damaged prior to submission of
your PIVR for the current crop year, the plant will be insurable at full
value based on the lesser of the Eligible Plant List price or the
catalog or price list price. The value of the plant may be reduced at
any time during the crop year if the extent of damage is discovered.
(f) For catastrophic level policies only, you must report, on the
PIVR for each practice insured, your greatest plant sales in any of the
previous 3 years and the actual inventory value on the date insurance
attaches.
(1) You may be required to provide documentation to support the
above reporting requirements. To be considered adequate, sales documents
must contain the name and telephone number of the purchaser, names of
the plants, the number of each plant sold, and the sales price for each
plant.
(2) For each applicable practice, the total of your basic unit
values cannot exceed 110 percent of the higher of your:
(i) Greatest amount of plant sales in any of the previous 3 years;
or
(ii) Actual inventory value on the date insurance attaches.
(3) Failure to provide documentation when requested or providing
inadequate documentation will result in denial of insurance for the crop
year for any basic unit for which such documentation was not provided.
This provision does not apply to:
(i) Plant varieties you have not previously grown; or
(ii) New nurseries where an inspection has determined you have the
ability to properly obtain and maintain the nursery stock.
(g) You may increase your reported inventory value for each basic
unit no more than twice during the crop year by submitting a revised
PIVR prior to 30 days before the end of such crop year.
(1) Any requested increase must be made in writing and contain the
same information as required in section 6(c). The limitations in section
3(d) regarding making changes to the coverage level after a specified
date are not applicable to a revised PIVR that adds new plant types. The
limitations continue to apply if plants are added for a specific plant
type.
(2) An inspection will be performed when the total of all the basic
unit values contained on the revised PIVRs is increased 50 percent or
more from the previous total of all the basic unit values on the PIVR,
and the increase is not due to restocking subsequent to an insured loss.
(3) At our discretion, we may inspect the inventory if an increase
of less than 50 percent is reported on the revised PIVR.
(4) Your revised PIVR will be considered accepted by us and
insurance will attach on any proposed increase in inventory value 30
days after your written request is received unless we reject the
proposed increase in your plant inventory value in writing.
(5) We will reject any requested increase if a loss occurs within 30
days of the date the request is made.
(6) You cannot revise your PIVR to decrease the plant inventory
value after the start of the insurance period specified in section 9.
(h) For insurable plants that were damaged prior to the attachment
of insurance coverage:
(1) The applicable price, as determined in accordance with section
6(e), will be reduced for inventory reporting purposes if we accept such
plants for insurance coverage;
(2) The plants will be removed from the PIVR if they are not
accepted;
(3) The procedure for calculating the insurable value of damaged
plants that are accepted for coverage is contained in the Special
Provisions.
(i) You must report the full value of each basic unit value in
accordance with section
[[Page 370]]
6(e). Failure to report the full value of each basic unit value will
result in the reduction of any claim in accordance with section 12(d).
(j) Insurable plants in over-sized containers will be valued for
purposes of reporting inventory and loss adjustment as if the plants
were in appropriate-sized containers in accordance with the standards
contained in the current American Standard for Nursery Stock. Each cell
in a multiple-cell container is considered a separate container. (See
the Eligible Plant List at http://www.rma.usda.gov/ for additional
information and requirements on container specifications and volume
calculation.)
(k) At a minimum, your wholesale catalog or price list must:
(1) Be type-written and legible;
(2) Show an issue date on the cover page (may be handwritten);
(3) Contain the name, address, and phone number of your nursery;
(4) Be provided to customers and used in the sale of your plants;
and
(5) List each plant's name (scientific or common), plant or
container size, and wholesale price.
7. Premium
(a) In lieu of section 7(c) of the Basic Provisions, we will
determine your premium by multiplying the amount of insurance by the
appropriate premium rate, any premium adjustment factor, and the monthly
proration factor contained in the actuarial documents, if applicable.
(b) In addition to the provisions in section 7 of the Basic
Provisions, we will prorate your premium based on:
(1) The time remaining in the crop year after insurance attaches:
(i) If you have made application after the start of the insurance
period specified in section 9; or
(ii) If you submit a PIVR or wholesale catalog or price list after
the sales closing date;
(2) The time remaining in the crop year after insurance attaches and
the additional amount of inventory reported, if you submit a revised
PIVR to report an increase in inventory value for a basic unit; and
(3) The time period for which insurance is provided under the Peak
Inventory Endorsement.
(c) If your premium is prorated, premium will be charged for the
entire month for any calendar month during which any amount of coverage
is provided under these provisions or the Peak Inventory Endorsement.
(d) In lieu of section 7(a) of the Basic Provisions:
(1) If you apply for insurance before April 1st, the annual premium
is earned and payable at the time coverage begins. You will be billed
for the premium and administrative fee not earlier than the premium
billing date specified in the Special Provisions.
(2) If you apply for insurance, or submit your PIVR or wholesale
catalog or price list, on or after April 1st, the premium for the
partial crop year will be due and must be paid at the time of
application.
(3) Failure to pay the premium at the time of application, or when
you submit your PIVR or wholesale catalog or price list, will result in
no insurance and no indemnity being owed for the crop year.
8. Insured Crop and Plants
In lieu of the provisions of sections 8 and 9 of the Basic
Provisions, the crop insured will be all nursery plants and plant types
in each practice, contained on the Eligible Price List, in which you
have a share, that you elect to insure, and that:
(a) Are shown on the Eligible Plant List and meet all the
requirements for insurability (plant types, species and cultivars not
insurable under the eligible plant list may be insured by written
agreement, subject to FCIC's determination that the proper storage
requirements and an accurate insurable price for the plant can be
determined, and provided all other requirements, such as plant and
container size, are met);
(b) Are determined by us to be acceptable;
(c) Are grown in a county for which a premium rate is provided in
the actuarial documents;
(d) Are grown in a nursery inspected by us and determined to be
acceptable;
(e) Are irrigated unless otherwise provided by the Special
Provisions (You must have adequate irrigation equipment and water to
irrigate all insurable nursery plants at the time coverage begins and
throughout the insurance period);
(f) Are grown in accordance with the production practices for which
premium rates have been established;
(g) Are grown in an appropriate medium;
(h) Are not grown for sale as Christmas trees;
(i) Are not stock plants or plants being grown solely for harvest of
buds, flowers, or greenery;
(j) May produce edible fruits or nuts provided the plants are made
available for sale (Harvest of the edible fruit or nuts does not affect
insurability); and
(k) Are not produced in nursery containers that contain two or more
different genera, species, subspecies, varieties or cultivars.
9. Insurance Period
(a) In lieu of section 11 of the Basic Provisions:
(1) For the year of application, if you apply for coverage:
(i) On or before August 31, 2005, for the 2006 crop year, coverage
begins on October 1, 2005,
[[Page 371]]
unless we notify you in writing that your inventory is not acceptable;
(ii) After August 31, 2005, and on or before May 1, 2006, for the
2006 crop year, or on or before May 1st of the crop year for any
subsequent crop year, coverage begins 30 days after your crop insurance
agent receives an application signed by you, unless we notify you in
writing that your inventory is not acceptable;
(iii) After May 1, 2006, or after May 1st for any subsequent crop
year, coverage will not begin until the next crop year, subject to the
30-day delay specified in subparagraph (ii); and
(2) For continuous policies:
(i) For the 2006 crop year, the insurance period begins on October
1, 2005.
(ii) For the 2007 crop year, the insurance period begins on June 1,
2006, and for each subsequent crop year, the insurance period begins on
each June 1st.
(b) Insurance ends at the earliest of:
(1) The date of final adjustment of a loss when the total
indemnities due equal the amount of insurance;
(2) Removal of bare root nursery plant material from the field;
(3) Removal of all other insured plant material from the nursery; or
(4) 11:59 p.m. on May 31, 2006, for the 2006 crop year, and on May
31st for each subsequent crop year.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided for unavoidable damage caused only by
the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions, except as specified in section 10(c)
or the Special Provisions;
(2) Fire, provided weeds and undergrowth in the vicinity of the
plants or buildings on your insured site are controlled by chemical or
mechanical means;
(3) Wildlife;
(4) Earthquake; or
(5) Volcanic eruption.
(b) Insurance is also provided against the following if due to a
cause of loss specified in section 10(a) that occurs within the
insurance period:
(1) A loss in plant values because of an inability to market such
plants, provided such plants would have been marketed during the crop
year (e.g. poinsettias that are not marketable during their usual and
recognized marketing period of November 1st through December 25th);
(2) Failure of the irrigation water supply; or
(3) Failure of, or reduction in, the power supply.
(c) In addition to the causes of loss excluded in sections 12(a) and
(c) through (f) of the Basic Provisions, we do not insure against any
loss caused by:
(1) Disease or insect infestation, unless:
(i) A disease or insect infestation occurs for which no effective
control measure exists; or
(ii) Coverage is specifically provided by the Special Provisions.
(2) The inability to market the nursery plants as a result of:
(i) The refusal of a buyer to accept production;
(ii) Boycott; or
(iii) An order from a public official prohibiting sales including,
but not limited to, a stop sales order, quarantine, or phytosanitary
restriction on sales;
(3) Cold temperatures, if cold protection is required in the
eligible plant list, unless:
(i) You have installed adequate cold protection equipment or
facilities and there is a failure or breakdown of the cold protection
equipment or facilities resulting from an insurable cause of loss
specified in section 10(a) (the insured plants must be damaged by cold
temperatures and the damage must occur within 72 hours of the failure of
such equipment or facilities unless we establish that repair or
replacement was not possible between the time of failure or breakdown
and the time the damaging temperatures occurred); or
(ii) The lowest temperature or its duration exceeded the ability of
the required cold protection equipment to keep the insured plants from
sustaining cold damage;
(4) Collapse or failure of buildings or structures, unless the
damage to the building or structures results from a cause of loss
specified in section 10(a);
(5) Any cause of loss, including those specified in section 10(a),
if the only damage suffered is a failure of plants to grow to an
expected size; or
(6) In lieu of section 12(b) of the Basic Provisions, failure to
follow recognized good nursery practices.
11. Duties in the Event of Damage or Loss
(a) In addition to your duties contained in section 14 of the Basic
Provisions,
(1) You must obtain our written consent prior to:
(i) Destroying, selling or otherwise disposing of any plant
inventory that is damaged; or
(ii) Changing or discontinuing your normal growing practices with
respect to care and maintenance of the insured plants.
(2) You must submit a claim for indemnity to us on our form, not
later than 60 days after the date of your loss, but in no event later
than 60 days after the end of the insurance period. This requirement
will be waived by us if the final adjustment of your claim is totally or
partially deferred because we are unable to make an accurate
determination
[[Page 372]]
of the amount of damage to the insured plants. If within the time frame
specified we notify you that we are unable to make an accurate
determination of damage on all or some of your damaged plants:
(i) For those damaged plants on which the loss adjustment and claim
have not been deferred, you must submit a partial claim within the time
frame specified in section 11(a)(2) and we will settle your claim on
such plants;
(ii) For those damaged plants on which the loss adjustment and claim
have been deferred, we will determine the amount of damage at the
earliest possible date but no later than one year after the end of the
insurance period for the crop year in which the damage occurred; and
(iii) You must maintain the identity of the plants on which loss
adjustment is deferred throughout the deferral period.
(b) Failure to obtain our written consent as required by section
11(a)(1) will result in the denial of your claim.
12. Settlement of Claim
We will determine indemnities for any unit as follows:
(a) Determine the under-report factor for the basic unit;
(b) Determine the occurrence deductible;
(c) Subtract field market value B from field market value A;
(d) Multiply the result of 12(c) by the under-report factor;
(e) Subtract the occurrence deductible from the result in section
12(d); and
(f) If the result of section 12(e) is greater than zero, and subject
to the limit of section 12(g);
(1) For other than catastrophic risk protection coverage, your
indemnity equals the result of section 12(e), multiplied by your share.
(2) For catastrophic risk protection coverage, your indemnity equals
the result of section 12(e) multiplied by fifty-five percent, multiplied
by your share.
(g) The total of all indemnities for the crop year will not exceed
the amount of insurance, including any peak amount of insurance during
the coverage term of the Peak Inventory Endorsement, if this endorsement
is elected.
13. Late and Prevented Planting
The late and prevented planting provisions in the Basic Provisions
are not applicable.
14. Written Agreements
(a) In lieu of section 18(a) of the Basic Provisions, you must
request in writing a written agreement with the application for the
initial crop year, and not later than the cancellation date for each
subsequent crop year, except as provided in section 14(c).
(b) In lieu of the requirements of section 18(d) of the Basic
Provisions, any written agreement is valid only until the end of the
insurance period for the crop year such written agreement applies; and
(c) In lieu of section 18(e) of the Basic Provisions, an application
for a written agreement submitted after the date of application for the
initial crop year and the cancellation date for all subsequent crop
years may be approved if:
(1) You demonstrate your physical inability to have applied timely;
and
(2) After physical examination of the nursery plant inventory, we
determine the inventory will be marketable at the value shown on the
PIVR.
15. Examples
Single Unit Example
Assume you have a 100 percent share and the plant inventory value
reported by you is $100,000, and your coverage level is 75 percent. Your
amount of insurance is $75,000 ($100,000 x .75). At the time of loss,
field market value A is $125,000, and field market value B is $80,000.
The under-report factor is .80 ($100,000 divided by $125,000). The
deductible percentage is 25 percent (100 - 75), the crop year deductible
is $25,000 (.25 x $100,000) and the occurrence deductible is $25,000
(.25 x $125,000 x .80). Your indemnity would be calculated as follows:
Step (1) Determine the under-report factor $100,000 / $125,000 =
.80;
Step (2) Field market value A minus field market value B $125,000 -
$80,000 = $45,000;
Step (3) The result of step (2) multiplied by the result of step (1)
$45,000 x .80 = $36,000;
Step (4) The result of step (3) minus the occurrence deductible
$36,000 - $25,000 = $11,000; and
Step (5) Result of step (4) multiplied by your share $11,000 x 1.000
= $11,000 indemnity payment.
Peak Inventory Value Report Example
Assume you have a second loss on the same basic unit. Your amount of
insurance has been reduced by subtracting your previous indemnity
payment of $11,000 from your amount of insurance ($75,000 - $11,000 =
$64,000). Your crop year deductible has been reduced to zero by the
previous loss ($25,000 - $36,000, but not less than zero). You purchase
a Peak Inventory Endorsement and report $60,000 in inventory. Your peak
amount of insurance is your reported inventory times your coverage level
($60,000 x .75 = $45,000). The combined amount of insurance for the
coverage term of the peak endorsement is $64,000 + $45,000 = $109,000.
Your crop year deductible is increased by $15,000 ($60,000 x .25). At
the time of loss, field market value A is $124,000, and field market
value B is $58,000. The under-report factor is
[[Page 373]]
1.00 [($160,000 - $36,000)/$124,000]. The crop year deductible is
$15,000 (.25 x $60,000) and the occurrence deductible is $15,000 (the
lesser of field market value A x .25 or the crop year deductible). Your
indemnity would be calculated as follows:
Step (1) Determine the under-report factor $160,000 - $36,000) /
$124,000 = 1.00;
Step (2) Field market value A minus field market value B $124,000 -
$58,000 = $66,000;
Step (3) The result of step (2) multiplied by the result of step (1)
$66,000 x 1.0 = $66,000;
Step (4) The result of step (3) minus the occurrence deductible
$66,000 - $15,000 = $51,000; and
Step (5) Result of step (4) multiplied by your share $51,000 x 1.000
= $51,000 indemnity payment.
Your peak amount of insurance is reduced to zero. Your amount of
insurance is reduced by the amount the indemnity exceeds the peak amount
of insurance. $64,000 - ($51,000 - 45,000) = $64,000 - $6,000 = $58,000.
[63 FR 50975, Sept. 24, 1998; 63 FR 57046, Oct. 26, 1998, as amended at
70 FR 37241, June 28, 2005; 71 FR 74456, Dec. 12, 2006]
Sec. 457.163 Nursery peak inventory endorsement.
Nursery Crop Insurance
Peak Inventory Endorsement
This endorsement is not continuous and must be purchased for each
crop year to be effective for that crop year.
In return for payment of premium for the coverage contained herein,
this endorsement will be attached to and made part of the Nursery Crop
Insurance Provisions, subject to the terms and conditions described
herein.
1. Definitions
Coverage commencement date. The later of the date you declare as the
beginning of the coverage or 30 days after a properly completed Peak
Inventory Value Report is received by us.
Coverage term. A period of time that begins on the coverage
commencement date and ends on the coverage termination date.
Coverage termination date. The date you declare that the peak amount
of insurance will cease. This date cannot be after the end of the crop
year.
Peak amount of insurance. The additional inventory value reported on
the Peak Inventory Value Report for each basic unit multiplied by your
coverage level and by your share.
Peak Inventory Value Report. A report that increases the value of
insurable plants over the value reported on the PIVR, declares the
coverage commencement and coverage termination dates, and the other
requirements of section 6 of the Nursery Crop Insurance Provisions.
Peak inventory premium adjustment factor. A factor calculated by
subtracting the monthly proration factor for the month following the
month containing the coverage termination date from the proration factor
for the month in which coverage commenced. Peak Inventory Endorsements
with a coverage termination date during the month of May will have a
premium adjustment factor equal to the proration factor for the month
containing the coverage commencement date.
Restock. Replacement of lost or damaged plants that increase the
value of your insurable inventory to an amount greater than your
remaining amount of insurance.
2. Eligibility
(a) You must have insurance under the Nursery Crop Insurance
Provision in effect for the crop year that this endorsement applies;
(b) You must have elected an additional level of coverage.
(c) You must submit a Peak Inventory Value Report, which will serve
as the application for coverage under this endorsement.
(1) The Peak Inventory Value Report may contain one or more plant
type basic units and each plant type basic unit will be considered a
separate Peak Inventory Endorsement.
(2) We may reject the Peak Inventory Value Report if all
requirements in this endorsement and the Nursery Crop Insurance
Provisions are not met.
(d) You may purchase no more than one Peak Inventory Endorsement for
each basic unit during the crop year unless you have suffered insured
losses and have restocked your nursery, in which case an additional Peak
Inventory Endorsement may be purchased after each insured loss.
3. Coverage
(a) The amount of insurance provided under the Nursery Crop
Provisions for each basic unit is increased by the peak amount of
insurance for such unit for the coverage term.
(b) Except as provided herein, this endorsement does not change,
amend or otherwise modify any other provision of your Nursery Crop
Insurance Policy.
4. Peak Insurance Period
Coverage begins on the coverage commencement date and ends at 11:59
p.m. on the coverage termination date.
5. Premium
(a) The premium for this endorsement is determined by multiplying
the peak amount of insurance by the appropriate premium
[[Page 374]]
rate and by the peak inventory premium adjustment factor.
Example of Peak Inventory Endorsement Total Premium Calculation
Assume a grower reports a peak amount of insurance on a basic unit
of $100,000 with a 65 percent coverage level and a share of 1.000. The
base premium rate is $0.051. The proration factors for the Peak
Inventory Endorsement are 0.68 for the month that coverage commenced and
0.52 for the month following the month containing the coverage
termination date, as stated in the actuarial documents. The peak premium
adjustment factor is 0.16 (0.68 - 0.52). The total premium amount for
the Peak Inventory Endorsement is $530.40 ($100,000 x 0.65 x 1.000 x
$0.051 x 0.16).
(b) The premium for this endorsement is due and payable in
accordance with section 7 of the Nursery Crop Insurance Provisions.
6. Reporting Requirements
In addition to the reporting requirements of section 6 of the
Nursery Crop Insurance Provisions, you must submit a Peak Inventory
Value Report on our form.
7. Liability Limit.
The peak amount of insurance is limited to 200 percent of the amount
of insurance established under the Nursery Crop Insurance Provisions.
[63 FR 50979, Sept. 24, 1998; 63 FR 57047, Oct. 26, 1998, as amended at
70 FR 36246, June 28, 2005; 71 FR 74456, Dec. 12, 2006]
Sec. 457.164 Nursery rehabilitation endorsement.
Nursery Crop Insurance Rehabilitation Endorsement
If you elect this endorsement and pay the additional premium
designated in the actuarial documents, this endorsement is attached to
and made a part of your Nursery Crop Insurance Provisions subject to the
terms and conditions herein. In the event of a conflict between the
Nursery Crop Insurance Provisions and this endorsement, this endorsement
will control.
1. Eligibility
(a) You must have purchased additional coverage under the Nursery
Crop Insurance Provisions, and you must comply with all terms and
conditions contained in the applicable Nursery Crop Insurance Provisions
and endorsements.
(b) All field grown nursery plants insured under the Nursery Crop
Insurance Provisions must be insured under this endorsement. Nursery
plants produced in standard nursery containers are not covered under
this endorsement.
(c) You must elect this endorsement:
(1) At the time of application for the initial crop year your field
grown nursery plants will be insured under the Nursery Crop Insurance
Provisions; or
(2) By October 1, 2005, for the 2006 crop year and by the sales
closing date for each subsequent crop year if your field grown plants
are already insured under the Nursery Crop Insurance Provisions.
2. Coverage
(a) This endorsement is only applicable to field grown plants
damaged by an insured cause of loss specified in section 10 of the
Nursery Crop Insurance Provisions.
(b) Rehabilitation costs covered by this endorsement are limited to
expenditures for labor and materials for pruning and setup (righting,
propping, and staking).
(c) To be eligible for a rehabilitation payment:
(1) The damaged plants must have a reasonable expectation of
recovery based on:
(i) The type of damage (e.g., broken limbs from high winds, trees
uprooted by hurricane, etc.);
(ii) The extent of damage (e.g., twenty percent of the limbs broken,
half the canopy removed, etc.); and
(iii) Whether the plant can recover to the point it is marketable;
(2) Verifiable records must be provided showing actual expenditures
for rehabilitation and such expenditures must be reasonable and
customary for the type and extent of damage sustained by the plants;
(3) Rehabilitation procedures must be performed directly following
the occurrence of damage and before additional deterioration of the
damaged plants occurs;
(4) We must determine it is practical to rehabilitate the damaged
plants (It is not practical if the costs of rehabilitation are greater
than the value of the plant); and
(5) The total actual rehabilitation costs for each loss occurrence
on the basic unit must be at least the lesser of 2.0 percent of field
market value A or $5,000.
(d) The maximum amount of each rehabilitation payment for each basic
unit will be the lesser of:
(1) Your total actual rehabilitation costs multiplied by the under-
report factor contained in the Nursery Crop Insurance Provisions; or
(2) An amount equal to 7.5 percent of the value (based on insurable
plant prices determined in accordance with section 6 of the Nursery Crop
Insurance Provisions) of all your insurable field grown plants that were
rehabilitated subsequent to an insured cause of loss, multiplied by the
under-report factor described in the Nursery Crop Insurance Provisions,
multiplied by the coverage level percentage you elect, and multiplied by
your share. Insurable, rehabilitated plants that
[[Page 375]]
have not recovered from damage that occurred prior to attachment of this
endorsement will have a reduced value in accordance with section 6(h) of
the Nursery Crop Insurance Provisions.
(e) The total of all rehabilitation payments for the crop year for
the basic unit will not exceed 7.5 percent of the value (based on
insurable plant prices determined in accordance with section 6 of the
Nursery Crop Insurance Provisions) of all your insurable field grown
plants in such basic unit, multiplied by the under-report factor
described in the Nursery Crop Insurance Provisions, multiplied by the
coverage level percentage you elect, and multiplied by your share.
3. Cancellation
This endorsement will continue in effect until canceled or coverage
under the Nursery Crop Insurance Provisions is cancelled or terminated.
This endorsement may be canceled by you or us for any succeeding crop
year by giving written notice to the other party on or before the
cancellation date, contained in the Nursery Crop Insurance Provisions,
preceding the crop year for which the cancellation of this endorsement
is to be effective.
[70 FR 37247, June 28, 2005]
Sec. 457.165 Millet crop insurance provisions.
The millet crop insurance provisions for the 2008 and succeeding
crop years are as follows:
FCIC policies:
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured policies:
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Millet Crop Insurance Provisions
1. Definitions
Bushel. Fifty pounds of millet, or any other quantity which is
designated in the Special Provisions for that purpose.
Harvest. Combining or threshing the millet for grain. A crop that is
swathed prior to combining is not considered harvested.
Late planting period. In lieu of the definition contained in the
Basic Provisions, the period that begins the day after the final
planting date for the insured crop and ends 20 days after the final
planting date.
Local market price. The cash price for millet with a 50-pound test
weight adjusted to zero percent foreign material content basis offered
by buyers in the area in which you normally market the millet. Factors
not associated with grading, including, but not limited to, moisture
content, will not be considered.
Millet. Proso millet produced for grain to be used primarily as bird
and livestock feed.
Nurse crop (companion crop). A crop planted into the same acreage as
another crop, that is intended to be harvested separately, and that is
planted to improve growing conditions for the crop with which it is
grown.
Planted acreage. In addition to the definition contained in the
Basic Provisions, land on which seed is initially spread onto the soil
surface by any method and is subsequently mechanically incorporated into
the soil in a timely manner and at the proper depth. Acreage planted in
any manner not contained in this definition will not be insurable unless
otherwise provided by the Special Provisions.
Swathed. Severance of the stem and grain head from the ground
without removal of the seed from the head and placing into a row.
2. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions, you may select only one price election for all the millet in
the county insured under this policy.
3. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
4. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
5. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the millet in the county for which a premium rate is
provided by the actuarial documents:
(a) In which you have a share;
(b) That is planted for harvest as grain;
(c) That is not planted as a nurse crop; and
(d) That is not (unless allowed by Special Provisions or written
agreement):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
6. Insurable Acreage
In addition to section 9 of the Basic Provisions, any acreage of the
insured crop damaged before the final planting date, to the extent that
a majority of producers in the area would not normally further care for
the crop, must be replanted unless we agree that it is not practical to
replant.
7. Insurance Period.
In accordance with section 11 of the Basic Provisions, the calendar
date for the end of
[[Page 376]]
the insurance period is the date immediately following planting (unless
otherwise specified in the Special Provisions) as follows:
(a) October 10 for North Dakota, South Dakota, and Wyoming; and
(b) October 31 for all other states.
8. Causes of Loss
In accordance with section 12 of the Basic Provisions, insurance is
provided only against the following causes of loss that occur within the
insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply due to a cause of loss
specified in sections 8(a) through (g) that also occurs during the
insurance period.
9. Duties In the Event of Damage or Loss
In accordance with section 14 of the Basic Provisions, the
representative samples of the unharvested crop must be at least 10 feet
wide and extend the entire length of each field in the unit. The samples
must not be harvested or destroyed until the earlier of our inspection
or 15 days after harvest of the balance of the unit is completed.
10. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production:
(1) For any optional unit, we will combine all optional units for
which acceptable records of production were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim on any unit by:
(1) Multiplying the insured acreage by the production guarantee;
(2) Subtracting the total production to count (See section 10(c))
from the result of section 10(b)(1);
(3) Multiplying the result of section 10(b)(2) by your price
election; and
(4) Multiplying the result of section 10(b)(3) by your share.
For example:
You have a 100 percent share in 100 acres of millet in the unit,
with a guarantee of 15 bushels per acre and a price election of $4.00
per bushel. You are only able to harvest 800 bushels. Your indemnity
would be calculated as follows:
(1) 100 acres x 15 bushel = 1,500 bushel guarantee;
(2) 1,500 bushel guarantee - 800 bushel production to count = 700
bushel loss;
(3) 700 bushels x $4.00 price election = $2,800 loss; and
(4) $2,800 x 100 percent share = $2,800 indemnity payment.
(c) The total production (bushels) to count from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Your appraised production will not be less than the production
guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide records of production that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies and excess moisture in accordance with
subsection 10(d));
(iv) Potential production on insured acreage you want to put to
another use or you wish to abandon, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end if you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us. (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature millet may be adjusted for excess moisture and quality
deficiencies. If moisture adjustment is applicable, it will be made
prior to any adjustment for quality.
(1) Production will be reduced by .12 percent for each 0.1 percent
point of moisture in
[[Page 377]]
excess of 12 percent. We may obtain samples of the production to
determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality, result in the millet weighing less than
50 pounds per bushel; or
(ii) Substances or conditions are present that are identified by the
Food and Drug Administration or other public health organizations of the
United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a
cause of loss against which insurance is provided under these crop
provisions and within the insurance period;
(ii) The deficiencies, substances, or conditions result in a net
price for the damaged production that is less than the local market
price;
(iii) All determinations of these deficiencies, substances, or
conditions are made using samples of the production obtained by us or by
a disinterested third party approved by us; and
(iv) The samples are analyzed by a grader or by a laboratory
approved by us with regard to substances or conditions injurious to
human or animal health (test weight for quality adjustment purposes may
be determined by our loss adjuster).
(4) Millet production that is eligible for quality adjustment, as
specified in sections 10(d)(2) and (3), will be reduced by the quality
adjustment factor contained in the Special Provisions if quality
adjustment factors are not available in the county, the eligible millet
production will be reduced as follows:
(i) The market price of the qualifying damaged production and the
local market price will be determined on the earlier of the date such
quality adjusted production is sold or the date of final inspection for
the unit.
(ii) The price for the qualifying damaged production will be the
market price for the local area to the extent feasible. Discounts used
to establish the net price of the damaged production will be limited to
those that are usual, customary, and reasonable. The price will not be
reduced for:
(A) Moisture content;
(B) Damage due to uninsured causes; or
(C) Drying, handling, processing, or any other costs associated with
normal harvesting, handling, and marketing of the millet; except, if the
value of the damaged production can be increased by conditioning, we may
reduce the value of the production after it has been conditioned by the
cost of conditioning but not lower than the value of the production
before conditioning. We may obtain prices from any buyer of our choice.
If we obtain prices from one or more buyers located outside your local
market area, we will reduce such prices by the additional costs required
to deliver the millet to those buyers.
(iii) The value of the damaged or conditioned production determined
in section 10(d)(4)(ii) will be divided by the local market price to
determine the quality adjustment factor.
(iv) The number of bushels remaining after any reduction due to
excessive moisture (the moisture-adjusted gross bushels, if appropriate)
of the damaged or conditioned production under section 10(d)(1) will
then be multiplied by the quality adjustment factor from section
10(d)(4)(iii) to determine the production to count.
(e) Any production harvested from plants growing in the insured crop
may be counted as production of the insured crop on a weight basis.
11. Late Planting
In lieu of the provisions contained in section 16(a) of the Basic
Provisions, the production guarantee for each acre planted to the
insured crop during the late planting period, unless otherwise specified
in the Special Provisions, will be reduced by:
(a) One percent per day for the first through the tenth day; and
(b) Three percent per day for the eleventh through the twentieth
day.
12. Prevented Planting
Your prevented planting coverage will be 60 percent of your
production guarantee for timely planted acreage. If you have additional
levels of coverage, as specified in 7 CFR part 400, subpart T, and pay
an additional premium, you may increase your prevented planting coverage
to a level specified in the actuarial documents.
[67 FR 3037, Jan. 23, 2002, as amended at 67 FR 5925, Feb. 8, 2002; 72
FR 48229, Aug. 23, 2007]
Sec. 457.166 Blueberry crop insurance provisions.
The Blueberry Crop Insurance Provisions for the 2005 and succeeding
crop years are as follows:
FCIC policies:
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured policies
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Blueberry Crop Insurance Provisions
If a conflict exists among the policy provisions, the order of
priority is as follows: (1)
[[Page 378]]
The Catastrophic Risk Protection Endorsement, if applicable; (2) the
Special Provisions; (3) these Crop Provisions; and (4) the Basic
Provisions with (1) controlling (2), etc.
1. Definitions
Damaged blueberries. Blueberries ready to harvest that due to an
insurable cause of loss as shown in section 8 of these Crop Provisions
do not meet the United States Standards for Grades of Blueberries, U.S.
No. 1, or such other applicable grading standards specified in the
Special Provisions.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, or permitting the general public to enter the field for the
purpose of picking the crop.
Harvest. Picking mature blueberries from the bushes either by hand
or machine.
Mature blueberry production. Blueberries ready to harvest that meet
or exceed the United States Standards for Grades of Blueberries, U.S.
No. 1, or such other applicable grading standards contained in the
Special Provisions.
Pound. Sixteen ounces avoirdupois.
Production guarantee (per acre). The number of pounds determined by
multiplying the approved yield per acre by the coverage level percentage
you elect.
Prune. A cultural practice performed to increase blueberry
production as follows:
(a) For lowbush blueberries, a process by which the acreage is
either burned or mowed; and
(b) For all other blueberries, a process by which parts of the bush
are cut off or the bush is cut back.
2. Unit Division
The enterprise, whole-farm, and optional unit provisions in the
Basic Provisions are not applicable, and blueberry acreage is limited to
basic units as defined in section 1 of the Basic Provisions, unless
otherwise specified in the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one price election percentage for each
blueberry type designated in the Special Provisions. The price elections
you choose for each type must have the same percentage relationship to
the maximum price offered by us for each type. For example, if you
choose 100 percent of the maximum price election for one type, you must
also choose 100 percent of the maximum price election for all other
types.
(b) You must report (by type, if applicable) by the production
reporting date designated in section 3 of the Basic Provisions:
(1) For all types of blueberries: any damage; removal of bushes;
change in practices, or any other circumstance that may reduce the
expected yield below the yield upon which the insurance guarantee is
based; and the number of affected acres; and
(2) For highbush and rabbiteye blueberry types:
(i) The number of bearing bushes on insurable and uninsurable
acreage; and
(ii) The age of the bushes and the planting pattern.
(c) We will reduce the yield used to establish your production
guarantee as necessary, based on our estimate of the effect of the
following: Removal of bushes; damage to bushes; changes in practices;
and any other circumstance that may affect the yield potential of the
insured crop. If you fail to notify us of any circumstance that may
reduce your yields from previous levels, we will reduce your production
guarantee as necessary at any time we become aware of the circumstance.
(d) You may not increase your elected or assigned coverage level or
the ratio of your price election to the maximum price election we offer
for the next year if a cause of loss that could or would reduce the
yield of the insured crop is evident prior to the time you request the
increase.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is August 31 preceding the cancellation date.
5. Cancellation and Termination Dates
(a) In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are November 20.
(b) If your blueberry policy is canceled or terminated by us for any
crop year, in accordance with the terms of the policy, after insurance
attached for that crop year but on or before the cancellation and
termination dates whichever is later, insurance will be considered to
have not attached for that crop year and no premium, administrative fee,
or indemnity will be due for such crop year.
(c) We may not cancel your policy when an insured cause of loss has
occurred after insurance attached, but prior to the cancellation date.
However, your policy can be terminated if a cause for termination
contained in sections 2 or 27 of the Basic Provisions exists.
6. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the blueberries in the county for which a
[[Page 379]]
premium rate is provided in the actuarial documents:
(1) In which you have a share;
(2) That are grown on bush varieties that:
(i) Were commercially available when the bushes were set out or have
subsequently became commercially available; and
(ii) Are varieties adapted to the area of the following types:
(A) Highbush blueberries;
(B) Lowbush blueberries;
(C) Rabbiteye blueberries; or
(D) Other blueberry types listed on the Special Provisions.
(3) That are produced on bushes that have reached the minimum
insurable age or have produced the minimum yield per acre designated in
the Special Provisions; and
(4) That, if inspected, are considered acceptable by us.
(b) Lowbush blueberry plants (or other types as specified in the
Special Provisions) must be pruned every other year to be eligible for
insurance.
7. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) For the year of application, coverage begins on November 21 of
the calendar year prior to the year the insured crop normally blooms,
except that, if your application is received by us after November 1,
insurance will attach on the twentieth day after your properly completed
application is received in our local office unless we inspect the
acreage during the 20-day period and determine that it does not meet
insurability requirements. You must provide any information that we
require for the crop or to determine the condition of the blueberry
acreage.
(2) For each subsequent crop year that the policy remains
continuously in force, coverage begins on the day immediately following
the end of the insurance period for the prior crop year. Policy
cancellation that results solely from transferring an existing policy to
a different insurance provider for a subsequent crop year will not be
considered a break in continuous coverage.
(3) The calendar date for the end of insurance period for each crop
year is September 30 for Michigan and September 15 for all other states,
unless specified otherwise in the Special Provisions.
(4) Notwithstanding the provisions in this section, coverage may not
begin for a crop year if the policy is cancelled or terminated in
accordance with section 5(b).
(b) In addition to the provisions of section 11 of the Basic
Provisions:
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period. There will be
no coverage of any insurable interest acquired after the acreage
reporting date.
(2) If you relinquish your insurable share on any insurable acreage
of blueberries on or before the acreage reporting date for the crop
year, insurance will not be considered to have attached to, and no
premium or indemnity will be due for such acreage for that crop year
unless:
(i) A transfer of coverage and right to an indemnity, or a similar
form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(3) If you relinquish your insurable share on any insurable acreage
of blueberries after the acreage reporting date for the crop year,
insurance coverage will be provided for any loss due to an insurable
cause of loss that occurred prior to the date that you relinquished your
insurable share and the whole premium will be due for such acreage for
that crop.
8. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the unit;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Earthquake;
(6) Volcanic eruption;
(7) An insufficient number of chilling hours to effectively break
dormancy;
(8) Wildlife, unless appropriate control measures have not been
taken; and
(9) Failure of the irrigation water supply, if caused by a cause of
loss specified in this section that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to:
(1) Failure to install and maintain a proper drainage system;
(2) Failure to harvest in a timely manner;
(3) Inability to market the blueberries for any reason other than
actual physical damage to the blueberries from an insurable cause
specified in this section (for example,
[[Page 380]]
we will not pay you an indemnity if you are unable to market due to
quarantine, boycott, or refusal of any person to accept production); or
(4) Mechanical damage.
9. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 of the Basic
Provisions, the following will apply:
(a) You must notify us:
(1) Within 3 days of the date harvest should have started if the
crop will not be harvested.
(2) Within 24 hours if any cause of loss occurs:
(i) Within 15 days of harvest;
(ii) When the blueberries are mature and ready for harvest; or
(iii) During harvest.
(3) At least 15 days before any production from any unit will be
sold by direct marketing. We will conduct an appraisal that will be used
to determine your production to count sold by direct marketing. If
damage occurs after this appraisal, we will conduct an additional
appraisal. These appraisals and acceptable records provided by you will
be used to determine your production to count. Failure to give timely
notice that production will be sold by direct marketing will result in
an appraised amount of production to count that is not less than the
production guarantee per acre if such failure results in our inability
to make the required appraisal.
(4) At least 15 days prior to the beginning of harvest if you intend
to claim an indemnity on any unit as a result of previously reported
damage, so that we may inspect the damaged production.
(b) You must not sell or dispose of the damaged crop until after we
have given you written consent to do so. If you fail to meet the
requirements of this section, and such failure results in our inability
to inspect the damaged production, all such production will be
considered undamaged and included as production to count.
(c) You may be required to harvest a sample, selected by us, to be
used for appraisal purposes.
10. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide acceptable production records for any basic unit,
we will allocate any commingled production to such units in proportion
to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by
its respective production guarantee;
(2) Multiplying each result in section 10(b)(1) by the respective
price election, by type if applicable;
(3) Totaling the results in section 10(b)(2) if there is more than
one type;
(4) Multiplying the total production to count for each blueberry
type, if applicable, by the respective price election;
(5) Totaling the results in section 10(b)(4), if there is more than
one type;
(6) Subtracting the result in section 10(b)(5) from the result in
section 10(b)(3); and
(7) Multiplying the result in section 10(b)(6) by your share.
Example For Section 10(b)
You have 100 percent share in 25 acres of highbush blueberries with
a production guarantee of 4,000 pounds per acre and a price election of
$.45 per pound. You are only able to harvest 62,500 total pounds because
adverse weather reduced the yield. Your indemnity would be calculated as
follows:
A. 25 acres x 4,000 pound production guarantee/acre = 100,000 pound
total production guarantee;
B. 100,000 pounds x $.45 price election = $45,000 guarantee;
C. One type only, so same as (2) above, $45,000;
D. 62,500 pounds production to count x $.45 price election = $28,125
value of production to count;
E. One type only, so same as (4) above, $28,125;
F. $45,000-$28,125 = $16,875 loss; and
G. $16,875 x 100 percent share = $16,875 indemnity payment.
End of Example
(c) The total production to count (in pounds) from all insurable
acreage on the unit will include:
(1) All appraised blueberry production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the
requirements contained in section 9;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records;
(ii) Production lost due to uninsured causes; and
(iii) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us
[[Page 381]]
of further damage or that harvest is general in the area unless you
harvest the crop, in which case we will use the harvested production. If
you do not continue to care for the crop, our appraisal made prior to
deferring the claim will be used to determine the production to count.
(2) All harvested mature blueberry production from the insurable
acreage.
(d) If you have harvested or unharvested damaged blueberries and the
percent of damaged blueberries exceeds that shown in the Special
Provisions for that type, production to count for the damaged unit or
portion of a unit will be determined as follows:
(1) The blueberries from the specific acreage will not be considered
production to count if no blueberries are harvested and sold from such
acreage;
(2) For damaged blueberries that are harvested and sold, the
production to count for such damaged blueberries will be determined by:
(i) Subtracting the harvest costs contained in the Special
Provisions from the price received for the damaged blueberries;
(ii) Dividing the result in section 10(d)(2)(i) by the price
election; and
(iii) Multiplying the resulting factor from section 10(d)(2)(ii),
not less than zero, by the pounds of damaged blueberries;
(e) If you have harvested or unharvested damaged blueberries and the
percent of damaged blueberries does not exceed that shown in the Special
Provisions for that type, the production to count for the damaged unit
or portion of a unit will be the appraised or harvested production of
blueberries.
(f) If we determine that frost protection equipment, as shown on
your accepted application, was not properly utilized, the indemnity for
the affected acreage in the unit will be reduced by the percentage
reduction allowed for frost protection equipment as specified in the
Special Provisions. You must, at our request, provide us records by date
for each period the frost protection equipment was used.
11. Late and Prevented Planting
The late and prevented planting provisions in the Basic Provisions
are not applicable.
[69 FR 52155, Aug. 25, 2004]
Sec. 457.167 Pecan revenue crop insurance provisions.
The Pecan Revenue Crop Insurance Provisions for the 2014 and
succeeding crop years are as follows:
FCIC policies:
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured policies: (Appropriate title for insurance provider)
Both FCIC and reinsured policies: Pecan Revenue Crop Insurance
Provisions
1. Definitions
AMS. The Agricultural Marketing Service of the United States
Department of Agriculture.
Amount of insurance per acre. The amount determined by multiplying
your approved average revenue per acre by the coverage level percentage
you elect.
Approved average revenue per acre. The total of your average gross
sales per acre based on the most recent consecutive four years of sales
records building to six years and dividing that result by the number of
years of average gross sales per acre. If you provide more than four
years of sales records, they must be the most recent consecutive six
years of sales records. If you do not provide at least four years of
gross sales records, your approved average revenue will be:
(1) The average of the two most recent consecutive years of your
gross sales per acre and two years of the T-revenue; or
(2) If you do not provide any gross sales records, the T-revenue.
Average gross sales per acre. Your gross sales of pecans for a crop
year divided by your net acres of pecans grown during that crop year.
For example, if for the crop year your gross sales were $100,000 and
your net acres of pecans were 100, then your average gross sales per
acre for the crop year would be $1,000.
Crop year. The period beginning February 1 of the calendar year in
which the pecan trees bloom and extending through January 31 of the year
following such bloom, and will be designated by the calendar year in
which the pecan trees bloom.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, sheller, shipper, buyer or broker. Examples
of direct marketing include selling through an on-farm or roadside
stand, or a farmer's market, or permitting the general public to enter
the field for the purpose of harvesting all or a portion of the crop, or
shelling and packing your own pecans.
Gross sales. Total value of in-shell pecans grown during a crop
year.
Harvest. Collecting mature pecans from the orchard.
Hedge. The removal of vegetative growth from the tree to prevent
overcrowding of pecan trees.
In-shell pecans. Pecans as they are removed from the orchard with
the nut-meats in the shell.
[[Page 382]]
Interplanted. Acreage on which two or more crops are planted in any
form of alternating or mixed pattern.
Market price. The market price is:
(1) The average of the AMS prices for the nearest location for
similar quality, quantity, and variety of in-shell pecans published
during the week you sell any of your pecans, you harvest your pecans if
they are not sold, or your pecans are appraised if you are not
harvesting them, unless otherwise provided in the Special Provisions.
For example, if you harvest production on November 14 but do not sell
the production, the average of the AMS prices for the week containing
November 14 will be used to determine the market price for the
production harvested on November 14; or
(2) If AMS prices are not published for the week, the average price
per pound for in-shell pecans of the same variety or varieties insured
offered by buyers on the day you sell any of your pecans, you harvest
any of your pecans if they are not sold, or your pecans are appraised if
you are not harvesting them, in the area in which you normally market
the pecans (If buyers are not available in your immediate area, we will
use the average in-shell price per pound offered by buyers nearest to
your area).
Net acres. The insured acreage of pecans multiplied by your share.
Pound. A unit of weight equal to sixteen ounces avoirdupois of in-
shell pecans.
Scion--Twig or portion of a pecan variety used in top work.
Sequentially thinned. A method of systematically removing pecan
trees for the purpose of improving sunlight penetration and maintaining
the proper spacing necessary for continuous production.
Top work. To graft scions of one pecan variety onto the tree or
branch of another pecan variety.
Transitional revenue (T-revenue). A value determined by FCIC and
published in the actuarial documents.
Two-year coverage module. A two-crop-year subset of a continuous
policy in which you agree to insure the crop for both years of the
module, and we agree to offer the same premium rate, amount of insurance
per acre, coverage level, terms and conditions of insurance for each
year of coverage except for legislatively mandated changes, as long as
all policy terms and conditions are met for each year of the coverage
module, including the timely payment of premium, and you have not done
anything that would result in a revision to these terms, as specified in
this policy.
2. Unit Division.
Except as provided in these Crop Provisions, for both years of the
two-year coverage module a unit will be:
(a) In addition to the requirements of section 34(a)(4) of the Basic
Provisions, an enterprise unit if the insured crop is located on at
least two parcels of non-contiguous land and at least two of the parcels
must contain at least the lesser of 20 acres or 20 percent of the
insured crop acreage in the enterprise unit;
(b) A basic unit as defined in section 1 of the Basic Provisions; or
(c) In lieu of the requirements contained in sections 34(b) and (c)
of the Basic Provisions, basic units may be divided into optional units
if, for each optional unit, the following criteria are met:
(1) Each optional unit you select must be located on non-contiguous
land;
(2) Separate records of production are provided for at least the
most recent consecutive two crop years. The records will be used to
verify that trees from each unit meet the minimum production requirement
contained in section 8(d) and to establish the approved average revenue
per acre for the optional units selected; and
(3) Optional units are selected and identified on the acreage report
by the acreage reporting date of the first year of the two-year coverage
module. Units will be determined when the acreage is reported, but may
be adjusted or combined to reflect the actual unit structure when
adjusting a loss. No further unit division may be made after the acreage
reporting date for any reason.
3. Insurance Guarantees and Coverage Levels for Determining Indemnities
In lieu of section 3 of the Basic Provisions, the following applies:
(a) You may select only one coverage level for both years of the
two-year coverage module for all pecans in the county. By giving us
written notice, you may change the coverage level for the succeeding
two-year coverage module not later than the sales closing date of the
next two-year coverage module.
(b) For coverage in excess of catastrophic risk protection, your
insurance guarantee for the unit will be determined by multiplying your
amount of insurance per acre by the net acres.
(c) For coverage under the Catastrophic Risk Protection Endorsement,
your insurance guarantee for each unit equals your approved average
revenue per acre multiplied by the percentage listed in the Special
Provisions and multiplied by the net acres.
(d) Your amount of insurance per acre will remain the same as stated
in the Summary of Coverage on each unit for each year of the two-year
coverage module unless:
(1) You fail to provide acceptable records necessary to determine a
loss for optional units. This will result in optional units being
adjusted or combined to reflect the actual unit structure at the time of
discovery. Your
[[Page 383]]
amount of insurance per acre will be recalculated for the current crop
year and the subsequent crop year of the two-year coverage module
(provided another year remains in the two-year coverage module).
(2) You increase the previous year's insured acreage by more than
12.5 percent, which will result in the recalculation of your approved
average revenue using the sales records for the added acreage. If such
sales records are not available for the added acreage, the T-revenue
will apply to the added acreage.
(3) You take any other action that may reduce your gross sales below
your approved average revenue, which will result in an adjustment to
your approved average revenue to conform to the amount of the reduction
in gross sales expected from the action.
(4) Your gross sales amount is assigned in accordance with section
3(f).
(e) If you remove a contiguous block of trees from the unit, you
must report such removal on your acreage report in accordance with
section 6, or within 3 days if removal has occurred after the acreage
reporting date, and your insurable acreage will be reduced by the number
of acres of trees that have been removed.
(f) You must report for each unit your gross sales including the
amount of harvested and appraised potential production to us for each
year of the two-year coverage module on or before the acreage reporting
date for the first year of the next two-year coverage module.
(1) If you do not report your gross sales in accordance with this
paragraph, we will assign a gross sales amount for any year you fail to
report and you will not be eligible for optional units for both years of
the two-year coverage module. The gross sales amount assigned by us will
be not greater than the T-revenue for the current coverage module.
(2) If your gross sales are reported after the acreage reporting
date for the two-year coverage module, we will readjust your average
gross sales per acre for the next crop year.
(3) The gross sales or your assigned gross sales amount will be used
to compute your sales history for the next two-year coverage module.
(4) If you filed a claim for any year, the value of harvested
production and appraised potential production used to determine your
indemnity payment will be the gross sales for that year.
(g) Hail and fire coverage may be excluded from the covered causes
of loss for your insured crop only if you selected additional coverage
of not less than 65 percent of your approved average revenue per acre,
and you have purchased the same or a higher dollar amount of coverage
for hail and fire from us or any other source.
(h) If you have additional coverage for pecans in the county and the
acreage has been designated as ``high-risk'' by FCIC, you will be able
to obtain a High-Risk Land Exclusion Option for the high-risk land under
the additional coverage policy and insure the high-risk acreage under a
separate Catastrophic Risk Protection Endorsement, provided that the
Catastrophic Risk Protection Endorsement is obtained from the same
insurance provider from which the additional coverage was obtained.
(i) Any person may sign any document related to pecan crop insurance
coverage on behalf of any other person covered by this policy provided
that person has a properly executed power of attorney or such other
legally sufficient document authorizing such person to sign.
4. Contract Changes
In lieu of the provisions contained in section 4 of the Basic
Provisions:
(a) We may change the terms of your coverage under this policy for
any two-year coverage module. Any change to your policy within a two-
year coverage module may only be done in accordance with this policy.
(b) Any changes in policy provisions, amounts of insurance, premium
rates, and program dates (except as allowed herein or as specified in
section 3) can be viewed on RMA's Web site not later than the contract
change date contained in these Crop Provisions. We may revise this
information after the contract change date to correct clerical errors.
(c) The contract change date is October 31 preceding the next two-
year coverage module.
(d) After the contract change date, all changes specified in section
4(b) will also be available upon request from your crop insurance agent.
You will be provided, in writing, a copy of the changes to the Basic
Provisions, Crop Provisions, and a copy of the Special Provisions. If
changes are made that will be effective for the second year of the two-
year coverage module, such copies will be provided not later than 30
days prior to the termination date. If changes are made that will be
effective for a subsequent two-year coverage module, such copies will be
provided not later than 30 days prior to the cancellation date. If
available from us, you may elect to receive these documents and changes
electronically. For changes effective for subsequent two-year coverage
modules, acceptance of the changes will be conclusively presumed in the
absence of written notice from you to change or cancel your insurance
coverage in accordance with the terms of this policy.
5. Life of Policy, Cancellation and Termination Dates
(a) In lieu of section 2(a) of the Basic Provisions, this is a
continuous policy with a
[[Page 384]]
two-year coverage module and will remain in effect for each subsequent
two-year coverage module until canceled by you in accordance with the
terms of this policy or terminated by us or by the operation of the
terms of this policy.
(b) In lieu of section 2(c) of the Basic Provisions, after
acceptance of your application, you may not cancel or transfer your
policy to a different insurance provider during the initial two-year
coverage module. Thereafter, the policy will continue in force for each
succeeding two-year coverage module unless canceled, terminated, or
transferred to a different insurance provider in accordance with the
terms of this policy.
(c) In lieu of section 2(d) of the Basic Provisions, this contract
may be canceled by either you or us for the next two-year coverage
module by giving written notice on or before the cancellation date.
(d) Your policy may be terminated before the end of the two-year
coverage module if you are determined to be ineligible to participate in
any crop insurance program authorized under the Act in accordance with
section 2(e) of the Basic Provisions or 7 CFR part 400, subpart U.
(e) The cancellation date is January 31 of the second crop year of
each two-year coverage module.
(f) The termination date is January 31 of each crop year.
6. Report of Acreage
(a) In addition to the requirements of section 6 of the Basic
Provisions you must report, by the acreage reporting date designated in
the Special Provisions:
(1) Any damage to trees, removal of trees, change in practices,
sequential thinning or any other action that may reduce the gross sales
below the approved average revenue upon which the amount of insurance
per acre is based and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern;
(4) Any acreage that is excluded under sections 8 or 9; and
(5) Your gross sales receipts as required under section 3(f).
(b) We will reduce the amount of your insurable acreage based on our
estimate of the removal of a contiguous block of trees or damage to
trees of the insured crop. We will reduce your amount of insurance per
acre based on our estimate of the expected reduction in gross sales from
a change in practice or sequential thinning.
(c) If you fail to notify us of any circumstance stated in section
6(a)(1), we will reduce your insured acreage or your amount of insurance
per acre to an amount to reflect the expected reduction of gross sales,
as applicable, at any time we become aware of the circumstance.
7. Annual Premium and Administrative Fees
In addition to the requirements of section 7 of the Basic
Provisions, the premium and administrative fees, as applicable, are due
annually for each year of the two-year insurance period.
8. Insured Crop
In accordance with section 8 of the Basic Provisions, the crop
insured will be all the pecans in the county for which a premium rate is
provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for harvest as pecans;
(c) That are grown in an orchard that, if inspected, is considered
acceptable by us;
(d) That are grown on trees that have produced at least 600 pounds
of pecans in-shell per acre (or an amount provided in the Special
Provisions) in at least one of the previous four crop years, unless we
inspect and allow insurance by written agreement. This amount of
production must be achieved subsequent to any top work that occurs
within a unit;
(e) That are grown on varieties or a grouping of varieties within a
unit that are not designated as uninsurable in the Special Provisions;
(f) That are in an orchard that consists of a minimum of one (1)
contiguous acre, unless allowed by written agreement; and
(g) That are not (unless allowed by the Special Provisions or by
written agreement):
(1) Grown on trees that are or have been hedged; or
(2) Direct marketed to consumers.
9. Insurable Acreage
In lieu of the provisions in section 9 of the Basic Provisions that
prohibit insurance attaching to a crop planted with another crop, pecans
interplanted with another perennial crop are insurable if allowed by the
Special Provisions or by written agreement.
10. Insurance Period
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) Coverage begins on February 1 of each crop year. However, for
the year of application, we will inspect all pecan acreage and will
notify you of the acceptance or rejection of your application not later
than 30 days after the sales closing date. If we fail to notify you by
that date, your application will be accepted unless other grounds exist
to reject the application, as specified in section 2 of the Basic
Provisions of the application. You must provide any information that we
require for the crop or to determine the condition of the orchard.
[[Page 385]]
(2) For each subsequent two-year coverage module that the policy
remains continuously in force, coverage begins on the day immediately
following the end of the insurance period for the prior two-year
coverage module. Policy cancellation that results solely from
transferring an existing policy to a different insurance provider for a
subsequent two-year coverage module will not be considered a break in
continuous coverage.
(3) The calendar date for the end of the insurance period is January
31 of the crop year.
(b) In addition to the provisions of section 11 of the Basic
Provisions:
(1) If you acquire an insurable share in any insurable acreage after
coverage begins but on or before the acreage reporting date for the crop
year, and after an inspection we consider the acreage acceptable,
insurance will be considered to have attached to such acreage on the
calendar date for the beginning of the insurance period. Acreage
acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage
of pecans on or before the acreage reporting date for the crop year,
insurance will not be considered to have attached to, and no premium or
indemnity will be due for such acreage for that crop year unless:
(i) A request for a transfer of right to an indemnity is submitted
by all affected parties and approved by us;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(3) If you relinquish your insurable share on any insurable acreage
of pecans after the acreage reporting date for the crop year, insurance
coverage will be provided for any loss due to an insurable cause of loss
that occurred prior to the date that you relinquished your insurable
share and the whole premium will be due for such acreage for that crop
year.
11. Causes of Loss
(a) In lieu of the first sentence of section 12 of the Basic
Provisions, insurance is provided against an unavoidable decline in
revenue due to the following causes of loss that occur within the
insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or unmulched pruning debris has not been removed from the
orchard;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption;
(8) Failure of the irrigation water supply, if caused by a cause of
loss specified in sections 11(a)(1) through (7) that occurs during the
insurance period; or
(9) Decline in market price;
(b) If damage occurs before the beginning of the crop year, coverage
is only provided if and to the extent the crop was insured the previous
crop year;
(c) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to the inability to market the pecans for any reason
other than actual physical damage from an insurable cause specified in
this section. For example, we will not pay you an indemnity if you are
unable to market due to quarantine, boycott, or refusal of any person to
accept production.
12. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 of the Basic
Provisions, the following will apply:
(a) You must notify us within 3 days of the date harvest should have
started if the crop will not be harvested.
(b) If the Special Provisions permit or you have a written agreement
authorizing direct marketing, you must notify us at least 15 days before
harvest begins if any production from any unit will be sold by direct
marketing. We will conduct an appraisal that will be used to determine
your production to count for production that is sold by direct
marketing. If damage occurs after this appraisal, we will conduct an
additional appraisal. These appraisals, and any acceptable records
provided by you, will be used to determine the dollar value of your
production to count. Failure to give timely notice that production will
be sold by direct marketing will result in an appraised dollar value of
production to count that is not less than the amount of insurance per
acre for the direct-marketed acreage if such failure results in our
inability to make the required appraisal.
(c) If you intend to claim an indemnity, you must notify us at least
15 days prior to the beginning of harvest, or immediately if a loss
occurs during harvest, so that we may inspect the damaged production.
(d) You must not sell, destroy or dispose of the damaged crop until
after we have given you written consent to do so.
(e) If you fail to meet the requirements of this section, and such
failure results in our inability to inspect the damaged production, all
such production will be considered undamaged and included as production
to count.
[[Page 386]]
(f) You may be required to harvest a sample, selected by us, to be
used for appraisal purposes.
13. Settlement of Claim
(a) Indemnities will be calculated separately for each year in the
two-year coverage module.
(b) We will determine your loss on a unit basis. In the event you
are unable to provide separate acceptable records for any:
(1) Optional unit, we will combine all optional units for which such
records were not provided and this will be the unit structure the
current crop year and the subsequent crop year of the two-year coverage
module (provided another year remains in the two-year coverage module);
or
(2) Basic unit, we will allocate commingled production or revenue to
each basic unit in proportion to our liability on the harvested acreage
for each unit.
(c) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the amount of insurance per acre by the net acres of
the insured pecans;
(2) Subtracting the dollar value of the total production to count as
determined in section 13(d) from the result of section 13(c)(1):
(i) For additional coverage, the total dollar value of the total
production to count determined in accordance with section 13(d); or
(ii) For catastrophic risk protection coverage, the result of
multiplying the total dollar value of the total production to count
determined in accordance with section 13(d) by the catastrophic risk
protection factor contained in the Special Provisions; and
(d) The dollar value of the total production to count from all
insurable acreage will include:
(1) The value of all appraised production as follows:
(i) Not less than your amount of insurance per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the
requirements contained in section 12;
(C) That is damaged solely by uninsured causes;
(D) For which no sales records or unacceptable sales records are
provided to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production;
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us of further damage or that
harvest is general in the area unless you harvested the crop, in which
case we will use the harvested production. If you do not continue to
care for the crop, our appraisal made prior to deferring the claim will
be used to determine the value of production to count; and
(v) The market price will be used to value all appraised production
in section 13(d)(1); and
(2) The value of all harvested production from the insurable acreage
determined as follows:
(i) The dollar amount obtained by multiplying the number of pounds
of pecans sold by the price received for each day the pecans were sold.
(If the price received is not verifiable by sales receipts or if the
pecan production was direct marketed, the market price will be used.
Unless otherwise provided in the Special Provisions, and excluding
pecans sold under contract, the price received will be not less than 95
percent of the lowest AMS price for the nearest location for similar
quality, quantity, and variety of in-shell pecans published during the
week you sell your pecans. If AMS prices are not published for the week
the pecans were sold, the price received will be not less than 95
percent of the lowest price per pound for in-shell pecans of the same
variety or varieties insured offered by buyers in the area you normally
market the pecans or the area nearest to you if prices are not available
in your immediate area on the day you sell your pecans.);
(ii) Totaling the results of section 13(d)(2)(i), as applicable;
(iii) The dollar amount obtained by multiplying the number of pounds
of pecans harvested, but not sold production, by the market price;
(iv) Totaling the result of section 13(d)(2)(iii), as applicable;
and
(v) Totaling the results of section 13(d)(2)(ii) and (iv).
Pecan Revenue Example
------------------------------------------------------------------------
Average
Average gross
Year Acres pounds sales per
per acre acre
------------------------------------------------------------------------
4...................................... 100 750 $1,050
3...................................... 100 625 $625
2...................................... 100 1250 $750
1...................................... 100 200 $250
------------------------------------------------------------------------
Total Average Gross Sales Per Acre = $2,675
------------------------------------------------------------------------
The approved average revenue equals the total average gross sales
per acre divided by the number of years ($2,675 / 4 = $669).
The amount of insurance per acre equals the approved average revenue
multiplied by the coverage level percent ($669 x .65 = $435).
Assume pecan trees in the unit experienced damage to blooms due to a
late freeze causing low production. You produced, harvested,
[[Page 387]]
and sold 300 pounds per acre of pecans from 70 acres and received an
actual price of $0.75 per pound. On the other 30 acres, the pecans
suffered damage due to drought. You elected not to harvest the other 30
acres of pecans. The 30 acres were appraised at 100 pounds per acre and
on the day of the appraisal the average AMS price was $0.65. The total
dollar value of production to count is (300 pounds of pecans x 70 net
acres x $0.75) + (100 pounds x 30 net acres x $0.65) = $15,750 + $1,950
= $17,700.
The indemnity would be:
The amount of insurance per acre multiplied by the net acres minus
the dollar value of the total production to count equals the dollar
amount of indemnity ($435 x 100 = $43,500.00 - $17,700.00 = $25,800).
14. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
15. Substitution of Yields
The substitution of yield provisions of the Basic Provisions are not
applicable.
16. Written Agreements
Not withstanding the provisions of section 18 of the Basic
Provisions, for counties with actuarial documents for pecans, you must
have at least two years of production and gross sales records and for
counties without actuarial documents, you must have at least four years
of production and gross sales records to qualify for a written
agreement.
[69 FR 52163, Aug. 25, 2004; 69 FR 54179, Sept. 7, 2004, as amended at
69 FR 63041, Oct. 29, 2004; 78 FR 13459, Feb. 28, 2013; 78 FR 33691,
June 5, 2013]
Sec. 457.168 Mustard crop insurance provisions.
The Mustard Crop Insurance Provisions for the 2009 and succeeding
crop years are as follows:
FCIC policies:
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured policies:
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Mustard Crop Insurance Provisions.
1. Definitions
Base contract price. The price per pound (U.S. dollars) stipulated
in the processor contract (without regard to discounts or incentives)
that will be used to determine your price election.
Harvest. Combining or threshing for seed. A crop that is swathed
prior to combining is not considered harvested.
Mustard. A crop of the family Cruciferae.
Planted acreage. In addition to the definition contained in the
Basic Provisions, mustard seed must be planted in rows. Acreage planted
in any other manner will not be insurable unless otherwise provided by
the Special Provisions, actuarial documents, or by written agreement.
Processor. Any business enterprise regularly engaged in buying and
processing mustard, that possesses all licenses and permits for
processing mustard required by the State in which it operates, and that
possesses facilities, or has contractual access to such facilities, with
enough equipment to accept and process contracted mustard within a
reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a
processor, containing at a minimum:
(a) The producer's commitment to plant and grow mustard of the types
specified in the Special Provisions and to deliver the production to the
processor;
(b) The processor's commitment to purchase all the production stated
in the processor contract; and
(c) A base contract price (U.S. dollars).
Salvage price. The cash price per pound (U.S. dollars) for mustard
qualifying for quality adjustment in accordance with section 13 of these
Crop Provisions.
Swathed. Severance of the stem and seed pods from the ground and
placing into windrows without removal of the seed from the pod.
Type. A category of mustard identified as a type in the Special
Provisions.
Windrow. Mustard that is swathed and placed in a row.
2. Unit Division
In addition to the requirements of section 34 of the Basic
Provisions, optional units may also be established by type, if types are
designated on the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3 of the Basic
Provisions, you may select only one base contract price percentage for
all the mustard in the county insured under this policy unless the
Special Provisions allow different base contract prices by type.
(b) If base contract prices are allowed by type, you can select one
base contract price for each type designated in the Special Provisions.
The base contract prices you choose must have the same percentage
relationship to the base contract price (maximum price) offered for each
type. For example, if you
[[Page 388]]
choose 100 percent of the maximum price for a specific type, you must
also choose 100 percent of the maximum price for all other types.
(c) If there are multiple base contract prices within the same unit,
each will be considered a separate price election that will be
multiplied by the number of insurable acres under applicable processor
contract. These amounts will be totaled to determine the premium,
liability, and indemnity for the unit.
(d) To determine the total production guarantee, apply the lesser of
the:
(1) Contracted acres multiplied by the production guarantee (per
acre);
(2) Planted acres multiplied by the production guarantee (per acre);
(3) Total production stated in the contract; or
(4) For acreage and production contracts only, the contracted acres
multiplied by the contracted production (per acre).
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is November 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are March 15.
6. Report of Acreage
In addition to the provisions in section 6 of the Basic Provisions,
you must provide a copy of all processor contracts to us on or before
the acreage reporting date.
7. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all mustard in the county for which a premium rate is
provided by the actuarial table:
(1) In which you have a share;
(2) That is planted for harvest as seed;
(3) That is grown under, and in accordance with, the requirements of
a processor contract executed on or before the acreage reporting date
and is not excluded from the processor contract at any time during the
crop year; and
(4) That is not, unless allowed by the Special Provisions or by
written agreement:
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume; or
(iii) Planted following the harvest of any other crop in the same
crop year.
(b) You will be considered to have a share in the insured crop if,
under the processor contract, you retain control of the acres on which
the mustard is grown, your income from the insured crop is dependent on
the amount of production delivered, and the processor contract provides
for delivery of the mustard under specified conditions and at a
stipulated base contract price.
(c) A commercial mustard producer who is also a processor may
establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or
officers of the processor must execute and adopt a resolution that
contains the same terms as an acceptable processor contract. Such
resolution will be considered a processor contract under this policy;
and
(3) Our inspection reveals that the processing facilities comply
with the definition of a processor contained in these Crop Provisions.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final
planting date, to the extent that a majority of producers in the area
would not normally further care for the crop, must be replanted unless
we agree that it is not practical to replant.
(b) We will not insure any acreage that does not meet the rotation
requirements, if applicable, contained in the Special Provisions.
(c) Insurable acreage will be:
(1) For acreage only based processor contracts and acreage and
production based processor contracts which specify a maximum number of
acres, the lesser of:
(i) The planted acres; or
(ii) The maximum number of acres specified in the contract;
(2) For production only based processor contracts, the lesser of:
(i) The number of acres determined by dividing the production stated
in the processor contract by the approved yield; or
(ii) The planted acres.
9. Insurance Period
In accordance with the provisions of section 11 of the Basic
Provisions, the end of the insurance period is October 31 of the
calendar year in which the crop is normally harvested unless otherwise
stated in the Special Provisions.
10. Causes of Loss
In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss which occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
[[Page 389]]
(c) Insects, but not damage due to insufficient or improper
application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; and
(h) Failure of the irrigation water supply, if applicable, caused by
a cause of loss specified in section 10(a) through (g) that occurs
during the insurance period.
11. Replanting Payment
(a) In accordance with section 13 of the Basic Provisions, a
replanting payment is allowed if the insured crop is damaged by an
insurable cause of loss to the extent that the remaining stand will not
produce at least 90 percent of the production guarantee for the acreage,
and it is practical to replant or we require you to replant in
accordance with section 8(a).
(b) The maximum amount of the replanting payment per acre will be
the lesser of 20 percent of the production guarantee (per acre) or 175
pounds, multiplied by the base contract price applicable to the acreage
to be replanted, multiplied by your insured share.
(c) When the mustard is replanted using a practice that is
uninsurable as an original planting, the liability for the unit will be
reduced by the amount of the replanting payment that is attributable to
your share. The premium amount will not be reduced.
12. Duties In The Event of Damage or Loss
In accordance with the requirements of section 14 of the Basic
Provisions, the representative samples of the unharvested crop that we
may require must be at least 10 feet wide and extend the entire length
of each field in the unit. The samples must not be harvested or
destroyed until the earlier of our inspection or 15 days after harvest
of the balance of the unit is completed.
13. Settlement of Claim
(a) We will determine your loss on a unit basis.
(1) In the event you are unable to provide separate acceptable
production records:
(i) For any optional units, we will combine all optional units for
which acceptable production records were not provided; or
(ii) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(2) For any processor contract that stipulates only the amount of
production to be delivered, and not withstanding the provisions of this
section or any unit division provisions contained in the Basic
Provisions, no indemnity will be paid for any loss of production on any
unit if the insured produced a crop sufficient to fulfill the processor
contract(s) forming the basis of the insurance guarantee
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insurable acreage of each type, if applicable,
determined in accordance with section 8(c), by its respective production
guarantee (per acre);
(2) Multiplying each result in section 13(b)(1) by the respective
base contract price for each type, if applicable;
(3) Totaling the results in section 13(b)(2);
(4) Multiplying the production to be counted for each type, if
applicable (see section 13(c), by its respective base contract price (If
you have multiple processor contracts with varying base contract prices
within the same unit, we will value your production to count by using
your highest base contract price first and will continue in decreasing
order to your lowest base contract price based on the amount of
production insured at each base contract price);
(5) Totaling the results in section 13(b)(4);
(6) Subtracting the total in section 13(b)(5) from the total in
section 13(b)(3); and
(7) Multiplying the result in section 13(b)(6) by your share.
Example 1 (with one base contract price for the unit):
You have 100 percent share in 20 acres of mustard in a unit with a
650-pound production guarantee (per acre) and a base contract price of
$0.15 per pound. Due to insurable causes, you are only able to harvest
10,000 pounds and there is no appraised production. Your indemnity would
be calculated as follows:
(1) 20 acres x 650 pounds = 13,000 pound production guarantee;
(2) 13,000 pounds x $0.15 base contract price = $1,950 value of
guarantee;
(3) $1,950 total value of guarantee;
(4) 10,000 pounds x $0.15 base contract price = $1,500 value of
production to count;
(5) $1,500 total value of production to count;
(6) $1,950-$1,500 = $450 loss; and
(7) $450 x 100 percent = $450 indemnity payment.
Example 2 (with two base contract prices for the same
unit):
You have 100 percent share in 20 acres of mustard in a unit with a
650-pound production guarantee (per acre), 10 acres with a base contract
price of $0.15 per pound, and 10 acres with a base contract price of
$0.10 per pound. Due to insurable causes, you are only able to harvest
8,500 pounds and there is no appraised production. Your indemnity would
be calculated as follows:
(1) 10 acres x 650 pounds = 6,500-pound production guarantee x $0.15
base contract price = $975 value guarantee;
[[Page 390]]
(2) 10 acres x 650 pounds = 6,500-pound production guarantee x $0.10
base contract price = $650 value guarantee;
(3) $975 + $650 = $1,625 total value guarantee;
(4) 6,500 pounds of production to count x $0.15 base contract price
(higher base contract price) = $975 value of production to count;
(5) 2,000 pounds of production to count x $0.10 base contract price
(lower base contract price) = $200 value of production to count;
(6) $975 + $200 = $1,175 total value of production to count;
(7) $1,625 total value guarantee--$1,175 total value of production
to count = $450 loss; and
(8) $450 x 100 percent = $450 indemnity payment.
(c) The total production to count (in pounds) from all insurable
acreage in the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee (per acre) for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be
adjusted for quality deficiencies and excess moisture in accordance with
section 13(d)); and
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or you fail to provide sufficient
care for the samples, our appraisal made prior to giving you consent to
put the acreage to another use will be used to determine the amount of
production to count.); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested;
(2) All harvested production from the insurable acreage; and
(3) Any other uninsurable mustard production that is delivered to
fulfill the processor contract.
(d) Mature mustard may be adjusted for excess moisture and quality
deficiencies. If moisture adjustment is applicable, it will be made
prior to any adjustment for quality.
(1) Mustard production will be reduced by 0.12 percent for each 0.1
percentage point of moisture in excess of 10.0 percent. We may obtain
samples of the production to determine the moisture content.
(2) Mustard production will be eligible for quality adjustment only
if:
(i) Deficiencies in quality result in the mustard not meeting the
requirements for acceptance under the processor contract because of
damaged seeds (excluding heat damage), or a musty, sour, or commercially
objectionable foreign odor; or
(ii) Substances or conditions are present that are identified by the
Food and Drug Administration or other public health organizations of the
United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss in mustard
production only if:
(i) The deficiencies, substances, or conditions specified in section
13(d)(2) resulted from a cause of loss specified in section 10 that
occurs within the insurance period; and
(ii) The deficiencies, substances, or conditions specified in
section 13(d)(2) result in a salvage price less than the base contract
price; and
(iii) All determinations of these deficiencies, substances, or
conditions specified in section 13(d)(2) are made using samples of the
production obtained by us, by the processor identified in the processor
contract for the insured acreage, or by a disinterested third party
approved by us; and
(iv) The samples are analyzed by a grader in accordance with the
Directive for Inspection of Mustard Seed, provided by the Federal Grain
Inspection Service or such other directive or standards that may be
issued by FCIC.
(4) Mustard production that is eligible for quality adjustment, as
specified in sections 13(d)(2) and (3), will be reduced by multiplying
the quality adjustment factors contained in the Special Provisions (if
quality adjustment factors are not contained in the Special Provisions,
the quality adjustment factor is determined by dividing the salvage
price by the base contract price (not to exceed 1.000)) by the number of
pounds remaining after any reduction due to excessive moisture (the
moisture-adjusted gross pounds) of the damaged or conditioned
production.
[[Page 391]]
(i) The salvage price will be determined at the earlier of the date
such quality adjusted production is sold or the date of final inspection
for the unit subject to the following conditions:
(A) Discounts used to establish the salvage price will be limited to
those that are usual, customary, and reasonable.
(B) The salvage price will not include any reductions for:
(1) Moisture content;
(2) Damage due to uninsured causes;
(3) Drying, handling, processing, or any other costs associated with
normal harvesting, handling, and marketing of the mustard; except, if
the salvage price can be increased by conditioning, we may reduce the
salvage price, after the production has been conditioned, by the cost of
conditioning but not lower than the salvage price before conditioning;
and
(ii) We may obtain salvage prices from any buyer of our choice. If
we obtain salvage prices from one or more buyers located outside your
local market area, we will reduce such price by the additional costs
required to deliver the mustard to those buyers.
(iii) Factors not associated with grading under the Directive for
Inspection of Mustard Seed, provided by the Federal Grain Inspection
Service or such other directive or standards that may be issued by FCIC
including, but not limited to, protein and oil will not be considered.
(e) Any production harvested from plants growing in the insured crop
may be counted as production of the insured crop on an unadjusted weight
basis.
14. Late Planting
In lieu of section 16(a) of the Basic Provisions, the production
guarantee (per acre) for each acre planted to the insured crop during
the late planting period will be reduced by 1 percent per day for each
day planted after the final planting date, unless otherwise specified in
the Special Provisions.
15. Prevented Planting
In addition to the provisions contained in section 17 of the Basic
Provisions, your prevented planting coverage will be 60 percent of your
production guarantee (per acre) for timely planted acreage. When a
portion of the insurable acreage within the unit is prevented from being
planted, and there is more than one base contract price applicable to
acreage in the unit, the lowest base contract price will be used in
calculating any prevented planting payment. If you have limited or
additional levels of coverage, as specified in 7 CFR part 400, subpart
T, and pay an additional premium, you may increase your prevented
planting coverage to the levels specified in the actuarial documents.
[73 FR 11320, Mar. 3, 2008; 73 FR 17243, Apr. 1, 2008]
Sec. 457.169 Mint crop insurance provisions.
The Mint Crop Insurance Provisions for the 2008 and succeeding crop
years are as follows:
FCIC policies:
United States Department of Agriculture
Federal Crop Insurance Corporation
Reinsured policies:
(Appropriate title for insurance provider)
Both FCIC and reinsured policies:
Mint Crop Insurance Provisions
1. Definitions
Adequate Stand. A population of live mint plants that equals or
exceeds the minimum required number of plants or percentage of ground
cover, as specified in the Special Provisions.
Appraisal. A method of determining potential production by
harvesting and distilling a representative sample of the mint crop.
Cover crop. A small grain crop seeded into mint acreage to reduce
soil erosion and wind damage.
Cutting. Severance of the upper part of the mint plant from its
stalk and roots.
Distillation. A process of extracting mint oil from harvested mint
plants by heating and condensing.
Existing mint. Mint planted for harvest during a previous crop year.
Ground cover. Mint plants, including mint foliage and stolons, grown
on insured acreage.
Harvest. Removal of mint from the windrow.
Mint. A perennial spearmint or peppermint plant of the family
Labiatae and the genus Mentha grown for distillation of mint oil.
Mint oil. Oil produced by the distillation of harvested mint plants.
New mint. Mint planted for harvest for the first time.
Planted acreage. In addition to the definition in the Basic
Provisions, land in which mint stolons have been placed in a manner
appropriate for the planting method and at the correct depth into a
seedbed that has been properly prepared.
Pound. 16 ounces avoirdupois.
Sales closing date. In lieu of the definition contained in the Basic
Provisions, if you select the Winter Coverage Option, application for
the Winter Coverage Option will include application for the spring
insurance period
[[Page 392]]
and must be submitted by the sales closing date for the Winter Coverage
Option contained in the Special Provisions. Coverage may not be changed
between the end of the Winter Coverage Option insurance period and the
beginning of the spring insurance period. If you do not elect the Winter
Coverage Option, application must be made by the spring sales closing
date contained in the Special Provisions and all policy changes must be
made by that date. If you later elect the Winter Coverage Option, you
may select your coverage under the Winter Coverage Option.
Stolon. A stem at or just below the surface of the ground that
produces new mint plants at its tips or nodes.
Type. A category of mint identified as a type in the Special
Provisions.
Windrow. Mint that is cut and placed in a row.
2. Unit Division
A basic unit, as defined in section 1 of the Basic Provisions, will
be divided into additional basic units by each mint type designated in
the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
(a) In addition to the requirements of section 3 of the Basic
Provisions, you may only select one price election for all the mint in
the county insured under this policy unless the actuarial documents
provide different price elections by type, in which case you may only
select one price election for each type designated in the actuarial
documents. The price elections you choose for each type must have the
same percentage relationship to the maximum price election offered by us
for each type. For example, if you choose 100 percent of the maximum
price election for one specific type, you must also choose 100 percent
of the maximum price election for other types.
(b) In addition to the provisions in section 3 of the Basic
Provisions, you must report:
(1) The total amount of mint oil produced from insurable acreage for
all cuttings for each unit;
(2) Any damage to or removal of mint plants or stolons; any change
in practices; or any other circumstance that may reduce the expected
yield below the yield upon which the production guarantee is based, and
the number of affected acres;
(3) The stand age;
(4) The date existing mint acreage was planted;
(5) The date new mint acreage was initially planted; and
(6) The type of mint.
(c) If you fail to notify us of any circumstance that may reduce
your yields or insurable acres from previous levels, we will reduce your
production guarantee and insurable acres at any time we become aware of
the circumstance based on our estimate of the effect of damage to or
removal of mint plants or stolons; stand age; change in practices; and
any other circumstance that may affect the yield potential or insurable
acres of the insured crop.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is June 30 preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation date is September 30 and the termination date is November
30. If your policy is terminated after insurance has attached for the
subsequent crop year, coverage will be deemed not to have attached to
the acreage for the subsequent crop year.
6. Insured Crop
(a) In accordance with the provisions of section 8 of the Basic
Provisions, the crop insured will be all mint types in the county for
which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvest and distillation for mint oil;
(3) That have an adequate stand by the date coverage begins; and
(4) That have been:
(i) Inspected and accepted by us for the first crop year you are
insured; or
(ii) Certified by you as having an adequate stand on the date
coverage begins after the first crop year you are insured unless an
inspection is required under section 8(b).
(b) In lieu of the provisions of section 8 of the Basic Provisions
that prohibit insurance of a second crop harvested following the same
crop in the same crop year, multiple harvests of mint on the same
acreage will be considered as one mint crop.
(c) In addition to the coverages provided in these Crop Provisions,
you may also elect the Winter Coverage Option in accordance with section
13.
7. Insurable Acreage
(a) Mint interplanted with a cover crop will not be considered
interplanted for the purposes of section 9 of the Basic Provisions if
the cover crop is destroyed prior to its maturity and is not harvested
as grain.
(b) In addition to the provisions of section 9 of the Basic
Provisions, unless allowed by written agreement, we will not insure any
acreage that:
(1) Does not meet rotation requirements contained in the Special
Provisions; or
[[Page 393]]
(2) Exceeds existing mint age limitations contained in the Special
Provisions.
8. Insurance Period
In lieu of the provisions of section 11 of the Basic Provisions:
(a) Coverage begins on each unit or part of a unit for acreage with
an adequate stand on the following calendar dates:
(1) June 16 in Indiana, Montana, and Wisconsin;
(2) May 16 in Washington; and
(3) For all other states, the date as provided in the Special
Provisions.
(b) For the year of application, for when you have reported planting
mint during the Winter Coverage Option insurance period, or for any
insurance period following the payment of an indemnity or a reported
loss where the crop was determined to not have an adequate stand, we
will inspect all mint acreage within the two-week period before coverage
begins (If you have elected the Winter Coverage Option, such inspection
will occur not later than November 15).
(1) Insurance will attach on the date coverage begins, as specified
in section 8(a), unless we inspect the acreage during the two-week
period and determine it does not meet insurability requirements as
specified in section 2 of the Basic Provisions, the application, or
these Crop Provisions.
(2) You must provide any information we require for the crop or to
determine the condition of the crop.
(c) Coverage ends for each unit or part of a unit at the earliest
of:
(1) Total destruction of the insured crop on the unit;
(2) Final adjustment of a loss;
(3) The final cutting for the crop year;
(4) Abandonment of the crop; or
(5) The following calendar date:
(i) September 30 in Indiana and Wisconsin;
(ii) October 15 in Montana;
(iii) October 31 in Washington; and
(iv) For all other states, the date as provided in the Special
Provisions.
9. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects or plant disease (except Verticillium Wilt disease), but
not damage due to insufficient or improper application of control
measures;
(4) Wildlife;
(5) Earthquake;
(6) Volcanic eruption; or
(7) Failure of the irrigation water supply, if caused by an insured
cause of loss listed in sections 9(a)(1) through (6) that occurs during
the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against any loss of production
that:
(1) Occurs after harvest;
(2) Is due to your failure to distill the crop, unless such failure
is due to actual physical damage to the crop caused by an insured cause
of loss that occurs during the insurance period; or
(3) Is due to Verticillium Wilt disease.
10. Duties In The Event of Damage or Loss
In addition to your duties contained in section 14 of the Basic
Provisions, if you discover that any insured mint is damaged, or if you
intend to claim an indemnity on any unit:
(a) You must give us notice of probable loss at least 15 days before
the beginning of any cutting or immediately if probable loss is
discovered after cutting has begun or when cutting should have begun;
and
(b) You must timely harvest and completely distill a sample of the
crop on any acreage you do not intend to harvest, as designated by us,
to determine if an indemnity is due.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for
which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(b) We may defer appraisals until the crop reaches maturity or the
date mint harvest is general in the area.
(c) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by
its respective production guarantee;
(2) Multiplying the result of section 11(c)(1) by the respective
price election for each type, if applicable;
(3) Totaling the results of section 11(c)(2);
(4) Multiplying the total production to be counted (see section
11(d)) of each type, if applicable, by its respective price election;
(5) Totaling the results of section 11(c)(4);
(6) Subtracting the result in section 11(c)(5) from the result of
section 11(c)(3); and
(7) Multiplying the result in section 11(c)(6) by your share.
For example:
Assume that you have a 100 percent share in 100 acres of peppermint
in the unit, with a production guarantee of 50 pounds of oil
[[Page 394]]
per acre and a price election of $12 per pound. Because an insured cause
of loss has reduced production, you only harvest and distill 2,500
pounds of peppermint oil. Your indemnity would be calculated as follows:
(1) 100 acres x 50 pounds = 5,000 pound production guarantee;
(2) 5,000 pound production guarantee x $12 price election = $60,000
value of production guarantee;
(3) 2,500 pounds production to count x $12 price election = $30,000
value of production to count;
(4) $60,000 - $30,000 = $30,000 loss; and
(5) $30,000 x 100 percent share = $30,000 indemnity payment.
(d) The total production to count (in pounds of oil) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) For which you fail to meet the requirements contained in section
10 of these Crop Provisions;
(D) That is damaged solely by uninsured causes; or
(E) For which you fail to provide production records that are
acceptable to us;
(ii) All production lost due to uninsured causes;
(iii) All unharvested production;
(iv) All potential production on insured acreage that you intend to
put to another use or abandon with our consent:
(A) If you do not elect to continue to care for the crop, we may
give you our consent to put the acreage to another use if you agree to
leave intact and provide sufficient care for representative samples of
the crop in locations acceptable to us (The amount of production to
count for such acreage will be based on the harvested production or
appraisals from the samples at the time harvest should have occurred. If
you do not leave the required samples intact, or fail to provide
sufficient care for the samples, the amount of production to count will
be not less than the production guarantee per acre); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
the appraised production at the time the crop reaches maturity.
(2) All harvested production from the insurable acreage.
(e) Harvested production must be distilled to determine production
to count.
(f) Any oil distilled from plants growing in the mint will be
counted as mint oil on a weight basis.
(g) You are responsible for the cost of distilling samples for loss
adjustment purposes.
12. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
13. Winter Coverage Option
(a) The provisions of this option are continuous and will be
attached to and made part of your insurance policy if:
(1) You elect the Winter Coverage Option on your application, or on
a form approved by us, on or before the fall sales closing date for the
crop year in which you wish to insure mint under this option, and pay
the additional premium indicated in the actuarial documents for this
optional coverage; and
(2) You have not elected coverage under the Catastrophic Risk
Protection Endorsement.
(b) This option provides a production guarantee equal to 60 percent
of the production guarantee determined under section 3 of these Crop
Provisions.
(c) If you elect this option, all of the insurable acreage in the
county will be insured by this option.
(d) In addition to the requirements of section 6 of the Basic
Provisions, any acreage of new mint planted after the applicable acreage
reporting date must be certified by you and reported to us within two
weeks of planting.
(e) In lieu of section 6(a) of these Crop Provisions, the crop
insured will be all mint types in the county for which a premium rate is
provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvest and distillation as mint oil;
(3) That have an adequate stand on the date coverage begins (newly
planted mint types must be reported in accordance with section 8(b) but
they must be reported as uninsured unless they have an adequate stand by
the date coverage begins); and
(4) That has been:
(i) Inspected and accepted by us for the first crop year you are
insured (We will inspect all mint acreage and will notify you of the
acceptance or rejection of your application not later than November 15.
If we fail to notify you by that date, your application will be accepted
unless other grounds exist to reject the application, as specified in
the Basic Provisions, the application, or these Crop Provisions);
(ii) Inspected and accepted by us not later than November 15 for the
crop year following the payment of an indemnity or a reported loss
unless the crop was determined to have an adequate stand (If we
determined there was an adequate stand after the loss was reported, no
inspection is necessary); or
(iii) Certified by you as having an adequate stand on the date
coverage begins unless an inspection is required under section
13(e)(4)(ii).
[[Page 395]]
(f) Coverage under this option begins:
(1) On existing mint acreage with an adequate stand at 12:01 a.m. on
the calendar date listed below:
(i) October 1 in Indiana and Wisconsin;
(ii) October 16 in Montana;
(iii) November 1 in Washington; and
(iv) For all other states, the date as provided in the Special
Provisions.
(2) On new mint acreage, that has an adequate stand by the date
coverage begins as specified in section 13(f)(1).
(g) Coverage under this option ends on the unit or part of the unit
at 11:59 p.m. on the calendar date listed below:
(1) June 15 in Indiana, Montana, and Wisconsin;
(2) May 15 in Washington; and
(3) For all other states, the date as provided in the Special
Provisions.
(h) In lieu of section 10(a) of these Crop Provisions, you must give
notice of probable loss within 72 hours after you discover any insured
mint is damaged and does not have an adequate stand, but no later than
the date coverage ends for this option.
(i) In addition to the requirements of section 10 of these Crop
Provisions, you must give us notice if you want our consent to put any
mint acreage to another use before a determination can be made if there
is an adequate stand on the acreage. We will inspect the acreage and you
must agree in writing no payment or indemnity will be made for the
acreage put to another use. The total production to be counted for
acreage put to another use with our consent in accordance with this
section will not be less than the approved yield.
(j) In addition to section 11(a) of these Crop Provisions we will
make a Winter Coverage Option payment only on acreage that had an
adequate stand on the date that insurance attached if the adequate stand
was lost due to an insured cause of loss occurring within the Winter
Coverage Option insurance period and the acreage consists of at least 20
acres or 20 percent of the insurable planted acres in the unit.
(k) In lieu of section 11(b) of these Crop Provisions, we may defer
appraisals until the date coverage ends under this option.
(l) In lieu of section 11(c) of these Crop Provisions, in the event
of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying 60 percent by your production guarantee per acre;
(2) Multiplying the result in section 13(l)(1) by the number of
acres that do not have an adequate stand;
(3) Multiplying the result in section 13(l)(2) by the price
election; and
(4) Multiplying the result in section 13(l)(3) by your share.
For example:
Assume that you have a 100 percent share in 100 acres of mint with a
production guarantee of 50 pounds of oil per acre and a price election
of $12 per pound. Also assume that you do not have an adequate stand on
50 acres by the date coverage ends for this option because an insured
cause has damaged the stand. Your Winter Coverage Option payment would
be calculated as follows:
(1) 60 percent x 50 pound production guarantee = 30 pound production
guarantee per acre;
(2) 30 pound production guarantee per acre x 50 acres without an
adequate stand = 1,500 pounds;
(3) 1,500 pounds x $12 price election = $18,000; and
(4) $18,000 x 100 percent share = $18,000 Winter Coverage Option
payment.
(m) In lieu of section 11(d) of these Crop Provisions, the
population of live mint plants to be counted from insurable acreage on
the unit will be not less than the population of live mint plants in an
adequate stand for acreage:
(1) That is abandoned;
(2) That is put to another use without our consent;
(3) For which you fail to meet the requirements contained in section
13(h); or
(4) That is damaged solely by uninsured causes.
(n) Acreage for which a Winter Coverage Option payment has been made
is no longer insurable under the Crop Provisions for the current crop
year. Any mint production subsequently harvested from uninsured acreage
for the crop year and not kept separate from production from insured
acreage will be considered production to count.
(o) Acreage for which a Winter Coverage Option payment has been made
will receive an amount of production of zero when computing subsequent
year's approved yield.
(p) Sections 11(e), (f), and (g) of these Crop Provisions do not
apply to this option.
[72 FR 24527, May 3, 2007, as amended at 72 FR 29055, May 24, 2007]
Sec. 457.170 Cultivated wild rice crop insurance provisions.
The Cultivated Wild Rice Crop Insurance Provisions for the 2009 and
succeeding crop years are as follows:
FCIC policies: United States Department of Agriculture, Federal Crop
Insurance Corporation.
Reinsured policies: (Appropriate title for insurance provider).
Both FCIC and reinsured policies: Cultivated Wild Rice Crop
Provisions.
[[Page 396]]
1. Definitions
Approved laboratory. A testing facility approved by us to determine
the recovery percentage from samples of cultivated wild rice.
Cultivated Wild Rice. A member of the grass family Zizania Palustris
L., adapted for growing in man-made flood irrigated fields known as
paddies.
Finished weight.
(a) The green weight delivered to a processor multiplied by the
determined recovery percentage;
(b) The green weight stored for seed multiplied by either the
determined recovery percentage or the standard recovery percentage in
accordance with section 11(d); or
(c) The appraised green weight multiplied by either the determined
recovery percentage or the standard recovery percentage in accordance
with section 11(d).
Flood irrigation. Intentionally covering the planted acreage with
water and maintaining it at a proper depth throughout the growing
season.
Green weight. The total weight in pounds of the green cultivated
wild rice production that was appraised, delivered to a processor, or
stored for seed.
Harvest. Combining or threshing the cultivated wild rice for grain
or seed.
Initially planted. The first occurrence of planting the insured crop
on insurable acreage for the crop year.
Planted acreage. In addition to the definition contained in the
Basic Provisions, land on which an adequate amount of seed is initially
spread onto the soil surface by any appropriate method (including
shattering for the second and succeeding years) and subsequently is
mechanically incorporated into the soil at the proper depth, will be
considered planted, unless otherwise provided by the Special Provisions
or actuarial documents.
Processor. A business that converts green weight to a product ready
for commercial sale using appropriate equipment and methods such as
separating immature kernels, fermenting or curing, parching, de-hulling,
and scarifying.
Recovery percentage. The ratio of finished weight to green weight of
the cultivated wild rice. As specified in section 11(d), the recovery
percentage is either:
(a) The determined recovery percentage for a sample as determined by
an approved laboratory; or
(b) The standard recovery percentage provided in the Special
Provisions.
Shatter. The act of mature seeds naturally falling to the ground
from a cultivated wild rice plant.
2. Unit Division
Provisions in the Basic Provisions that allow optional units by
irrigated and non-irrigated practices are not applicable.
3. Insurance Guarantee, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one percentage of the maximum price election
for all the cultivated wild rice insured under this policy in the
county.
(b) The insurance guarantee per acre is expressed as pounds of
finished weight.
4. Contract Changes
In accordance with section 4 of the Basic Provisions, the contract
change date is:
(a) November 30 preceding the cancellation date for counties with a
February 28 cancellation date; and
(b) June 30 preceding the cancellation date for counties with a
September 30 cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
------------------------------------------------------------------------
State Cancellation date Termination date
------------------------------------------------------------------------
Mendocino, Glenn, Butte, and February 28......... February 28.
Sierra Counties,
California; and all
California Counties south
thereof.
Minnesota; All Other September 30........ November 30.
California Counties; and
All Other States.
------------------------------------------------------------------------
6. Insured Crop
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the cultivated wild rice in the county grown on
insurable acreage for which premium rates are provided by the actuarial
documents:
(1) In which you have a share;
(2) That is planted for harvest as grain; and
(3) That is grown in man-made flood irrigated fields.
(b) Section 8(b)(3) of the Basic Provisions is not applicable to the
cultivated wild rice seed that naturally shatters and is subsequently
mechanically incorporated into the soil.
[[Page 397]]
7. Insurance Period
In accordance with section 11 of the Basic Provisions, the calendar
date for the end of the insurance period is:
(a) For Minnesota, September 30 of the calendar year the crop is
normally harvested;
(b) For California, October 15 of the calendar year the crop is
normally harvested; and
(c) For all other states, the date provided in the Special
Provisions.
8. Causes of Loss
(a) In accordance with section 12 of the Basic Provisions, insurance
is provided only against the following causes of loss that occur during
the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper
application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper
application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by a cause of
loss specified in sections 8(a)(1) through (7) that occurs during the
insurance period, drought, or the intrusion of saline water.
(b) In addition to the causes not insured against in section 12 of
the Basic Provisions, we will not insure against any loss of production
due to:
(1) The crop not being timely harvested unless such delay in
harvesting is solely and directly due to adverse weather conditions
which preclude harvesting equipment from entering and moving about the
field; or
(2) The application of saline water, except as specified in section
8(a) of these crop provisions.
9. Replanting Payments
The provisions of section 13 of the Basic Provisions are not
applicable.
10. Duties in the Event of Damage or Loss
Representative samples are required in accordance with section 14 of
the Basic Provisions.
11. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event you
are unable to provide records of production that are acceptable to us
for any:
(1) Optional unit, we will combine all optional units for which such
production records were not provided; or
(2) Basic unit, we will allocate any commingled production to such
units in proportion to our liability on the harvested acreage for each
unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage by its respective production
guarantee;
(2) Multiplying the result in section 11(b)(1) by the respective
price election;
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to be counted, (see section
11(c) through (d)) by the respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the result of section 11(b)(5) from the result of
section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of cultivated wild rice in
the unit, with a guarantee of 400 pounds per acre and a price election
of $1.00 per pound. You are only able to harvest 20,000 pounds. Your
indemnity would be calculated as follows:
(1) 100 acres x 400 pounds = 40,000 pound guarantee;
(2) 40,000 pounds x $1.00 per pound price election = $40,000 value
of guarantee;
(3) 20,000 pounds x $1.00 per pound price election = $20,000 value
of production to count;
(4) $40,000 - $20,000 = $20,000 loss; and
(5) $20,000 x 100 percent share = $20,000 indemnity payment.
(c) The total production to count (finished weight) from all
insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide records of production that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested green weight
production must be adjusted in accordance with section 11(d)); and
(iv) Potential production on insured acreage that you intend to put
to another use or abandon, if you and we agree on the appraised amount
of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for,
[[Page 398]]
representative samples of the crop in locations acceptable to us (The
amount of production to count for such acreage will be based on the
harvested production or appraisals from the samples at the time harvest
should have occurred. If you do not leave the required samples intact,
or fail to provide sufficient care for the samples, our appraisal made
prior to giving you consent to put the acreage to another use will be
used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature green weight will be multiplied by the recovery
percentage subject to the following:
(1) We may obtain samples of the production to determine the
recovery percentage.
(2) The determined recovery percentage will be used to calculate
your loss only if:
(i) All determined recovery percentages are established using
samples of green weight production obtained by us or by the processor
for sold or processed production; and
(ii) The samples are analyzed by an approved laboratory.
(3) If the conditions of section 11(d)(2) are not met, the standard
recovery percentage will be used.
12. Late Planting
The provisions of section 16 of the Basic Provisions are not
applicable.
13. Prevented Planting
The provisions of section 17 of the Basic Provisions are not
applicable.
[73 FR 11316, Mar. 3, 2008]
Sec. 457.171 Cabbage crop insurance provisions.
The Cabbage Crop Insurance Provisions for the 2011 and succeeding
crop years are as follows:
FCIC policies: United States Department of Agriculture, Federal Crop
Insurance Corporation.
Reinsured policies: (Appropriate title for insurance provider).
Both FCIC and reinsured policies: Cabbage Crop Insurance Provisions.
1. Definitions
Cabbage. Plants of the family Brassicaceae and the genus Brassica,
grown for their compact heads and used for human consumption.
Crop Year. In lieu of the definition contained in section 1 of the
Basic Provisions, a period of time that begins on the first day of the
earliest planting period and continues through the last day of the
insurance period for the latest planting period. The crop year is
designated by the calendar year in which the cabbage planted in the
latest planting period is normally harvested.
Damaged cabbage production. Fresh market cabbage that fails to grade
U.S. Commercial or better in accordance with the United States Standards
for Grades of Cabbage, or processing cabbage that fails to grade U.S.
No. 2 or better in accordance with the United States Standards for
Grades of Cabbage for Processing due to an insurable cause of loss.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper, or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the field for the
purpose of picking all or a portion of the crop.
Harvest. Cutting of the cabbage plant to sever the head from the
stalk.
Hundredweight. One hundred pounds avoirdupois.
Inspected transplants. Cabbage plants that have been found to meet
the standards of the public agency responsible for the inspection
process within the State in which they are grown.
Marketable cabbage. Cabbage that is sold or grades at least:
(a) U.S. Commercial for fresh market cabbage; or
(b) U.S. No. 2 for processing cabbage.
Planted acreage. In addition to the definition contained in section
1 of the Basic Provisions, cabbage plants and seeds must initially be
planted in rows wide enough to permit mechanical cultivation. Cabbage
planted or seeds planted in any other manner will not be insurable
unless otherwise provided by the Special Provisions, actuarial
documents, or by written agreement.
Processor. Any business enterprise regularly engaged in processing
cabbage for human consumption, that possesses all licenses and permits
for processing cabbage required by the State in which it operates, and
that possesses facilities, or has contractual access to such facilities,
with enough equipment to accept and process the contracted cabbage
within a reasonable amount of time after harvest.
Processor contract. A written contract between the producer and the
processor, containing at a minimum:
(a) The producer's commitment to plant and grow cabbage, and to sell
and deliver the cabbage production to the processor;
(b) The processor's commitment to purchase all the production stated
in the processor contract; and
[[Page 399]]
(c) A price per hundredweight that will be paid for the production.
Timely planted. In lieu of the definition contained in section 1 of
the Basic Provisions, cabbage planted during a planting period
designated in the Special Provisions.
Type. A category of cabbage as designated in the Special Provisions.
2. Unit Division
(a) A basic unit, as defined in section 1 of the Basic Provisions,
will also be divided into additional basic units by planting period if
separate planting periods are designated in the Special Provisions.
(b) In addition to the requirements of section 34 of the Basic
Provisions, optional units may also be established by type if separate
types are designated in the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one price election for all the cabbage in
the county insured under this policy unless the Special Provisions
provide different price elections by type, in which case you may select
one price election for each cabbage type designated in the Special
Provisions.
(b) The price elections you choose for each type must bear the same
percentage relationship to the maximum price election offered by us for
each type. For example, if you selected 100 percent of the maximum price
election for one type, you must also select 100 percent of the maximum
price election for all other types.
4. Contract Changes
In accordance with the provisions of section 4 of the Basic
Provisions, the contract change dates are the following calendar dates
preceding the cancellation dates:
(a) April 30 in Florida; Brooks, Colquitt, Tift, and Toombs
Counties, Georgia; and Texas;
(b) November 30 in Alaska; Rabun County, Georgia; Illinois;
Michigan; New York; North Carolina; Ohio; Oregon; Pennsylvania;
Virginia; Washington; and Wisconsin; or
(c) As designated in the Special Provisions for all other states and
counties.
5. Cancellation and Termination Dates
In accordance with the provisions of section 2 of the Basic
Provisions, the cancellation and termination dates are:
------------------------------------------------------------------------
State and counties Cancellation and termination dates
------------------------------------------------------------------------
Brooks, Colquitt, Tift, and Toombs July 1.
Counties, Georgia; Texas.
Florida............................. August 15.
Oregon, Washington.................. February 1.
Rabun County, Georgia; North February 28.
Carolina.
Alaska, Illinois, Michigan, New March 15.
York, Ohio, Pennsylvania, Virginia,
and Wisconsin.
All other states and counties....... As designated in the Special
Provisions.
------------------------------------------------------------------------
6. Report of Acreage
In addition to the provisions of section 6 of the Basic Provisions,
to insure your processing cabbage, you must provide a copy of all your
processor contracts to us on or before the acreage reporting date.
7. Insured Crop
(a) In accordance with the provisions of section 8 of the Basic
Provisions, the crop insured will be all the cabbage types in the county
for which a premium rate is provided by the actuarial documents, in
which you have a share, and that are:
(1) Planted with inspected transplants, if such transplants are
required by the Special Provisions;
(2) If direct seeded, planted with hybrid seed unless otherwise
permitted by the Special Provisions;
(3) Planted within the planting periods as designated in the Special
Provisions;
(4) Planted to be:
(i) Harvested and sold as fresh cabbage; or
(ii) Grown and sold as processing cabbage in accordance with the
requirements of a processor contract executed on or before the acreage
reporting date and not excluded from the processor contract at any time
during the crop year; and
(5) Unless allowed by the Special Provisions:
(i) Not interplanted with another crop; and
(ii) Not sold by direct marketing.
(b) Under the processor contract, you will be considered to have a
share in the insured crop to the extent you retain control of the
acreage on which the cabbage is grown, your income from the insured crop
is dependent on the amount of production delivered, and the processor
contract provides for delivery of the cabbage under specified conditions
and at a stipulated price.
(c) A processing cabbage producer who is also a processor may
establish an insurable interest if the following additional requirements
are met:
[[Page 400]]
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or
officers of the processor must execute and adopt a resolution that
contains the same terms as an acceptable processor contract. Such
resolution will be considered a processor contract under this policy;
and
(3) Our inspection reveals that the processing facilities comply
with the definition of ``processor'' contained in these Crop Provisions.
8. Insurable Acreage
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage that does not meet the rotation
requirements contained in the Special Provisions.
(b) Any acreage of the insured crop damaged before the end of the
planting period, to the extent that a majority of producers in the area
would normally not further care for the crop, must be replanted unless
we agree that it is not practical to replant.
(c) For processing cabbage, insurable acreage will be:
(1) For acreage only based processor contracts, and acreage and
production based processor contracts which specify a maximum number of
acres, the lesser of:
(i) The planted acres; or
(ii) The maximum number of acres specified in the contract;
(2) For production only based processor contracts, the lesser of:
(i) The number of acres determined by dividing the production stated
in the processor contract by the approved yield; or
(ii) The planted acres.
9. Insurance Period
(a) In lieu of the provisions of section 11 of the Basic Provisions,
coverage begins on each unit or part of a unit the later of:
(1) The date we accept your application; or
(2) When the cabbage is planted in each planting period.
(b) In addition to the provisions of section 11 of the Basic
Provisions, the end of the insurance period will be the earlier of:
(1) The date the crop should have been harvested; or
(2) The following applicable calendar date after planting;
(i) Alaska: October 1;
(ii) Florida:
(A) February 15 for the fall planting period;
(B) April 15 for the winter planting period; and
(C) May 31 for the spring planting period;
(iii) Brooks, Colquitt, Tift, and Toombs Counties, Georgia:
(A) January 15 for the fall planting period; and
(B) June 15 for the spring planting period;
(iv) Rabun County, Georgia:
(A) September 15 for the spring planting period; and
(B) October 31 for the summer planting period;
(v) Illinois, Michigan, New York, Ohio, and Pennsylvania:
(A) September 30 for the spring planting period; and
(B) November 25 for the summer planting period;
(vi) North Carolina:
(A) July 10 for the spring planting period; and
(B) December 31 for the fall planting period;
(vii) Oregon: December 31;
(viii) Texas:
(A) December 31 for the summer planting period;
(B) February 15 for the fall planting period; and
(C) April 30 for the winter planting period;
(ix) Virginia:
(A) July 31 for the early spring planting period;
(B) September 15 for the spring planting period; and
(C) November 15 for the summer planting period;
(x) Washington: December 31;
(xi) Wisconsin: November 5; and
(xii) All other states and counties as provided in the Special
Provisions.
10. Causes of Loss
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Wildlife;
(4) Insects or plant disease, but not damage due to insufficient or
improper application of control measures;
(5) Earthquake;
(6) Volcanic eruption; or
(7) Failure of the irrigation water supply, if caused by a cause of
loss specified in sections 10(a)(1) through (6) that occurs during the
insurance period.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to:
(1) Failure to market the cabbage for any reason other than actual
physical damage from an insured cause of loss that occurs during the
insurance period (For example, we will not pay you an indemnity if you
are unable to market due to quarantine, boycott, or refusal of any
person to accept production, etc.); or
[[Page 401]]
(2) Damage that occurs or becomes evident after the end of the
insurance period, including, but not limited to, damage that occurs or
becomes evident after the cabbage has been placed in storage.
11. Replanting Payments
(a) In accordance with the provisions of section 13 of the Basic
Provisions, a replanting payment is allowed if the crop is damaged by an
insurable cause of loss to the extent that the remaining stand will not
produce at least 90 percent of the production guarantee for the acreage
and it is practical to replant.
(b) No replanting payment will be made on acreage planted prior to
the initial planting date or after the end of the final planting period
as designated by the Special Provisions.
(c) In accordance with the provisions of section 13(c) of the Basic
Provisions, the maximum amount of the replanting payment per acre is the
number of hundredweight specified in the Special Provisions multiplied
by your price election, multiplied by your insured share. The fresh
market cabbage price election will be used to determine processing
cabbage replanting payments in counties where both fresh market and
processing cabbage are insurable.
(d) When the insured crop is replanted using a practice that is
uninsurable as an original planting, the liability for the unit will be
reduced by the amount of the replanting payment attributable to your
share. The premium will not be reduced.
(e) In lieu of the provisions contained in section 13 of the Basic
Provisions that limit a replanting payment to one each crop year, only
one replanting payment will be made for acreage replanted during each
planting period within the crop year, if separate planting periods are
allowed by the Special Provisions.
12. Duties In The Event of Damage or Loss
(a) Failure to meet the requirements of this section will result in
an appraised amount of production to count of not less than the
production guarantee per acre if such failure results in our inability
to make the required appraisal.
(b) In lieu of the provisions of section 14(b)(1) of the Basic
Provisions, so that we may inspect the insured crop, you must give us
notice within 72 hours of your initial discovery of damage if such
discovery occurs more than 15 days prior to harvest of the acreage.
(c) In addition to the provisions of section 14 of the Basic
Provisions, so that we may inspect the insured crop, you must give us
notice:
(1) Immediately if damage is discovered 15 days or less prior to the
beginning of harvest or during harvest.
(2) At least 15 days prior to the beginning of harvest, if direct
marketing of the insured crop is allowed by the Special Provisions, and
you intend to direct market any of the crop.
(3) At least 15 days before the earlier of:
(i) The date harvest would normally start if any acreage on the unit
will not be harvested; or
(ii) The beginning of harvest, if any production will be harvested
for a use other than as indicated on the acreage report.
(d) After you have provided the applicable notice required by
sections 12(b) and (c), we will conduct an appraisal to determine your
production to count for the purposes of section 13(d).
(1) Except as provided in section 12(e), you must not dispose of or
sell the damaged crop, or store the insured crop, until after we have
appraised it and given you written consent to do so.
(2) If additional damage occurs after this appraisal, except for
stored cabbage, we will conduct another appraisal.
(3) These appraisals, and any acceptable records provided by you,
will be used to determine your production to count in accordance with
section 13(d).
(e) In accordance with the requirements of section 14(c) of the
Basic Provisions, if you initially discover damage to any insured
cabbage within 15 days of or during harvest, you must leave
representative samples of the unharvested crop for our inspection. The
samples must be at least 3 rows wide and extend the entire length of
each field in the unit and must not be harvested or destroyed until the
earlier of our inspection or 15 days after completion of harvest on the
unit.
13. Settlement of Claim
(a) We will determine your loss on a unit basis.
(1) In the event you are unable to provide separate acceptable
production records:
(i) For any optional units, we will combine all optional units for
which such production records were not provided; and
(ii) For any basic units, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for the units.
(2) For any processor contract that stipulates only the amount of
production to be delivered, and notwithstanding the provisions of this
section or any unit division provisions contained in the Basic
Provisions, no indemnity will be paid for any loss of production on any
unit if you produced a crop sufficient to fulfill the processor
contract(s) forming the basis of the insurance guarantee;
(b) The extent of any damaged cabbage production must be determined
not later than the date the cabbage is placed in storage if the
production is stored prior to sale,
[[Page 402]]
or the date the cabbage is delivered to a buyer, wholesaler, packer,
processor, or other handler if production is not stored.
(c) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insurable acreage by its respective production
guarantee (per acre), by type if applicable;
(2) Multiplying each result in section 13(c)(1) by the respective
price election, by type if applicable;
(3) Totaling the results in section 13(c)(2);
(4) Multiplying the total production to count of each type, if
applicable (see section 13)(d)), by its respective price election;
(5) Totaling the results in section 13(c)(4);
(6) Subtracting the results in section 13(c)(5) from the results of
section 13(c)(3); and
(7) Multiplying the result in section 13(c)(6) by your share.
For example:
For a basic unit you have 100 percent share in 100 acres of cabbage,
50 acres for fresh market and 50 acres for processing as sauerkraut,
with a production guarantee (per acre) of 400 hundredweight per acre for
fresh market and 400 hundredweight per acre for processing as sauerkraut
and a price election of $5.00 per hundredweight for fresh market and
$1.90 per hundredweight for processing as sauerkraut. You are only able
to harvest 9,000 hundredweight of fresh market cabbage and 9,000
hundredweight of cabbage for sauerkraut because an insured cause of loss
has reduced production. Your total indemnity would be calculated as
follows:
(1) 50 acres x 400 hundredweight = 20,000 hundredweight guarantee
for the fresh market acreage.
50 acres x 400 hundredweight = 20,000 hundredweight guarantee for
the processing as sauerkraut acreage.
(2) 20,000 hundredweight guarantee x $5.00 price election = $100,000
value of guarantee for the fresh market cabbage.
20,000 hundredweight guarantee x $1.90 price election = $38,000
value of guarantee for processing as sauerkraut.
(3) $100,000 + $38,000 = $138,000 total value of guarantee.
(4) 9,000 hundredweight x $5.00 price election = $45,000 value of
production to count for the fresh market acreage.
9,000 hundredweight x $1.90 price election = $17,100 value of
production to count for the acreage for processing as sauerkraut.
(5) $45,000 + $17,100 = $62,100 total value of production to count.
(6) $138,000 -$62,100 = $75,900 loss.
(7) $75,900 x 100 percent share = $75,900 indemnity payment.
(d) The total production to count (in hundredweight) of marketable
cabbage from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee (per acre) for acreage:
(A) That is abandoned;
(B) For which you fail to meet the requirements contained in section
12;
(C) That is put to another use without our consent;
(D) That is damaged solely by uninsured causes; or
(E) For which you fail to provide production records that are
acceptable to us;
(ii) All production lost due to uninsured causes;
(iii) All unharvested marketable production;
(iv) All potential production on insured acreage that you intend to
put to another use or abandon, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end when you put the acreage to another use or abandon the
crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may
give you consent to put the acreage to another use if you agree to leave
intact, and provide sufficient care for, representative samples of the
crop in locations acceptable to us. (The amount of production to count
for such acreage will be based on the harvested production or appraisals
from the samples at the time harvest should have occurred. If you do not
leave the required samples intact, or fail to provide sufficient care
for the samples, our appraisal made prior to giving you consent to put
the acreage to another use will be used to determine the amount of
production to count); or
(B) If you elect to continue to care for the crop, the amount of
production to count for the acreage will be the harvested production, or
our reappraisal if additional damage occurs and the crop is not
harvested; and
(2) All harvested production from the insurable acreage.
(e) Mature production that is considered damaged cabbage production
but is sold will be adjusted for quality as follows:
(1) Dividing the amount received per hundredweight of such damaged
cabbage production by the applicable price election; and
(2) Multiplying the result by the number of hundredweight of damaged
cabbage production.
14. Late and Prevented Planting
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[74 FR 8709, Feb. 26, 2009, as amended at 74 FR 26281, June 2, 2009; 75
FR 15891, Mar. 30, 2010]
[[Page 403]]
Sec. 457.172 Coverage Enhancement Option.
The Coverage Enhancement Option for the 2009 and succeeding crop
years are as follows:
FCIC policies: United States Department of Agriculture, Federal Crop
Insurance Corporation.
Reinsured policies: (Appropriate title for insurance provider).
Both FCIC and reinsured policies: Coverage Enhancement Option.
Both FCIC and reinsured policies:
Coverage Enhancement Option
1. Definitions
CEO coverage level. The coverage level percentage contained in the
actuarial documents where the Coverage Enhancement Option (CEO) is
available and selected by you. This percentage is applicable under the
combined MPCI/CEO policy when losses under the MPCI policy exceed the
deductible and an indemnity is owed.
CEO dollar amount of insurance. The value of the additional
insurance coverage for each unit provided by the CEO, which is
determined by multiplying the CEO coverage level by the total value of
the insured crop by unit and subtracting the MPCI dollar amount of
insurance.
MPCI. Multiple Peril Crop Insurance, the plan of insurance offered
by the Federal Crop Insurance Corporation as published at 7 CFR part
457.
MPCI coverage level. The coverage level percentage you selected in
the underlying MPCI policy to which CEO is attached.
MPCI dollar amount of insurance. The value of the insurance coverage
for each unit provided under the MPCI policy (the amount of insurance
selected by you for dollar or similar plans of insurance, multiplied by
the number of acres in the unit if such amount of insurance is on a per
acre basis, or the amount determined by multiplying your production
guarantee (per acre), times the price election, times the number of
acres in the unit).
MPCI indemnity. The indemnity determined for each unit under the
MPCI policy to which CEO is attached, not including replant and
prevented planting payments or any indemnity payable under CEO.
MPCI indemnity factor. A factor determined by dividing the MPCI
indemnity by the MPCI dollar amount of insurance for each unit. This
factor is used to ensure that the indemnity paid under the CEO is
proportional to the amount of loss and indemnity paid under the MPCI
policy.
Total value of the insured crop by unit. The value of the crop that
is determined by dividing the MPCI dollar amount of insurance for each
unit by the MPCI coverage level.
2. CEO is only available for insured crops where the actuarial
documents contain a CEO coverage level. If there is a conflict between
the terms of CEO and any other provision of your policy, the terms of
the CEO will control.
3. To be eligible for CEO coverage on the insured crop, you must:
(a) Have an MPCI policy in force for the insured crop (or for citrus
fruit, citrus trees, and stone fruit or other crops, as applicable, the
insured type) and comply with all terms and conditions of such policy.
(b) Elect CEO in writing and choose a CEO coverage level (at least 5
percent higher than the MPCI coverage level), by the sales closing date
for the insured crop.
(c) Elect a level of coverage greater than the Catastrophic Risk
Protection (CAT) coverage level and a 100 percent price election. CEO is
not available for the CAT level of coverage.
4. CEO is continuous and will remain in effect for as long as you
continue to have a MPCI policy in effect for the insured crop, the
actuarial documents contain a CEO coverage level, or until it is
canceled by you or terminated by us on or before the cancellation or
termination date, as applicable.
5. The premium for your policy will be determined by:
(a) Totaling the MPCI dollar amount of insurance and the CEO dollar
amount of insurance; and
(b) Multiplying the result of section 5(a) by the premium rate for
the insured crop applicable to your MPCI coverage level
6. With respect to the coverage provided under CEO:
(a) All acreage of the insured crop insured under your MPCI policy
will be covered under the CEO;
(b) The amount of any replant or prevented planting payment that is
payable under the MPCI policy will not be affected by the CEO;
(c) An indemnity will be payable under the CEO only after the
underlying MPCI deductible is met and an MPCI indemnity is paid; and
(d) The total indemnity for each unit (MPCI coverage plus CEO)
cannot exceed the combination of both the MPCI and CEO dollar amounts of
insurance.
7. If you elect CEO and a MPCI indemnity is paid on any unit, CEO
will pay a portion of the loss not paid under the deductible of the MPCI
policy depending on the CEO coverage level you select (For example, if
you selected a 50 percent MPCI coverage level, selected an 85 percent
CEO coverage level, and had 60 percent loss of the insured crop, the
total amount of indemnity paid under both the MPCI policy and the CEO
would be equal to approximately 51 percent of the total value of the
insured crop by unit). See the example in section 8.
[[Page 404]]
8. In addition to the settlement of claim section for the applicable
Crop Provisions, your indemnity will be computed for each unit as
follows:
(a) Determine the MPCI indemnity factor;
(b) Determine the total value of the insured crop by unit;
(c) Determine the CEO dollar amount of insurance; and
(d) Multiply the MPCI indemnity factor times the CEO dollar amount
of insurance to determine the indemnity under the CEO.
Example: Assume a policy with one unit; an MPCI coverage level of 50
percent and a CEO coverage level of 85 percent; 100% share; a $120,000
MPCI dollar amount of insurance; and a $72,000 payable indemnity under
the MPCI portion of the policy.
Your indemnity would be calculated as follows:
(a) $72,000 MPCI loss / by $120,000 MPCI dollar amount of insurance
= .60 MPCI indemnity factor;
(b) $120,000 MPCI dollar amount of insurance, divided by the MPCI
coverage level of .50 results in $240,000 total value of the insured
crop by unit;
(c) $240,000 total value of the insured crop by unit multiplied by
the CEO coverage level .85, equals $204,000, and subtracting $120,000
MPCI dollar amount of insurance equals $84,000 CEO dollar amount of
insurance;
(d) .60 MPCI indemnity factor x $84,000 CEO dollar amount of
insurance = $50,400 unit indemnity under the CEO.
Note: The total unit indemnity is $122,400 ($72,000 MPCI indemnity
plus $50,400 CEO indemnity).
[73 FR 43610, July 28, 2008, as amended at 73 FR 80295, Dec. 31, 2008]
Sec. 457.173 Florida Avocado crop insurance provisions.
The Florida Avocado Crop Insurance Provisions for the 2011 and
succeeding crop years are as follows:
FCIC policies:
United States Department of Agriculture Federal Crop Insurance
Corporation
Reinsured policies: (Appropriate title for insurance provider)
Both FCIC and reinsured policies: Florida Avocado Crop Insurance
Provisions.
1. Definitions.
Bushel. A unit of measure equal to 55 pounds of avocados, unless
otherwise specified in the Special Provisions.
Buckhorn. To prune any limb at a diameter of at least four inches.
Crop year. A period beginning with the date insurance attaches to
the avocado crop and extending through the normal harvest time. The crop
year is designated by the calendar year after insurance attaches.
Direct marketing. Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand, farmer's
market, and permitting the general public to enter the fields for the
purpose of picking all or a portion of the crop.
Harvest. Picking of the avocados from the trees or ground by hand or
machine.
Pound. A unit of weight equal to sixteen ounces avoirdupois.
Set out. Transplanting a tree into the grove.
Type. Either early varieties or late varieties of avocados, as
specified in the Special Provisions.
2. Unit Division.
Provisions in section 34 of the Basic Provisions that allow optional
units by section, section equivalent, or FSA farm serial number and by
irrigated and non-irrigated practices are not applicable. Optional units
may be established by type when provided for in the Special Provisions.
3. Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities.
In addition to the requirements of section 3 of the Basic
Provisions:
(a) You may select only one coverage level for all the avocados in
the county insured under this policy unless the Special Provisions
provide that you may select a different coverage level for each avocado
type designated in the Special Provisions. However, if you elect the
Catastrophic Risk Protection (CAT) level of coverage, the CAT level of
coverage will be applicable to all types of avocados you produce in the
county.
(b) You may select only one price election for all the avocados in
the county insured under this policy unless the Special Provisions
provide different price elections by type, in which case you may select
one price election for each avocado type designated in the Special
Provisions. The price elections you choose for each type must have the
same percentage relationship to the maximum price offered by us for each
type. For example, if you choose 100 percent of the maximum price
election for one type, you must choose 100 percent of the maximum price
election for the other type. However, if you elect the CAT level of
coverage, the price election percentage will be equal to 55 percent of
the applicable price election for each type of avocado you produce in
the county.
(c) You must report, by the production reporting date designated in
section 3 of the Basic Provisions, by type, if applicable:
(1) Any damage, removal of trees, trees that have been buckhorned,
change in grove practices, or any other circumstance that may reduce the
expected yield per acre to
[[Page 405]]
less than the yield upon which the production guarantee per acre is
based, and the number of affected acres;
(2) The number of trees on insurable and uninsurable acreage;
(3) The age of the trees;
(4) Any acreage that is excluded under section 6 of these Crop
Provisions; and
(5) For acreage interplanted with another crop:
(i) The age of the interplanted crop, and type, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish
your production guarantee per acre.
(d) We will reduce the yield used to establish your production
guarantee as necessary, based on the effect of interplanting a perennial
crop; removal of trees; trees that have been buckhorned; damage; or a
change in practices on the yield potential of the insured crop. If you
fail to notify us of any circumstance as set out in paragraph (c) of
this section, we will reduce your production guarantee as necessary at
any time we become aware of the circumstance.
4. Contract Changes.
In accordance with section 4 of the Basic Provisions, the contract
change date is August 31 preceding the cancellation date.
5. Cancellation and Termination Dates.
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are the first November 30th after
insurance attaches.
6. Insured Crop.
(a) In accordance with section 8 of the Basic Provisions, the crop
insured will be all the commercially grown avocado types for which a
premium rate is provided by the actuarial documents for the county:
(1) In which you have a share;
(2) That are grown for harvest as avocados; and
(3) That are grown on trees that, if inspected, are considered
acceptable to us.
(b) In addition to the avocados not insurable in section 8 of the
Basic Provisions, we do not insure any avocados produced on trees that
have not:
(1) Reached the fourth growing season after set out; and
(2) Produced the minimum production per acre as specified in the
Special Provisions in at least one of the previous three crop years.
7. Insurable Acreage.
In lieu of the provisions in section 9 of the Basic Provisions that
prohibits insurance attaching to a crop planted with another crop,
avocados interplanted with another perennial crop are insurable unless
we inspect the acreage and determine it does not meet the requirements
of insurability contained in these Crop Provisions.
8. Insurance Period.
(a) In accordance with the provisions of section 11 of the Basic
Provisions:
(1) For the year of application:
(i) If you apply for coverage on or before November 21st, coverage
begins for the crop year on December 1 of the calendar year; or
(ii) If you apply for coverage after November 21 but prior to
December 1, insurance will attach on the 10th day after your properly
completed application is received in our local office, unless we inspect
the acreage during the 10-day period and determine that it does not meet
the requirements for insurability contained in your policy.
(iii) You must provide any information we require so we may
determine the condition of the grove to be insured.
(2) For continuous policies, coverage begins for the crop year on
December 1 of the calendar year. Policy cancellation that results solely
from transferring an existing policy to a different insurance provider
for a subsequent crop year will not be considered a break in continuous
coverage.
(3) The calendar date for the end of the insurance period, unless
otherwise specified in the Special Provisions, is:
(i) The first November 30th after insurance attaches for early
varieties of avocados.
(ii) The second March 31st after insurance attaches for late
varieties of avocados.
(b) In addition to the provisions of section 11 of the Basic
Provisions:
(1) If you acquire an insurable share in any insurable acreage of
avocados after coverage begins, but on or before the acreage reporting
date of any crop year, and if after inspection we consider the acreage
acceptable, then insurance will be considered to have attached to such
acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any acreage of
avocados on or before the acreage reporting date of any crop year,
insurance will not be considered to have attached to, no premium will be
due and no indemnity paid for, such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity or a similar
form approved by us is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
9. Causes of Loss.
(a) In accordance with the provisions of section 12 of the Basic
Provisions, insurance is provided only against the following causes of
loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been
controlled or pruning debris has not been removed from the grove;
[[Page 406]]
(3) Wildlife, unless control measures have not been taken;
(4) Earthquake;
(5) Volcanic eruption;
(6) Failure of the irrigation water supply caused by an insured
peril specified in section 9(a)(1) through (5) that occurs during the
insurance period.
(7) Insects, but not damage due to insufficient or improper
application of pest control measures; and
(8) Plant disease, but not due to insufficient or improper
application of disease control measures.
(b) In addition to the causes of loss excluded in section 12 of the
Basic Provisions, we will not insure against damage or loss of
production due to:
(1) Theft; or
(2) Inability to market the avocados for any reason other than
actual physical damage from an insurable cause specified in this
section. For example, we will not pay you an indemnity if you are unable
to market due to quarantine, boycott, or refusal of any person to accept
production, etc.
10. Duties in the Event of Damage or Loss.
In addition to the requirements of section 14 of the Basic
Provisions, the following will apply:
(a) You must notify us at least 15 days before any production from
any unit will be sold by direct marketing.
(1) We will conduct a preharvest appraisal that will be used to
determine your production. If damage occurs after the preharvest
appraisal, and you can provide acceptable records to us that account for
all production removed from the unit after our appraisal, we will
conduct an additional appraisal that will be used to determine your
production.
(2) Failure to give timely notice that production will be sold by
direct marketing will result in an appraised production to count of not
less than the production guarantee per acre if such failure results in
an inability to make an accurate appraisal.
(b) If you intend to claim an indemnity on any unit, you must notify
us 15 days prior to the beginning of harvest or immediately if damage is
discovered during harvest so that we may inspect the damaged production.
(1) You must not destroy the damaged crop until after we have given
you written consent to do so.
(2) If you fail to meet the requirements of this subsection, and
such failure results in our inability to inspect the damaged production,
we may consider all such production to be undamaged and include it as
production to count.
11. Settlement of Claim.
(a) We will determine your loss on a unit basis. In the event you
are unable to provide production records:
(1) For any optional unit, we will combine all optional units for
which acceptable production records were not provided; or
(2) For any basic unit, we will allocate any commingled production
to such units in proportion to our liability on the harvested acreage
for each unit.
(b) In the event of loss or damage covered by this policy, we will
settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by
its respective production guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective
price election for each type, if applicable;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted (see section
11(c)) by type, if applicable, by the respective price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the results in section 11(b)(5) from the results in
section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
For example:
You have a 100 percent share in 50 acres of early variety A in the
unit, with a guarantee of 140 bushels per acre and a price election of
$16.00 per bushel. You are only able to harvest 6,000 bushels due to an
insured cause of loss. Your indemnity would be calculated as follows:
(1) 50 acres x 140 bushels = 7,000 bushel guarantee;
(2) 7,000 bushels x $16.00 price election = $112,000.00 value of
guarantee;
(4) 6,000 bushels x $16.00 price election = $96,000.00 value of
production to count;
(6) $112,000.00 - $96,000.00 = $16,000 loss; and
(7) $16,000 x 100 percent = $16,000 indemnity.
(c) The total production to count from all insurable acreage on the
unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the
requirements contained in section 10 of these Crop Provisions;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are
acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production;
(iv) Potential production on insured acreage that you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for that
acreage will end. If you do not agree with our appraisal, we may defer
the claim only if you agree to continue to care for the crop. We will
then make another appraisal when you notify us of further damage or that
harvest is general
[[Page 407]]
in the area unless you harvested the crop, in which case we will use the
harvested production. If you do not continue to adequately care for the
crop, our appraisal made prior to deferring the claim will be used to
determine the production to count; and
(2) All harvested production from the insurable acreage.
12. Late and Prevented Planting.
The late and prevented planting provisions of the Basic Provisions
are not applicable.
[75 FR 15607, Mar. 30, 2010]
PART 458 [RESERVED]
[[Page 409]]
CHAPTER V--AGRICULTURAL RESEARCH SERVICE, DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------
Part Page
500 National Arboretum.......................... 411
501 Conduct on U.S. Meat Animal Research Center,
Clay Center, Nebraska................... 416
502 Conduct on Beltsville Agriculture Research
Center Property, Beltsville, Maryland... 419
503 Conduct on Plum Island Animal Disease Center 421
504 User fees................................... 423
505 National Agricultural Library fees for loans
and copying............................. 423
510 Public information.......................... 424
520 Procedures for implementing National
Environmental Policy Act................ 425
550 General administrative policy for non-
assistance cooperative agreements....... 428
[[Page 411]]
PART 500_NATIONAL ARBORETUM
Subpart A_Conduct on U.S. National Arboretum Property
Sec.
500.1 General.
500.2 Recording presence.
500.3 Preservation of property.
500.4 Conformity with signs and emergency directions.
500.5 Nuisances.
500.6 Gambling.
500.7 Intoxicating beverages and narcotics.
500.8 Soliciting, vending, debt collection, and distribution of
handbills.
500.9 Photographs for news or advertising.
500.10 Pets.
500.11 Vehicular and pedestrian traffic.
500.12 Weapons and explosives.
500.13 Nondiscrimination.
500.14 Exceptions.
500.15 Penalties and other law.
Subpart B_Fee Schedule for Certain Uses of National Arboretum Facilities
and Grounds
500.20 Scope.
500.21 Fee schedule for tram and tours.
500.22 Fees and conditions for use of facilities and grounds.
500.23 Fees for commercial photography and cinematography on grounds.
500.24 Fee schedule.
500.25 Payment of fees.
Authority: 20 U.S.C. 196(a); sub secs. 2, 4, 5; 40 U.S.C. 121(d); 40
U.S.C. 1315(c).
Source: 70 FR 55708, Sept. 23, 2005, unless otherwise noted.
Subpart A_Conduct on U.S. National Arboreturm Property
Sec. 500.1 General.
The rules and regulations in this part apply to the buildings and
grounds of the U.S. National Arboretum (USNA), Washington, DC, and to
all persons entering in or on such property. The Administrator, General
Services Administration, has delegated to the Secretary of Agriculture,
with authority to further delegate, the authority to make all the
needful rules and regulations for the protection of the buildings and
grounds of the USNA (34 FR 6406). The Secretary of Agriculture has in
turn delegated such authority to the Administrator, Agricultural
Research Service (34 FR 7389). The rules and regulations in this part
are issued pursuant to such delegations.
Sec. 500.2 Recording presence.
Admission to the USNA during periods when it is closed to the public
will be limited to authorized individuals who may be required to sign
the register or display identification documents when requested by the
Security Staff, or other authorized individuals.
Sec. 500.3 Preservation of property.
(a) While at the USNA, it is unlawful to:
(1) Willfully destroy, damage, or remove USNA property or any part
thereof;
(2) Set or maintain any open fire on the property of the USNA;
however, the use of small candles may be approved at the discretion of
the Director, USNA; or
(3) Apply any type of insecticide or herbicide on the grounds of the
USNA, except for USNA employees in the course of their official duties
or other persons authorized by the Director, USNA.
(b) Persons not employed by USNA are not permitted to bring
biological agents of any kind, including but not limited to disease and
pest agents of plants, onto the property without written permission of
the Director, USNA.
Sec. 500.4 Conformity with signs and emergency directions.
Persons in and on property of the USNA shall comply with official
signs of prohibitory or directive nature and with the directions of
authorized individuals.
Sec. 500.5 Nuisances.
(a) The use of loud, abusive, or otherwise improper language;
unwarranted loitering, sleeping, or assembly; the creation of any hazard
to persons or things; improper disposal of rubbish; spitting; prurient
prying; the commission of any obscene or indecent act, or any other
unseemly or disorderly conduct; throwing articles of any kind from a
building, and climbing upon any part of a building is prohibited.
(b) Playing of music or creation of other noises of a decibel level
high
[[Page 412]]
enough to be heard outside of the USNA is prohibited.
Sec. 500.6 Gambling.
Participating in games for money or other personal property, or the
operation of gambling devices, the conduct of a lottery or pool, or the
selling or purchasing of numbers tickets, in or on USNA property, is
prohibited.
Sec. 500.7 Intoxicating beverages and narcotics.
(a) Entering USNA property or the operation of a motor vehicle
thereon, by a person under the influence of intoxicating beverages or a
narcotic drug, is prohibited.
(b) Except as provided in subpart B of this part, possession of or
consumption of intoxicating beverages on USNA property is prohibited.
(c) The sale of alcoholic beverages on the grounds of the USNA is
prohibited.
(d) The possession of or use of narcotic drugs on the grounds of the
USNA is prohibited.
Sec. 500.8 Soliciting, vending, debt collection, and distribution of
handbills.
(a) The following activities are prohibited on USNA grounds:
(1) Soliciting of alms or contributions;
(2) Display or distribution of commercial advertising;
(3) Collecting private debts;
(4) Campaigning for election to any office;
(5) Soliciting and vending for commercial purposes (including, but
not limited to, the vending of newspapers and other publications);
(6) Soliciting signatures on petitions, polls, or surveys (except as
authorized by the USNA); and
(7) Impeding ingress to or egress from the USNA.
(b) Distribution to USNA general public visitors of material such as
pamphlets, handbills, and flyers is prohibited without prior approval of
the Director, USNA.
(c) The prohibitions in paragraphs (a) and (b) of this section do
not apply to:
(1) Commercial or nonprofit activities performed under contract or
concession with the USNA or pursuant to the provisions of the Randolph
Sheppard Act;
(2) The solicitation of USNA personnel for contributions for the
Combined Federal Campaign (CFC);
(3) National or local drives for funds for welfare, health, and
other purposes sponsored or approved by the Agricultural Research
Service; or
(4) Personal notices posted by employees on authorized bulletin
boards.
Sec. 500.9 Photographs for news or advertising.
Photographs for news purposes may be taken at the USNA without prior
permission. Photographs for advertising and other commercial purposes
may be taken, but only with the prior approval of the Director, USNA and
fees may be charged pursuant to Sec. 500.23.
Sec. 500.10 Pets.
Pets brought upon USNA property must have proper vaccinations and,
except assistance trained animals, must be kept on leash at all times.
The release or abandonment of fish, plants, and animals of any kind on
USNA grounds is prohibited.
Sec. 500.11 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles in or on USNA property shall drive only
on established roads, shall drive in a careful and safe manner at all
times, and shall comply with the signals and directions of the Security
Staff and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms,
or fire hydrants, and parking in designated no parking areas in or on
USNA property is prohibited.
(c) Except in emergencies, parking in or on USNA property in other
than designated areas is not allowed without a permit. Parking without
authority, parking in unauthorized locations or in locations reserved
for other persons, or contrary to the direction of posted signs, is
prohibited.
(d) USNA approval is required for all vehicles needed for access
setup and
[[Page 413]]
breakdown activities relating to special events, ceremonies, or related
activities. Off-road routes will be determined by the USNA.
(e) In addition to the penalties provided in Sec. 500.15, vehicles
parked in violation of this section are subject to being towed and the
cost of such towing being assessed to the owner of such vehicle.
(f) This section may be supplemented from time to time, by the
issuance and posting of specific traffic directives as may be required,
and when so issued and posted such directives shall have the same force
and effect as if incorporated in this subpart.
Sec. 500.12 Weapons and explosives.
(a) No person while in or on USNA property shall carry firearms,
other dangerous or deadly weapons, or explosives, either openly or
concealed, except for authorized official purposes.
(b) No person while in or on the USNA shall ignite fireworks or
other pyrotechnical devices.
Sec. 500.13 Nondiscrimination.
The USNA is subject to the policy of nondiscrimination in programs
or activities conducted by the United States Department of Agriculture
as set forth in 7 CFR part 15d.
Sec. 500.14 Exceptions.
The Administrator, Agricultural Research Service, may in individual
cases make prior, written exceptions to the rules and regulations in
this part if it is determined to be not adverse to the public interest.
Sec. 500.15 Penalties and other law.
Whoever shall be found guilty of violating the rules and regulations
in this subpart is subject to fine under title 18, United States Code,
or imprisonment of not more than 30 days, or both (see 40 U.S.C.
1315(c)). Nothing contained in the rules and regulations in this part
shall be construed as abrogating or authorizing the abrogation of any
other regulations or any Federal law or any laws and regulations of the
District of Columbia that may be applicable.
Subpart B_Fee Schedule for Certain Uses of National Arboretum Facilities
and Grounds
Sec. 500.20 Scope.
This subpart sets forth schedules of fees for temporary use by
individuals or groups of United States National Arboretum (USNA)
facilities and grounds. This subpart also sets forth schedules of fees
for the use of the USNA for commercial photography and cinematography.
Fees generated will be used to offset costs of services or for the
purposes of promoting the mission of the USNA. All rules and regulations
noted in 7 CFR 500, subpart A--Conduct on the U.S. National Arboretum
Property, will apply to individuals or groups granted approval to use
the facilities and grounds for the purposes specified in this subpart.
Sec. 500.21 Fee schedule for tram and tours.
The USNA provides tours of the USNA grounds in a 48-passenger tram
(accommodating 2 wheelchairs). The fee is as follows: $4.00 per adult,
$3.00 per senior citizen or Friend of the National Arboretum, and $2.00
per child under the age 17. Children under 4 sharing a seat with an
adult will not be charged. Pre-scheduled tram tours for groups may be
arranged for a set fee of $125.00. Additionally, a tour guide may be
pre-arranged to provide a non-tram tour for the fee of $50 per hour.
Promotional programs offering discounted fees for these programs may be
instituted at the discretion of the USNA. Payment for use of the tram is
due at the time of ticket purchase. Payment for pre-scheduled tram tours
must be made at least one week in advance. Payment for pre-scheduled,
non-tram guided tours must be made at least one week in advance of the
tour date.
Sec. 500.22 Fees and conditions for use of facilities and grounds.
(a) Fee requirement. (1) The USNA will charge a fee for temporary
use by individuals or groups of USNA facilities and grounds. Fees for
specific sites are listed in Sec. 500.24.
(2) Non-profit scientific or educational organizations whose
purposes and interests are complementary to
[[Page 414]]
the mission of the USNA and which substantially support the mission and
purpose of the USNA (e.g., Friends of the National Arboretum, National
Bonsai Foundation, National Capital Area Federation of Garden Clubs,
Herb Society of America) may be exempted from the fee for use of USNA
facility or grounds requirement of this subpart by the Director, but
still must reimburse the USNA for its costs, including setup, clean-up,
security, and other costs as applicable.
(3) A Half Day usage is defined as 4 hours or less; a Whole Day
usage is defined as more than 4 hours in a day. In all cases, usage
includes all time during which a venue is committed, including time used
to set up before and clean up after an event. For after-hours usage of
sites or facilities, an additional $40/hour will be added for
supervision for each required staff member or security officer, with
higher amounts required for sites or facilities that are more sensitive.
(b) Reservations. (1) Facilities and grounds are available by
reservation at the discretion of the Director of the USNA and may be
available to individuals or groups for uses that are consistent with the
mission of the USNA. Agency initiatives may be granted first priority.
Offices and hallways inside secured doors will not be available for use.
(2) Reservations to use USNA facilities and grounds may be made
directly with the USNA. To ensure consideration, reservation requests
should be made as far in advance as possible with a minimum of 15
calendar days prior to the date of use required for all reservations.
This advanced notice will provide the USNA adequate time to prepare
sites and assign staff and supervision as necessary.
(3) The USNA will make every effort to respond to requests in a
quick and timely fashion. The USNA will respond to reservation requests
within 5 working days with information as to whether the requested site
is available for use. The USNA will also give notice to the prospective
user of any planned activities (construction, maintenance, pesticide
applications, and any similar activities) that might affect the planned
use or event.
(4) A 50 percent non-refundable deposit will be due at the time of a
booking in order to reserve a specific date and location. The remaining
50 percent is due five working days prior to the event.
(c) Terms and conditions of use. (1) The USNA provides space, water,
and electrical hookup when available, and restrooms where available.
Users must provide all tents, tables, chairs, trash receptacles, or
other property required for the scheduled event. Users must remove all
trash from the property at the conclusion of the event. Users must
remove all tents, tables and chairs, and other property no later than
5:00 p.m. of the day following the event. The USNA will charge a
facility use and break down fee of $500.00 per day for each day
following the deadline to remove temporary facilities and equipment. The
USNA will not store temporary facilities or equipment for users.
(2) Users must abide by USNA vehicle regulations in Sec. 500.11
including the requirement to obtain USNA approval whenever off road
access is required for setup.
(3) The USNA will not assume any responsibility for last minute
changes due to failure of current mechanical systems, severe storms and
other weather events, emergencies relating to security and safety.
(4) Some events that involve bringing animals and certain plants
onto the USNA property may not be compatible with the plant research,
display, and education mission of the USNA. Such events will be
evaluated on a case-by-case basis and exceptions may be made by the
Director of the USNA.
(5) Music and bands will be permitted but the decibel level of music
should not be loud enough to be heard outside the boundaries of the
USNA.
(6) (i) A refundable deposit as specified in paragraph (c)(6)(ii) of
this section for use of the facility or grounds, excluding the
classroom, will be collected in advance. In the event of building,
property, or grounds damage or excessive cleaning requirements, the
deposit will be used for repair and remediation and the balance will be
refunded within 30 days of the event date.
[[Page 415]]
In the event that cleaning requirements or damage to the building,
property or grounds exceeds the amount of the refundable deposit, the
deposit will be used in full, with additional charges billed and due
within 30 days of billing. Damages to plants, grounds, facilities, or
equipment will be assessed on a value based on replacement costs,
including labor.
(ii) Refundable Deposit Schedule.
------------------------------------------------------------------------
Refundable
Event fee deposit
required
------------------------------------------------------------------------
$15,000-10,000............................................. $2,000
$9,999-5,000............................................... 1,000
$4,999 and less............................................ 500
------------------------------------------------------------------------
(7) Upon prior request, the Director may approve the consumption of
beer and wine during uses of USNA pursuant to this section. Such
permission generally will not be granted during times when USNA is open
to the public. Director approval shall be conditioned upon compliance by
users and by any of their agents or contractors, with all applicable
provisions of the District of Columbia Code governing sale and
consumption of alcoholic beverages, including the rules of the District
of Columbia Department of Consumer Affairs, Alcoholic Beverage
Regulation Administration.
(8) All users of the USNA pursuant to this subpart, as well as all
those contracting with such users of the USNA, shall comply with all
Federal and local laws.
(9) The USNA is a Federal property under the jurisdiction of the
United States Department of Agriculture.
All activities are subject to Federal rules and regulations
governing the use of public buildings and grounds.
(10) The USNA will not be responsible for any damage or loss
suffered by an individual, group, or their contractor during a permitted
event at the USNA.
(11) The Director may impose additional incidental terms and
conditions concerning the use of the USNA facilities consistent with
this part.
(12) Marriage ceremonies and accompanying receptions may only be
held in the Dogwood Collection.
Sec. 500.23 Fees for commercial photography and cinematography on
grounds.
The USNA may charge a fee for the use of the facility or grounds for
purposes of commercial photography or cinematography as specified in
Sec. 500.24. Facilities and grounds are available for use for commercial
photography or cinematography at the discretion of the USNA Director.
Requests for use should be made a minimum of two weeks in advance of the
required date. The USNA will charge for supervision costs at the rate of
$40.00 per hour per security officer, in addition to the fees listed
below. The USNA Director may waive fees for photography or
cinematography conducted for the purpose of disseminating information to
the public regarding the USNA and its mission or for the purpose of
First Amendment activity. The USNA will charge a non-refundable
application fee of $30 for commercial photography or cinematography
activities that use models, sets or props that are not part of the
natural, cultural resources, or administrative facilities features of
the site; take place where members of the public are generally not
allowed; or take place at a location where additional administrative
costs are likely. If the application is approved and fees will be
incurred, the application fee will be applied to the total fee due. No
other credits will be given for the application fee. Fee payments for
use of facilities or grounds or for commercial photography and
cinematography must be made in advance of services being rendered. These
payments are to be made in the form of a check or money order.
Sec. 500.24 Fee Schedule.
----------------------------------------------------------------------------------------------------------------
Event by category Fee* Unit Notes
----------------------------------------------------------------------------------------------------------------
USNA Terrace........................ $12,000................. Per Day................. Up to 240 seated or
300 standing.
[[Page 416]]
USNA Herb Garden.................... 10,000.................. Per Day................. Entrance Circle, Rose
and Knot Garden: Up
to 48 seated or 100
standing; cannot be
tented. Specialty
Garden: Up to 200
standing; may not be
tented.
USNA Meadow......................... 15,000.................. Per Day................. Up to 600 seated or
1000 standing.
USNA Administration Building Lobby.. 2,000................... Per Day................. Up to 150 standing.
USNA Auditorium..................... 2,500................... Per Day................. Up to 120 seated or
200 standing.
Friendship Garden................... 1,500................... Per Day................. Up to 60 seated or 100
standing.
National Capitol Columns............ 10,000.................. Per Day................. Up to 190 seated or
400 standing; cannot
be tented; includes
night lighting of
columns.
Bonsai Museum International, 10,000.................. Per Day................. Up to 120 seated or
Pavilion and Upper Courtyard. 200 standing.
Bonsai Museum Chinese Pavilion...... 10,000.................. Per Day................. Up to 50 seated or 100
standing.
Dogwood Collection Allee & Circle... 3,000................... Per Day................. Up to maximum of 150
people at event;
reserved for marriage
ceremonies and
accompanying
receptions only.
M Street Picnic Area................ 5,000................... Per Day................. Up to 200 seated or
standing; paved or
grassy areas can be
tented.
Classroom........................... 125..................... Per Day................. Standard set-up with
50...................... Per Half Day............ 40 chairs; includes
microphone/lectern,
screen, projection
stand, two flip
charts (no paper),
and trashcan.
Still Photography:
Individual...................... No Charge............... ........................ For personal use only;
includes hand-held
cameras, recorders
and tripods.
Other............................... $30..................... Application Fee......... All photography that
$250 plus Supervision... Per Half Day............ use models, sets or
props that are not
part of the site's
natural or cultural
resources or
administrative
facilities; or take
place where members
of the public are
generally not
allowed; or take
place at a location
where additional
administrative costs
are likely.
Cinematography:
Set Preparation................. $30..................... Application Fee......... Set up; no filming.
$250 plus Supervision... Per Whole Day...........
Filming............................. $1,500 to $3,900........ Per Whole Day........... Sliding scale based on
number of people in
cast and crew and
number of pieces of
equipment from 45
people and 6 pieces
of equipment = $1,500
to 200 people =
$3,900; 5 people with
carry on equipment =
same as still
photography.
----------------------------------------------------------------------------------------------------------------
* Fees include only access to sites; additional security charges may be necessary depending upon the site and
the number of people participating.
Sec. 500.25 Payment of fees.
(a) Unless provided otherwise, all payments due under this subpart
must be made by cash, check, or money order (in U.S. funds). Checks and
money orders for payment of any fees imposed under this part are to be
made payable, in U.S. funds, to the ``U.S. National Arboretum.'' Upon
request, the USNA shall provide receipts to requesters for their records
or billing purposes. If the USNA enters into an agreement to allow USNA
visitors and users to make payment in the form of a credit card, USNA
visitors and users who are assessed user fees may pay those fees with a
credit card subject to the terms and conditions of such agreement.
(b) Any fees that become past due shall be collected in accordance
with 7 CFR part 3.
PART 501_CONDUCT ON U.S. MEAT ANIMAL RESEARCH CENTER, CLAY CENTER,
NEBRASKA
Sec.
501.1 General.
501.2 Admission.
501.3 Preservation of property.
501.4 Conformity with signs and emergency directions.
501.5 Nuisances.
501.6 Gambling.
501.7 Intoxicating beverages and narcotics.
[[Page 417]]
501.8 Soliciting, vending, debt collection, and distribution of
handbills.
501.9 Photographs for news, advertising, or commercial purposes.
501.10 Pets.
501.11 Mobile equipment and pedestrian traffic.
501.12 Weapons and explosives.
501.13 Nondiscrimination.
501.14 Non-Federal law enforcement.
501.15 Exceptions.
501.16 Penalties and other law.
Authority: Secs. 2, 4, 62 Stat. 281; 40 U.S.C. 318(a), (c); sec.
103, 63 Stat. 380; 40 U.S.C. 753; sec. 205(d), 63 Stat. 389; 40 U.S.C.
486(d); 36 FR 1293 and 36 FR 21706.
Source: 37 FR 2423, Feb. 1, 1972, unless otherwise noted.
Sec. 501.1 General.
The rules and regulations in this part apply to all property of or
under the charge or control of the U.S. Meat Animal Research Center,
Clay Center, Nebr. (hereinafter referred to as the Research Center), and
to all persons entering in or on such property. The Administrator,
General Services Administration, has delegated to the Secretary of
Agriculture, with authority to redelegate, the authority to make all the
needful rules and regulations for the protection of the Research Center
(36 FR 1293). The Secretary of Agriculture has delegated this authority
to the Director of Science and Education (36 FR 21706) who in turn has
delegated such authority to the Administrator, Agricultural Research
Service (36 FR 21706). The rules and regulations in this part are issued
pursuant to such delegations. It is the responsibility of occupant or
cooperating agency to require observance of these rules and regulations.
Sec. 501.2 Admission.
Admission to the Research Center during ``off duty'' hours shall be
restricted to the main arteries and any deviation therefrom by
individuals shall be limited to authorized individuals who may be
required to sign a register and display identification documents when
requested by a guard or other authorized individuals. ``Off duty'' hours
will be posted at the Research Center. Admission during ``duty'' hours
when the Center is closed to the public in emergency situations will be
limited to authorized individuals who may be required to sign a register
and display identification documents when requested by a guard or other
authorized individual.
Sec. 501.3 Preservation of property.
It is unlawful to willfully destroy, damage, or remove property or
any part thereof. Hunting, fishing, motorcycling, using snowmobiles, and
other disturbances or encroachment activities are prohibited except for
official purposes.
Sec. 501.4 Conformity with signs and emergency directions.
Persons in and on property of the Research Center shall comply with
official signs of a prohibitory or directory nature, and with the
directions of authorized individuals.
Sec. 501.5 Nuisances.
The use of loud, abusive, or otherwise improper language,
unwarranted loitering, sleeping, or assembly, the creation of any hazard
to persons or things, improper disposal of rubbish, spitting, prurient
prying, the commission of any obscene or indecent act, or any other
unseemly or disorderly conduct, throwing articles of any kind from a
building, or climbing upon any part of a building is prohibited.
Further, conduct which obstructs the usual use of entrances, foyers,
corridors, offices, elevators, stairways and parking lots, or which
otherwise tends to impede or disturb Center employees in the performance
of their duties or which otherwise impedes the general public from
obtaining the administrative services provided by the Research Center is
prohibited.
Sec. 501.6 Gambling.
Participating in games for money or other personal property, or the
operation of gambling devices, the conduct of a lottery or pool, or the
selling or purchasing of numbers tickets, in or on Research Center
property, is prohibited.
Sec. 501.7 Intoxicating beverages and narcotics.
Entering Research Center property or the operating of a motor
vehicle
[[Page 418]]
thereon, by a person under the influence of intoxicating beverages or
narcotic drug, hallucinogen, marijuana, barbiturate, or amphetamine
(unless prescribed by a physician) or the consumption of such beverages,
or the use of any such drug or substance in or on the Research Center
property, is prohibited.
Sec. 501.8 Soliciting, vending, debt collection, and distribution of
handbills.
The soliciting of alms and contributions, commercial soliciting and
vending of all kinds, the display or distribution of commercial
advertising, or the collecting of private debts, in or on Research
Center property, is prohibited. This section does not apply to national
or local drives for funds for welfare, health, and other purposes
sponsored or approved by the Agricultural Research Service, concessions,
or personal notices posted by employees on authorized bulletin boards.
Distribution of material such as pamphlets, handbills, and flyers or the
posting of mateirals on bulletin boards or elsewhere, is prohibited
without prior approval of authorized individuals.
Sec. 501.9 Photographs for news, advertising, or commercial purposes.
Except where security regulations apply, or a Federal court order or
rules prohibit it, photographs for news purposes may be taken in
entrances, lobbies, foyers or auditoriums when used for public meetings
without prior permission. Photographs for advertising and commercial
purposes may be taken only with the prior written permission of the
Director, Research Center. Photographs for news, advertising, or
commercial purposes may be taken in space or areas occupied by a
cooperator only with the consent of the cooperator concerned and the
Director, Research Center.
Sec. 501.10 Pets.
Animals shall be brought or allowed, as applicable, upon the
Research Center only with the prior written approval of the Director,
Research Center, except seeing eye dogs may be brought to the reception
area serving the offices of the Director, Research Center, without prior
approval.
Sec. 501.11 Mobile equipment and pedestrian traffic.
(a) Drivers, operators, or pilots of all equipment whether or not
motorized in or on Research Center property, or within the scope of
Research Center activity, shall operate in a careful and safe manner at
all times and shall comply with the signals and directions of guards,
special policemen, or other authorized individuals, and all posted
traffic signs;
(b) The blocking of entrances, driveways, walks, railways, runways,
loading platforms, or fire hydrants in or on Research Center property is
prohibited;
(c) Except in emergencies, parking or landing in or on Research
Center property in other than designated areas is not allowed without a
permit. Parking without authority, parking in unauthorized locations or
in locations reserved for other persons, or parking continuously in
excess of ten hours without permission, or contrary to the direction of
posted signs is prohibited. This section may be supplemented from time
to time by the issuance and posting of specific traffic directives as
may be required, and when so issued and posted such directives shall
have the same force and effect as if made a part hereof;
(d) The operation of unlicensed gasoline powered vehicles is
prohibited.
Sec. 501.12 Weapons and explosives.
No person while in or on Research Center property shall carry
firearms, bows and arrows, darts, other dangerous or deadly weapons, or
explosives, either openly or concealed, except as officially authorized,
for official purposes.
Sec. 501.13 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against
any person or persons because of race, sex, religion, color, or national
origin, in furnishing, or by refusing to furnish to such person or
persons the use of any facility of a public nature, including all
service, privileges, accommodations, and activities provided thereby on
Research Center property.
[[Page 419]]
Sec. 501.14 Non-Federal law enforcement.
Research Center special policemen may be deputized by State or local
law enforcement agencies to exercise police power on property outside
the Research Center. With the consent of any State or local law
enforcement agency, the facilities or services of such State or local
law enforcement agency may be utilized by the Research Center.
Sec. 501.15 Exceptions.
The Administrator, Agricultural Research Service, may in individual
cases make prior, written exceptions to the rules and regulations in
this part if he determines it to be not adverse to the public interest.
Sec. 501.16 Penalties and other law.
Whoever shall be found guilty of violating the rules and regulations
in this part where the United States has and exercises exclusive or
concurrent legislative jurisdiction, is subject to fine of not more than
$50 or imprisonment or not more than 30 days, or both (see 40 U.S.C.
318c). Nothing contained in the rules, regulations, or penalties in this
part shall be construed as abrogating or authorizing the abrogation of
any other rules, regulations, penalties, or any Federal law, or any
State and local laws and regulations which may be applicable.
PART 502_CONDUCT ON BELTSVILLE AGRICULTURE RESEARCH CENTER PROPERTY,
BELTSVILLE, MARYLAND
Sec.
502.1 General.
502.2 Admission.
502.3 Preservation of property.
502.4 Conformity with signs and emergency directions.
502.5 Nuisances.
502.6 Hunting, fishing, camping, horseback riding.
502.7 Gambling.
502.8 Intoxicating beverages and narcotics.
502.9 Soliciting, vending, debt collection, and distribution of
handbills.
502.10 Photographs by visitors or for news, advertising, or commercial
purposes.
502.11 Pets.
502.12 Vehicular and pedestrian traffic.
502.13 Weapons and explosives.
502.14 Nondiscrimination.
502.15 Exceptions.
502.16 Penalties and other law.
Authority: Secs. 2, 4, 62 Stat. 281; 40 U.S.C. 318 (a), (c); sec.
103, 63 Stat. 380; 40 U.S.C. 753; sec. 205(d), 63 Stat. 389; 40 U.S.C.
486(d); 36 FR 18440 and 60 FR 56392.
Source: 37 FR 2424, Feb. 1, 1972, unless otherwise noted.
Sec. 502.1 General.
The rules and regulations in this part apply to the buildings and
grounds of the Beltsville Agricultural Research Center (BARC),
Beltsville, MD, and to any persons entering in or on such property. The
Administrator, General Services Administration, has delegated to the
Secretary of Agriculture, with authority to redelegate, the authority to
make all the needful rules and regulations for the protection of the
buildings, grounds, equipment, and experimental plants and animals of
BARC (36 FR 18440). The Secretary of Agriculture has delegated this
authority to the Under Secretary for Research, Education, and Economics
(60 FR 56392) who in turn has delegated such authority to the
Administrator, Agricultural Research Service (60 FR 56392). The rules
and regulations in this part are issued pursuant to such delegations.
[61 FR 51211, Oct. 1, 1996]
Sec. 502.2 Admission.
Admission to BARC during ``off duty'' hours shall be restricted to
the main arteries and any deviation therefrom by individuals shall be
limited to authorized individuals who may be required to sign a register
and display identification documents when requested by BARC Security or
other authorized individual. ``Off duty'' hours will be posted at BARC.
Admission during ``duty'' hours when BARC is closed to the public in
emergency situations will be limited to authorized individuals who may
be required to sign a register and display identification documents when
requested by BARC Security or other authorized individual.
[61 FR 51211, Oct. 1, 1996]
Sec. 502.3 Preservation of property.
It is unlawful to willfully destroy, damage, or remove property or
any part thereof.
[[Page 420]]
Sec. 502.4 Conformity with signs and emergency directions.
Persons in and on property of BARC shall comply with official signs
of a prohibitory or directory nature, and with the directions of
authorized individuals.
[61 FR 51211, Oct. 1, 1996]
Sec. 502.5 Nuisances.
The use of loud, abusive or otherwise improper language, unwarranted
loitering, sleeping, or assembly, the creating of any hazard to persons
or things, improper disposal of rubbish, spitting, prurient prying, the
commission of any obscene or indecent act, or any other unseemly or
disorderly conduct, throwing articles of any kind from a building, or
climbing upon any part of a building is prohibited. Further, conduct
which obstructs the usual use of entrances, foyers, corridors, office
elevators, stairways and parking lots, or which otherwise tends to
impede or disturb BARC employees in the performance of their duties or
which otherwise impedes the general public from obtaining the
administrative services provided by BARC is prohibited.
[61 FR 51211, Oct. 1, 1996]
Sec. 502.6 Hunting, fishing, camping, horseback riding.
The use of BARC grounds for any form of hunting, fishing, camping,
or horseback riding is prohibited. Further, the use of these grounds for
unauthorized picnicking is also prohibited.
[61 FR 51211, Oct. 1, 1996]
Sec. 502.7 Gambling.
Participating in games for money or other personal property, or the
operation of gambling devices, the conduct of a lottery or pool, or the
selling or purchasing of numbers tickets, in or on BARC property, is
prohibited.
[61 FR 51211, Oct. 1, 1996]
Sec. 502.8 Intoxicating beverages and narcotics.
Entering BARC property or the operation of a motor vehicle thereon,
by a person under the influence of intoxicating beverages or narcotic
drug, hallucinogen, marihuana, barbiturate, or amphetamine (unless
prescribed by a physician) or the consumption of such beverages, or the
use of any such drug or substance in or on BARC property, is prohibited.
[61 FR 51211, Oct. 1, 1996]
Sec. 502.9 Soliciting, vending, debt collection, and distribution of
handbills.
The soliciting of alms and contributions, commercial soliciting and
vending of all kinds or the display or distribution of commercial
advertising, or the collecting of private debts, in or on BARC property,
is prohibited. This section does not apply to national or local drives
for funds for welfare, health, and other purposes sponsored or approved
by the Agricultural Research Service, concessions, or personal notices
posted by employees on authorized bulletin boards. Distribution of
material such as pamphlets, handbills, and flyers or the posting of
materials on bulletin boards or elsewhere is prohibited without prior
approval of the Director, Beltsville Area.
[61 FR 51211, Oct. 1, 1996]
Sec. 502.10 Photographs by visitors or for news, advertising, or
commercial purposes.
Photographs may be taken by visitors or for news purposes without
prior permission. Photographs for advertising and commercial purposes
may be taken at BARC only with the prior written approval of the
Director, Beltsville Area.
[61 FR 51212, Oct. 1, 1996]
Sec. 502.11 Pets.
Pets, except assistance trained animals, brought upon BARC property
must be kept on a leash and have proper vaccinations. Pets that are the
property of employees residing on BARC must be up to date on their
vaccinations, in accordance with State or local laws, and be kept on a
leash or similarly restrained. The abandonment of unwanted animals on
BARC grounds is prohibited.
[61 FR 51212, Oct. 1, 1996]
[[Page 421]]
Sec. 502.12 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles whether or not motorized in or on BARC
property shall drive in a careful and safe manner at all times and shall
comply with the signals and directions of the security staff and all
posted traffic signs;
(b) The blocking of entrances, driveways, walks, loading platforms,
or fire hydrants in or on BARC property is prohibited;
(c) Except in emergencies, parking in or on BARC property in other
than designated areas is not allowed without a permit. Parking without
authority, parking in unauthorized locations or in locations reserved
for other persons, or contrary to the direction of posted signs is
prohibited. This section may be supplemented from time to time, by the
issuance and posting of specific traffic directives as may be required,
and when so issued and posted such directives shall have the same force
and effect as if made a part hereof.
(d) The operation of unlicensed gasoline powered vehicles is
prohibited.
[37 FR 2424, Feb. 1, 1972, as amended at 61 FR 51212, Oct. 1, 1996]
Sec. 502.13 Weapons and explosives.
No person while in or on BARC property shall carry firearms, other
dangerous or deadly weapons, or explosives, either openly or concealed,
except as officially authorized for official purposes.
[61 FR 51212, Oct. 1, 1996]
Sec. 502.14 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against
any person or persons because of race, religion, color, sex, age,
disability or national origin, in furnishing, or by refusing to furnish
to such person or persons the use of any facility of a public nature,
including all services, privileges, accommodations, and activities
provided thereby on BARC property.
[61 FR 51212, Oct. 1, 1996]
Sec. 502.15 Exceptions.
The Administrator, Agricultural Research Service, may in individual
cases, make prior, written exceptions to the rules and regulations in
this part, if a determination is made that the exception is not adverse
to the public interest.
[61 FR 51212, Oct. 1, 1996]
Sec. 502.16 Penalties and other law.
Whoever shall be found guilty of violating the rules and regulations
in this part is subject to fine of not more than $50 or imprisonment of
not more than 30 days, or both (see 40 U.S.C. 318c). Nothing contained
in the rules and regulations in this part shall be construed as
abrogating or authorizing the abrogation of any other regulations or any
Federal law or any laws and regulations of the State of Maryland.
[37 FR 2424, Feb. 1, 1972. Redesignated at 61 FR 51212, Oct. 1, 1996]
PART 503_CONDUCT ON PLUM ISLAND ANIMAL DISEASE CENTER
Sec.
503.1 General.
503.2 Admission.
503.3 Preservation of property.
503.4 Conformity with Plum Island regulations.
503.5 Nuisances.
503.6 Camping, boating, and fishing.
503.7 Gambling.
503.8 Intoxicating beverages and narcotics.
503.9 Soliciting, vending, debt collection, and distribution of
handbills.
503.10 Photographs for news, advertising, commercial purposes or for
personal use.
503.11 Pets.
503.12 Vehicular and pedestrian traffic.
503.13 Weapons and explosives.
503.14 Nondiscrimination.
503.15 Exceptions.
503.16 Penalties and other law.
Authority: Secs. 2, 4, 62 Stat. 281; 40 U.S.C. 318(a), (c); sec.
103, 63 Stat. 380; 40 U.S.C. 486(d); 38 FR 31165 and 38 FR 31166.
Source: 39 FR 36563, Oct. 11, 1974, unless otherwise noted.
Sec. 503.1 General.
The rules and regulations in this part cover the buildings, grounds,
and vessels of the Plum Island Animal Disease Center (PIADC), United
States Department of Agriculture, Orient Point, New York, and apply to
all persons entering in or on such properties both on the mainland,
Orient Point, New York, and on Plum Island. The Administrator,
[[Page 422]]
General Services Administration, has delegated to the Secretary of
Agriculture authority to make all needful rules and regulations, and to
annex to such rules and regulations such reasonable penalties (not to
exceed those prescribed in 40 U.S.C. 318c) as will ensure their
enforcement for the protection of persons and property at Plum Island,
New York. The Secretary of Agriculture has redelegated this authority to
the Assistant Secretary for Conservation, Research, and Education, who
in turn has delegated it to the Administrator, Agricultural Research
Service (38 FR 31166).
Sec. 503.2 Admission.
No person will be admitted to PIADC, into animal holding areas,
specified restricted areas, laboratory compounds, or into laboratories
without having in his or her possession a specific approved pass or
permit authorized by the Director, PIADC, to enter such areas. The pass
must be presented at the request of the guard or other authorized PIADC
safety representative.
Sec. 503.3 Preservation of property.
The willful destruction, damage to or removal of property or any
part thereof from the Government-owned buildings, grounds, and vessels
in or on the PIADC is prohibited.
Sec. 503.4 Conformity with Plum Island regulations.
Persons in and on PIADC shall at all times comply with official
signs of a prohibitory or directory nature and with the directions of
law enforcement or other authorized officials.
Sec. 503.5 Nuisances.
The use of loud, abusive or otherwise improper language, unwarranted
loitering, sleeping or assembly, the creation of any hazard to persons
or things, improper disposal of rubbish, spitting, prurient prying, or
the commission of any obscene or indecent act in or on the PIADC is
prohibited.
Sec. 503.6 Camping, boating, and fishing.
The use of PIADC as a recreational area for camping, boating,
fishing, and picnicking is prohibited. The use of Plum Island beaches
for unauthorized landings and sightseeing is prohibited.
Sec. 503.7 Gambling.
Participating in games for money or other personal property, or the
operation of gambling devices, the conduct of a lottery or pool, or the
selling or purchasing of numbers tickets in or on the PIADC is
prohibited.
Sec. 503.8 Intoxicating beverages and narcotics.
Entering the PIADC or operating a motor vehicle thereon by a person
under the influence of intoxicating beverages or narcotic drugs, or the
consumption of such beverages or the use of such drugs in or on the
PIADC, is prohibited.
Sec. 503.9 Soliciting, vending, debt collection, and distribution of
handbills.
The soliciting of alms and contributions, commercial soliciting and
vending of all kinds, the display or distribution of commercial
advertising, or the collecting of private debts, in or on PIADC is
prohibited. This section does not apply to national or local drives for
funds for welfare, health, and other purposes, sponsored or approved by
the PIADC, or concessions or personal notices posted by employees on
authorized bulletin boards. Unauthorized distribution of materials such
as pamphlets, handbills, and flyers is prohibited.
Sec. 503.10 Photographs for news, advertising, commercial purposes or
for personal use.
Photographs on the PIADC for news, advertising, commercial purposes,
or personal use may be taken only with prior written permission of
Director, PIADC.
Sec. 503.11 Pets.
No pets or animals of any kind may be brought to the PIADC.
Sec. 503.12 Vehicular and pedestrian traffic.
Drivers of all vehicles on the PIADC Government-owned parking areas
in PIADC shall drive in a careful and safe manner at all times and shall
comply with the signals and directions of
[[Page 423]]
guards and all posted traffic signs. Pedestrians will also observe
specific safety directives as may be issued and posted from time to time
by the Director, PIADC, or his authorized representative.
Sec. 503.13 Weapons and explosives.
No person while in or on the PIADC shall carry firearms or other
dangerous or deadly weapons or explosives either openly or concealed,
except when authorized to do so for official purposes by the Director,
PIADC, or his authorized representative.
Sec. 503.14 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against
any person or persons because of race, religion, sex, color, or national
origin in furnishing or refusing to furnish to such person or persons
the use of any facility of a public nature, including all services,
privileges, accommodations and activities provided by the PIADC.
Sec. 503.15 Exceptions.
The Director, PIADC, may, in specific cases, make prior written
exceptions to the rules and regulations in this part if he determines it
to be in the best interest of the Government.
Sec. 503.16 Penalties and other law.
Whoever shall be found guilty of violating any rule or regulation in
this part while in or on the PIADC is subject to a fine of not more than
$50 or imprisonment of not more than 30 days, or both. (See 40 U.S.C.
318c.) Nothing contained in these rules and regulations shall be
construed to abrogate any other Federal laws or regulations, or any
State and local laws and regulations, applicable to the PIADC.
PART 504_USER FEES
Sec.
504.1 General statement.
504.2 Fees for deposit and requisition of microbial cultures.
504.3 Payment of fees.
504.4 Exemptions from user fee charges.
504.5 Address.
Authority: 31 U.S.C. 9701.
Source: 50 FR 5365, Feb. 8, 1985, unless otherwise noted.
Sec. 504.1 General statement.
This part sets forth fees to be charged for the deposit and
distribution of microbial patent cultures. The fees set forth in this
part are applicable to the Agricultural Research Service (ARS) Patent
Culture Collection, Northern Regional Research Center, Peoria, Illinois.
Sec. 504.2 Fees for deposit and requisition of microbial cultures.
(a) Depositors of microbial cultures must pay a one-time $500 user
fee for each culture deposited on or after November 1, 1983.
(b) For cultures deposited on or after November 1, 1983, requesters
must pay a $20 user fee for each culture distributed. Cultures which
were deposited on or after November 1, 1983 have an identification
number greater than 15,722.
Sec. 504.3 Payment of fees.
(a) Payment of user fees must accompany a culture deposit or
request.
(b) Payment shall be made by check, draft, or money order payable to
USDA, National Finance Center.
Sec. 504.4 Exemptions from user fee charges.
(a) USDA laboratories and ARS cooperators designated by the Curator
of the ARS Patent Culture Collection are exempt from fee assessments.
(b) The Curator of the ARS Patent Culture Collection is delegated
the authority to approve and revoke exemptions from fee assessments.
Sec. 504.5 Address.
Deposits of and requests for microbial patent cultures should be
directed to the Curator, ARS Patent Culture Collection, Northern
Regional Research Center, USDA-ARS, 1815 N. University St., Peoria,
Illinois 61604; (309) 685-4011.
PART 505_NATIONAL AGRICULTURAL LIBRARY FEES FOR LOANS AND COPYING
Sec.
505.1 Scope and purpose.
[[Page 424]]
505.2 Fees for loans, copying, and reproduction of materials in library
collections.
505.3-505.5 [Reserved]
505.6 Payment of fees.
Authority: 5 U.S.C. 301; 7 U.S.C. 3125a.
Source: 77 FR 3069, Jan. 23, 2012, unless otherwise noted.
Sec. 505.1 Scope and purpose.
These regulations establish fees for loans, copying, or reproduction
of materials in the collections of the National Agricultural Library
(NAL) within the United States Department of Agriculture (USDA).
Sec. 505.2 Fees for loans, copying, and reproduction of materials in
library collections.
(a) NAL will provide interlibrary loan service (including loans of
original materials from its collections and copies of portions of
documents with copyright compliance) and charge fees for such service to
other non-Federal and non-USDA libraries and institutions. Loans will be
provided within the United States and Canada only. Copies will be
provided within the United States and internationally.
(b) Interlibrary loan service will be provided at a flat fee of $18
per request for libraries paying electronically through the Online
Computer Library Center's (OCLC) Interlibrary Loan Fee Management (IFM)
program and at a flat rate of $25 per request for libraries paying by
other methods.
(c) Cost for replacement of lost or damaged items will be the actual
cost to purchase a replacement plus a $50.00 processing fee; or if
replacement cost cannot be determined, a flat rate of $75.00 for
monographs or $150.00 for audiovisuals per item plus a $50.00 processing
fee.
(d) Photographic services from NAL Special Collections will be
charged at cost for reproduction of the photo product (slides,
transparencies, etc.) plus a preparation fee of $25.00 per half hour or
fraction thereof.
Sec. Sec. 505.3-505.5 [Reserved]
Sec. 505.6 Payment of fees.
NAL charges for interlibrary loans through OCLC's IFM Program (an
electronic debit/credit payment program for libraries using OCLC's
resource sharing service) or by invoice through the National Technical
Information Service (NTIS) of the United States Department of Commerce.
Payment for invoiced services will be made by check, money order, or
credit card in U.S. funds directly to NTIS upon receipt of invoice from
NTIS. NAL encourages users to establish deposit accounts with NTIS for
payment of interlibrary loan fees. Subject to a reduction for the actual
costs of performing the invoicing service by NTIS, all funds will be
returned to NAL for credit to the appropriations account charged with
the cost of processing the interlibrary loan request.
PART 510_PUBLIC INFORMATION
Sec.
510.1 General statement.
510.2 Public inspection, copying, and indexing.
510.3 Requests for records.
510.4 Multitrack processing.
510.5 Denials.
510.6 Appeals.
Authority: 5 U.S.C. 301, 552; 7 CFR part 1, subpart A and appendix A
thereto.
Source: 66 FR 57841, Nov. 19, 2001, unless otherwise noted.
Sec. 510.1 General statement.
This part is issued in accordance with the regulations of the
Secretary of Agriculture in part 1, subpart A of this title and appendix
A thereto, implementing the Freedom of Information Act (FOIA) (5 U.S.C.
552). The Secretary's regulations, as implemented by the regulations in
this part, govern the availability of records of the Agricultural
Research Service (ARS) to the public.
Sec. 510.2 Public inspection, copying, and indexing.
5 U.S.C. 552(a)(2) requires that certain materials be made available
for public inspection and copying and that a current index of these
materials be published quarterly or otherwise be made available. Members
of the public may request access to such materials maintained by ARS at
the following office: Information Staff, ARS, REE, USDA, Room 1-2248,
Mail Stop 5128,
[[Page 425]]
5601 Sunnyside Avenue, Beltsville, MD 20705-5128; Telephone (301) 504-
1640 or (301) 504-1655; TTY-VOICE (301) 504-1743. Office hours are 8
a.m. to 4:30 p.m. Information maintained in our electronic reading room
can be accessed at http://www.ars.usda.gov/is/foia/#Electronic.
Sec. 510.3 Requests for records.
Requests for records of ARS under 5 U.S.C. 552(a)(3) shall be made
in accordance with Subsection 1.5 of this title and submitted to the
FOIA Coordinator, Information Staff, ARS, REE, USDA, Mail Stop 5128,
5601 Sunnyside Avenue, Beltsville, MD 20705-5128; Telephone (301) 504-
1640 or (301) 504-1655; TTY-VOICE (301) 504-1743; Facsimile (301) 504-
1648; e-mail [email protected] or [email protected]. The
FOIA Coordinator is delegated authority to make determinations regarding
such requests in accordance with Subsection 1.3(c) of this title.
Sec. 510.4 Multitrack processing.
(a) When ARS has a significant number of requests, the nature of
which precludes a determination within 20 working days, the requests may
be processed in a multitrack processing system, based on the date of
receipt, the amount of work and time involved in processing the request,
and whether the request qualifies for expedited processing.
(b) ARS may establish as many processing tracks as appropriate;
processing within each track shall be based on a first-in, first-out
concept, and rank-ordered by the date of receipt of the request.
(c) A requester whose request does not qualify for the fastest track
may be given an opportunity to limit the scope of the request in order
to qualify for the fastest track. This multitrack processing system does
not lessen agency responsibility to exercise due diligence in processing
requests in the most expeditious manner possible.
(d) ARS shall process requests in each track on a ``first-in, first-
out'' basis, unless there are unusual circumstances as set forth in
Sec. 1.16 of this title, or the requester is entitled to expedited
processing as set forth in Sec. 1.9 of this title.
Sec. 510.5 Denials.
If the FOIA Coordinator determines that a requested record is exempt
from mandatory disclosure and that discretionary release would be
improper, the FOIA Coordinator shall give written notice of denial in
accordance with Sec. 1.7(a) of this title.
Sec. 510.6 Appeals.
Any person whose request is denied shall have the right to appeal
such denial. Appeals shall be made in accordance with Sec. 1.14 of this
title and should be addressed as follows: Administrator, ARS, U.S.
Department of Agriculture, Washington, DC 20250.
PART 520_PROCEDURES FOR IMPLEMENTING NATIONAL ENVIRONMENTAL POLICY ACT
Sec.
520.1 General statement.
520.2 Definition.
520.3 Policy.
520.4 Responsibilities.
520.5 Categorical exclusions.
520.6 Preparation of an Environmental Assessment (EA).
520.7 Preparation of an Environmental Impact Statement (EIS).
Authority: National Environmental Policy Act (NEPA) as amended, 42
U.S.C. 4321 et seq.; E.O. 11514, 34 FR 4247, as amended by E.O. 11991,
42 FR 26927; E.O. 12144, 44 FR 11957; 5 U.S.C. 301; 40 CFR 1500-1508.
Source: 51 FR 34191, Sept. 25, 1986, unless otherwise noted.
Sec. 520.1 General statement.
These procedures assure that research and other activities of the
Agricultural Research Service (ARS) comply with the intent of the
National Environmental Policy Act of 1969 (NEPA) and appropriate
regulations implementing this Act. These procedures incorporate and
supplement, and are not a substitute for, CEQ regulations under 40 CFR
parts 1500-1508, and Department of Agriculture NEPA Policies and
Procedures under 7 CFR part 1b. ARS conducts and supports research as
authorized by legislation to support one of the USDA goals of assuring
adequate supplies of high quality food and fiber. Information generated
through such research often forms the basic data
[[Page 426]]
needed to assess the impact of a new technology upon the environment.
Large scale projects simulating commercial practices are normally
implemented in cooperation with other agencies of the Federal or State
Governments.
Sec. 520.2 Definition.
Control Agents mean biological material or chemicals which are
intended to enhance the production efficiency of an agricultural crop or
animal such as through elimination of a pest.
Sec. 520.3 Policy.
(a) It is ARS policy to comply with the provisions of NEPA and
related laws and policies.
(b) Environmental documents should be concise, written in plain
language, and address the issues pertinent to the decision being made.
(c) Environmental documents may be substituted or combined with
other reports which serve to facilitate decisionmaking.
(d) Costs of analyses and environmental documents are to be planned
for during the budgetary process for the plan, program, or project.
Special provisions for financing NEPA process activities which are
unanticipated and extraordinary may be made in the Office of the
Administrator of ARS.
(e) ARS personnel will cooperate with other agencies, States,
contractors, or other entities proposing to undertake activities
involving the ARS to assure that NEPA considerations are addressed early
in the planning process to avoid delays and conflicts as required by 40
CFR 1501.2.
(f) For some activities, project participants outside ARS may be
required to provide data and documentation. When an applicant or
contractor prepares an environmental assessment (EA) or a contractor
prepares an environmental impact statement (EIS), the activities shall
be carried out according to 40 CFR 1506.5.
(g) Environmental documents, decision notices, and records of
decision must be made available for review by the public. There shall be
an early and open process for determining the scope of issues to be
addressed in the environmental analysis process (40 CFR 1501.7).
(h) The concepts of tiering to eliminate repetitive discussions
applicable to EIS's (40 CFR part 1502) are also applicable to EA's.
(i) ARS personnel may adopt an existing EA or EIS when a proposed
action is substantially the same as the action for which the existing EA
or EIS was prepared (40 CFR 1506.3 (b)).
(j) ARS personnel may incorporate by reference any existing
documents in order to reduce the bulk of an EA or EIS (40 CFR 1502.21).
(k) After prior consultation with the Council on Environmental
Quality, ARS personnel may forego preparation of an EA or EIS in
emergency situations (40 CFR 1506.11).
Sec. 520.4 Responsibilities.
(a) Administrator. The Administrator is responsible for
environmental analysis and documentation required for compliance with
the provisions of NEPA and related laws, policies, plans, programs, and
projects. The ARS Deputy Administrator for Natural Resources has been
delegated responsibility for the establishment of procedures and
coordination necessary to carry out the policies and provisions of NEPA.
(b) Deputy Administrators and Area Directors. The Deputy
Administrators and Area Directors are responsible to the Administrator
for assuring that ARS programs are in compliance with the policies and
procedures of NEPA.
[51 FR 34191, Sept. 25, 1986, as amended at 77 FR 40250, July 9, 2012]
Sec. 520.5 Categorical exclusions.
For the following categories of actions, the preparation of an EA or
EIS is not required:
(a) Department of Agriculture categorical exclusions (7 CFR 1b.3).
(1) Policy development, planning and implementation which are related to
routine activities such as personnel, organizational changes or similar
administrative functions;
(2) Activities which deal solely with the functions of programs,
such as program budget proposals, disbursement, transfer or
reprogramming of funds;
[[Page 427]]
(3) Inventories, research activities and studies, such as resource
inventories and routine data collection when such actions are clearly
limited in context and intensity;
(4) Educational and information programs and activities;
(5) Activities which are advisory and consultative to other
agencies, public and private entities, and
(6) Activities related to trade representation and market
development activities overseas.
(b) ARS categorical exclusions. ARS actions which, based on previous
experience, have been found to have limited scope and intensity and
produce little or no individual or cumulative impacts to the human
environment. Some examples are:
(1) Repair, replacement of structural components or equipment, or
other routine maintenance of facilities controlled in whole or in part
by ARS;
(2) Research programs or projects of limited size and magnitude or
with only short-term effects on the environment. Examples are:
(i) Research operations conducted within any laboratory, greenhouse
or other contained facility where research practices and safeguards
prevent environment impacts such as the release of hazardous materials
into the environment;
(ii) Inventories, studies or other such activities that have limited
context and minimal intensity in terms of changes in the environment;
(iii) Testing outside of the laboratory, such as in small isolated
field plots, which does not involve the use of control agents requiring
containment or a special license or a permit from a regulatory agency.
(c) Exceptions to categorical exclusions. An environmental
assessment shall be prepared for an activity which is normally within
the purview of categorical exclusion if there are extraordinary
circumstances which may cause such activity to have a significant
environmental effect.
Sec. 520.6 Preparation of an Environmental Assessment (EA).
(a) Actions requiring EA. The following actions would normally
require an EA:
(1) Programs, supported in the majority by ARS, which may assist in
the transition of a particular technology from field evaluation stage to
large-scale demonstration or simulated commercial phase;
(2) Field work having an impact on the local environment such as
earth excavation, explosives, weather modifications, or other such
techniques; and
(3) The testing outside the laboratory, such as small isolated field
plots, of control agents which require containment precautions or either
a special license or a permit from a regulatory agency.
(b) Multiple agencies actions. If more than one Federal agency
participates in a program activity, the EA shall be prepared by the lead
agency as provided in 40 CFR 1501.5.
(c) Format and conclusion. An EA can be in any format provided it
covers in a logical and succinct fashion the information necessary for
determining whether a proposed Federal action may have a significant
environmental impact and thus warrant preparation of an EIS. The EA will
contain the information required by 40 CFR 1508.9. This information will
include brief discussions of the need for the project or other proposal,
alternatives, environmental impacts of the proposed action and
alternatives and a listing of agencies and persons consulted.
(d) Decision notice. Upon completion of an EA, the responsible
official will consider the information it contains, decide whether an
EIS is required or that no significant environmental impact will occur,
and will document the decision and the reasons for it. The decision and
the EA shall be available to the public in a manner appropriate to the
situation. If there is a finding of no significant impact, the EA may be
combined with the decision notice.
Sec. 520.7 Preparation of an Environmental Impact Statement (EIS).
(a) Actions requiring EIS. An EIS will normally be prepared for:
(1) Proposals for legislation which are determined to be a major
Federal action significantly affecting the quality of the human
environment; or,
(2) Other major Federal actions significantly affecting the quality
of the
[[Page 428]]
human environment. In the experience of ARS, an environmental impact
statement shall normally be required in situations when a research
project has advanced beyond the laboratory and small plot testing to
full scale field testing over a very large area and involving the
introduction of control agents.
(b) Notice of intent. If the responsible official recommends the
preparation of an EIS, then the public shall be apprised of the
decision. This notice shall be prepared according to 40 CFR 1508.22.
(c) Draft and final EIS. The process of preparing the draft and
final EIS, as well as the format, shall be according to 40 CFR parts
1502-1506.
(d) Decisionmaking and implementation. The responsible official may
make a decision no sooner than thirty days after the notice of
availability of the final EIS has been published in the Federal Register
by the Environmental Protection Agency (40 CFR 1506.10). The decision
will be documented in a Record of Decision required by 40 CFR 1502.2,
and monitoring and mitigation activities will be implemented as required
by 40 CFR 1505.3.
PART 550_GENERAL ADMINISTRATIVE POLICY FOR NON-ASSISTANCE COOPERATIVE
AGREEMENTS
Subpart A_General
Sec.
550.1 Purpose and scope.
550.2 Definitions.
550.3 Applicability.
550.4 Eligibility.
550.5 Competition.
550.6 Duration.
550.7 Exceptions.
550.8 Conflicting policies and deviations.
550.9 Other applicable regulations.
550.10 Special Award Conditions.
Subpart B_Formation of Agreements
550.11 Purpose.
550.12 Statutory authorization required (REE Agency).
550.13 Mutuality of interest.
550.14 Indirect costs/tuition remission.
550.15 Resource contribution.
550.16 Project development.
550.17 Peer review.
550.18 Assurances/certifications.
Subpart C_Management of Agreements
Financial Management
550.19 Purpose.
550.20 Standards for financial management systems.
550.21 Funding availability.
550.22 Payment.
550.23 Program income.
550.24 Non-Federal audits.
550.25 Allowable costs.
Program Management
550.26 Monitoring program performance.
550.27 Prior approvals.
550.28 Publications and acknowledgement of support.
550.29 Press releases.
550.30 Advertising.
550.31 Questionnaires and survey plans.
550.32 Project supervision and responsibilities.
550.33 Administrative supervision.
550.34 Research misconduct.
550.35 Rules of the workplace.
Equipment/Property Standards
550.36 Purpose of equipment/property standards.
550.37 Title to equipment.
550.38 Equipment.
550.39 Equipment replacement insurance.
550.40 Supplies and other expendable property.
550.41 Federally owned property.
550.42 Intangible property.
Procurement Standards
550.43 Purpose of procurement standards.
550.44 Cooperator responsibilities.
550.45 Standards of conduct.
550.46 Competition.
550.47 Cost and price analysis.
550.48 Procurement records.
550.49 Contract administration.
550.50 Contract provisions.
Reports and Records
550.51 Purpose of reports and records.
550.52 Reporting program performance.
550.53 Financial reporting.
550.54 Invention disclosure and utilization reporting.
550.55 Retention and access requirements for records.
Suspension, Termination and Enforcement
550.56 Purpose of suspension, termination, and enforcement.
550.57 Suspension and termination.
550.58 Enforcement.
Subpart D_Close Out
550.59 Purpose.
[[Page 429]]
550.60 Closeout procedures.
550.61 Subsequent adjustments and continuing responsibilities.
550.62 Collection of amounts due.
Authority: Section 1472(b) of the National Agricultural Research,
Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C.
3318(b)).
Source: 73 FR 54292, Sept. 19, 2008, unless otherwise noted.
Subpart A_General
Sec. 550.1 Purpose and scope.
This part establishes REE-wide standards of USDA's award and
administration of non-assistance cooperative agreements executed under
the authority of Section 1472(b) of the National Agricultural Research,
Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C.
3318(b)). These agreements are neither procurement nor assistance in
nature, and therefore, are not subject to the Federal Grant and
Cooperative Agreements Act of 1977. Accordingly, proper use of these
cooperative agreements will promote and facilitate partnerships between
the REE Agency and the Cooperator in support of research, extension and
education projects of mutual benefit to each party.
Sec. 550.2 Definitions.
Accrued expenditures means the charges incurred by the Cooperator
during a given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subrecipients, and
other payees; and
(3) Other amounts becoming owed under programs for which no current
services or performance is required.
Acquisition cost of equipment means the net invoice price of the
equipment, including the cost of modifications, attachments,
accessories, or auxiliary apparatus necessary to make the property
usable for the purpose for which it was acquired. Other charges, such as
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit
acquisition cost in accordance with the Cooperator's regular accounting
practices.
Advance means a payment made to a Cooperator upon its request either
before outlays are made by the Cooperator or through the use of
predetermined payment schedules.
Authorized Departmental Officer (ADO) means the REE Agency's
official delegated authority to negotiate, award, administer, suspend,
and terminate non-assistance cooperative agreements.
Authorized Departmental Officer's Designated Representative (ADODR)
means the REE Agency's technical representative, acting within the scope
of delegated authority, who is responsible for participating with the
Cooperator in the accomplishment of a cooperative agreement's objectives
and monitoring and evaluating the Cooperator's performance.
Award means a non-assistance cooperative agreement which provides
money or in-kind services or property in lieu of money, to an eligible
Cooperator. The term does not include: Financial assistance awards in
the form of grants, cooperative agreements, loans, loan guarantees,
interest subsidies, or insurance; direct payments of any kind to
individuals; and contracts which are required to be entered into and
administered under procurement laws and regulations.
CFR means the Code of Federal Regulations.
Closeout means the process by which a REE Agency determines that all
applicable administrative actions and all required work under the
agreement has been completed by the Cooperator and REE Agency.
Contract means a procurement contract entered into by the cooperator
or a subcontractor of the cooperator pursuant to the cooperative
agreement.
Cooperator means any State agricultural experiment station, State
cooperative extension service, all colleges and universities, other
research or education institutions and organizations, Federal and
private agencies and organizations, individuals, and any other party,
either foreign or domestic, receiving an award from a REE Agency.
[[Page 430]]
Disallowed costs means those charges incurred under the cooperative
agreement that REE determines to be unallowable, in accordance with the
applicable Federal cost principles or other terms and conditions
contained in the cooperative agreement.
Electronic Funds Transfer (EFT) means electronic payment methods
used to transfer funds to a Cooperator's bank account (including HHS/
PMS).
Equipment means tangible nonexpendable personal property contributed
or acquired by either an REE Agency or by the Cooperator, having a
useful life of more than one year and an acquisition cost of $5000 or
more per unit. However, consistent with Cooperator policy, lower limits
may be established.
Funding period means the period of time when Federal funding is
available for obligation by the Cooperator.
HHS-PMS means the Department of Health and Human Services/Payment
Management System (also see EFT).
i-Edison (Interagency Edison) is a database, which provides Federal
grantee/Cooperator organizations and participating Federal agencies with
the technology to electronically manage extramural invention portfolios
in compliance with Federal reporting requirements.
Intangible property means, trademarks, copyrights, patents and
patent applications.
Obligations means the amounts of orders placed, contracts and grants
awarded, services received and similar transactions during a given
period that require payment by the Cooperator during the same or a
future period.
OMB means the Office of Management and Budget.
Outlays or expenditures means charges made to the project or
program. Outlays and expenditures also include cash disbursements for
direct charges for goods and services, the amount of indirect expense
incurred, the value of in-kind contributions applied, and the net
increase (or decrease) in the amounts owed by the Cooperator for goods
and other property received, for services performed by employees,
contractors, subrecipients, and other payees and other amounts becoming
owed under programs for which no current services or performance are
required.
Peer Review is a process utilized by REE Agencies to:
(1) Determine if agency sponsored research projects have scientific
merit and program relevance;
(2) Provide peer input and make improvements to project design and
technical approaches;
(3) Provide insight on how to conduct the highest quality research
in support of Agency missions and programs.
Personal property means property of any kind except real property.
It may be tangible, having physical existence, or intangible, having no
physical existence, such as copyrights, patents, or securities.
Principle Investigator (PI) means the individual, designated by the
Cooperator, responsible for directing and monitoring the performance,
the day-to-day activities, and the scientific and technical aspects of
the Cooperator's portion of a REE funded project. The PI works jointly
with the ADODR in the development of project objectives and all other
technical and performance related aspects of the program or project. See
additional responsibilities of PI in Sec. 550.32.
Prior approval means written approval by an ADO evidencing prior
consent.
Program income means gross income earned by the Cooperator that is
directly generated by a supported activity or earned as a result of the
award. Program income includes, but is not limited to, income from fees
for services performed, the use or rental of real or personal property
acquired under federally funded projects, the sale of commodities or
items fabricated under an award, and license fees and royalties on
patents and copyrights. Program income does not include the receipt of
principal on loans, rebates, credits, discounts, etc., or interest
earned on any of them, or interest earned on advances of Federal funds.
Project costs means all allowable costs, incurred by the Cooperator
and the REE Agency toward the completion of the project.
Project period means the period established in the cooperative
agreement
[[Page 431]]
during which Federal contributions begin and end.
Property means, unless otherwise stated, personal property,
equipment, intangible property.
Publications mean all types of paper based media including
electronic and audio media.
Real property means land, including land improvements, structures
and appurtenances thereto, but excludes movable machinery and equipment.
REE Agency means the USDA Agency that enters into a cooperative
agreement with the cooperator.
State Cooperative Institutions are defined in statute as
institutions designated or receiving funds pursuant to:
(1) The First Morrill Act--The Land Grant Institutions.
(2) The Second Morrill Act--The 1890 Institutions.
(3) The Hatch Act of 1887--The State Agricultural Experiment
Stations.
(4) The Smith-Lever Act--The State Extension Services.
(5) The McIntire-Stennis Act of 1962--The Cooperating Forestry
Schools.
(6) Public Law 95-113, Section 1430--A college or university having
an accredited college of veterinary medicine or a department of
veterinary science or animal pathology or similar unit conducting animal
health and disease research in a State Agricultural Experiment Station.
(7) Public Law 97-98, Section 1475b--Colleges, universities, and
Federal laboratories having a demonstrated capacity in aquaculture
research.
(8) Public Law 97-98, Section 1480--Colleges, universities, and
Federal laboratories having a demonstrated capacity of rangeland
research.
(9) Equity in Educational Land--Grant Status Act of 1994 (7 U.S.C.
301 note) 1994 Institutions.
Subaward means an award in the form of money or in-kind services or
property in lieu of money, made under an award by a Cooperator to an
eligible subrecipient or by a subrecipient to a lower tier subrecipient.
Subrecipient means the legal entity to which a subaward is made and
which is accountable to the Cooperator for the use of the funds
provided. The term may include foreign or international organizations
(such as agencies of the United Nations) at the discretion of the REE
Agency.
Supplies means all personal property excluding equipment, intangible
property, as defined in this section, and inventions of a contractor
conceived or first actually reduced to practice in the performance of
work under a funding agreement (``subject inventions''), as defined in
37 CFR part 401, ``Rights to Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants, Contracts, and
Cooperative Agreements.''
Suspension means an action by a REE Agency that temporarily
withdraws Federal sponsorship under an award, pending corrective action
by the Cooperator or pending a decision to terminate the award by the
REE Agency. Suspension of an award is a separate action from suspension
under Federal Agency regulations implementing Executive Orders 12549 and
12689, ``Debarment and Suspension.''
Termination means the cancellation of Federal sponsorship, in whole
or in part, under an agreement at any time prior to the date of
completion.
Unliquidated obligations are the amount of obligations incurred by
the Cooperator for which an outlay has not been recorded.
Unobligated balance means the portion of the funds authorized by the
REE Agency that has not been obligated by the Cooperator and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
Unrecovered indirect cost means the difference between the amount
awarded and the amount, which could have been awarded under the
Cooperator's approved negotiated indirect cost rate.
U.S.C. means the United States Code.
USDA means the United States Department of Agriculture.
Sec. 550.3 Applicability.
This part applies to all REE non-assistance cooperative agreements
awarded under the authority of 7 U.S.C. 3318(b).
Sec. 550.4 Eligibility.
REE agencies may enter into non-assistance cooperative agreements
with State agricultural experiment stations,
[[Page 432]]
State cooperative extension services, all colleges and universities,
other research or education institutions and organizations, Federal and
private agencies and organizations, individuals, and any other party,
either foreign or domestic, to further research, extension, or teaching
programs in the food and agricultural sciences. (7 U.S.C. 3318(b)(1)).
Sec. 550.5 Competition.
REE agencies may enter into non-assistance cooperative agreements,
as authorized by this part, without regard to any requirements for
competition. (7 U.S.C. 3318(e)).
Sec. 550.6 Duration.
REE may enter into non-assistance cooperative agreements for a
period not to exceed five years.
Sec. 550.7 Exceptions.
This Part does not apply to:
(a) USDA Federal Financial Assistance agreements subject to 7 CFR
3015, 3016, or 3019.
(b) Procurement contracts or other agreements subject to the Federal
Acquisition Regulation (FAR) or the Agriculture Acquisition Regulation
(AgAR); on Agreements providing loans or insurance directly to an
individual.
Sec. 550.8 Conflicting policies and deviations.
This part supersedes and takes precedence over any individual REE
regulations and directives dealing with the award and administration of
non-assistance cooperative agreements entered into under the delegated
authority of 7 U.S.C. 3318(b). This part may only be superseded, in
whole or in part, by either a specifically worded statutory provision or
a waiver authorized by the USDA-REE-Administrative and Financial
Management (AFM)-Extramural Agreements Division (EAD) or any successor
organization. Responsibility for developing, interpreting, and updating
this part is assigned to the USDA-REE-AFM-EAD or any successor
organization.
Sec. 550.9 Other applicable regulations.
Related issuances are in other parts of the CFR and the U.S.C. as
follows:
(a) 7 CFR Part 3017 ``Governmentwide Debarment and Suspension'';
(b) 7 CFR Part 3018 ``New Restrictions on Lobbying'';
(c) 7 CFR Part 3052 ``Audits of States, Local Governments, and
Nonprofit Organizations'';
(d) 7 CFR 3015.175 (b) ``Copyrights'';
(e) 37 CFR 401.14 ``Standard Patent Rights Clause'';
(f) 15 U.S.C. 205a et seq. ``The Metric Conversion Act, as amended
by the Omnibus Trade and Competitiveness Act'';
(g) 42 U.S.C. 6962 ``Resource Conservation and Recovery Act
(RCRA)''.
Sec. 550.10 Special Award Conditions.
(a) REE Agencies may impose special conditions and/or additional
requirements to a non-assistance agreement if a Cooperator:
(1) Has a history of poor performance,
(2) Is not financially stable,
(3) Has a management system that does not meet the standards
prescribed in this Part,
(4) Has not conformed to the terms and conditions of a previous
award, or
(5) Is not otherwise responsible.
(b) Special conditions and/or additional requirements may be added
to an award provided that the Cooperator is notified in writing as to:
the nature of the additional requirements, the reason why the additional
requirements are being imposed, the nature of the corrective action
needed, the time allowed for completing the corrective actions, and the
method for requesting reconsideration of the additional requirements
imposed. Any special conditions shall be promptly removed once the
conditions that prompted them have been corrected.
Subpart B_Formation of Agreements
Sec. 550.11 Purpose.
Sections 550.12 through 550.18 prescribe instructions and other pre-
award matters to be used in establishing a non-assistance cooperative
agreement.
Sec. 550.12 Statutory authorization required (REE Agency).
REE Agencies must have programmatic statutory authority for the
[[Page 433]]
proposed project prior to entering into any non-assistance cooperative
agreement.
Sec. 550.13 Mutuality of interest.
The REE Agency shall document both parties interest in the project.
Mutual interest exists when both parties benefit in the same qualitative
way from the objectives of the agreement. If one party to the agreement
would independently have an interest in the project, which is shared by
the other party, and both parties pool resources to obtain the end
result of the project, mutual interest exists.
Sec. 550.14 Indirect cost/tuition remission.
(a) Indirect cost--(1) State Cooperative Institutions. Payment of
indirect costs to State Cooperative Institutions in connection with non-
assistance cooperative agreements awarded under the authority of 7
U.S.C. 3318(b) is prohibited. This prohibition does not apply to funds
for international agricultural programs conducted by a State cooperative
institution and administered by the Secretary or to funds provided by a
Federal agency for such cooperative program or project through a fund
transfer, advance or reimbursement. (7 U.S.C. 3319.)
(2) Non-profit organizations. Payment of indirect costs to non-
profit institutions in connection with USDA cooperative agreement, under
the authority of 7 U.S.C. 3318(b), is limited to 10 percent of the total
direct cost of the project. (Annual Appropriations Bill for Agriculture
and Related agencies, General Provisions.)
(3) All other cooperating organizations. With the exception of
paragraphs (a)(1) and (2) of this section, payment of indirect costs is
allowable in connection with REE non-assistance cooperative agreements.
Reimbursement of indirect costs is limited to the percentage(s)
established in the Cooperator's negotiated indirect cost rate schedule.
(4) In any case, the REE Agency shall not reimburse indirect costs
prior to receipt of the Cooperator's negotiated indirect cost rate
schedule.
(b) Tuition remission--(1) State Cooperative Institutions.
Reimbursement of tuition expenses to State Cooperative Institutions in
connection with REE non-assistance cooperative agreements is prohibited.
(7 U.S.C. 3319)
(2) All other cooperating organizations. Except for paragraph (b)(1)
of this section, tuition remission is an allowable expense as determined
in accordance with the cost principles applicable to the Cooperator. REE
agencies shall negotiate and approve such payments as related to the
scope and objectives of the non-assistance agreement.
Sec. 550.15 Resource contribution.
Each party must contribute resources towards the successful
completion of the project. Required resource contributions must be
substantial enough to substantiate a true stake in the project as
determined by the ADO.
(a) REE Agency's contribution. The REE Agency's contribution must
consist of the total in-house costs to the REE Agency and the total
amount to be reimbursed by the REE Agency to the Cooperator for all
allowable costs agreed to in advance as reflected in the cooperative
agreement.
(b) Cooperator's contribution. (1) The Cooperator's contribution
must be no less than 20 percent of the total of the resource
contributions under the cooperative agreement. Resource contributions of
the Cooperator must consist of a sufficient amount of itemized direct
costs to substantiate a true stake in the project as determined by the
ADO. The Cooperator's contribution must be maintained at 20 percent of
Federal funding throughout the life of the cooperative agreement.
(2) Cooperators share of contributions may consist of ``in-kind''
contributions and may also include unrecoverable indirect costs. Such
costs may be accepted as part of the Cooperator's resource contribution
when all of the following criteria are met:
(i) Costs are verifiable from the Cooperator's records.
(ii) Costs are not included as contributions for any other federally
assisted project or program.
(iii) Costs are necessary and reasonable for proper and efficient
accomplishment of project or program objectives.
(iv) Costs are allowable under the applicable cost principles.
[[Page 434]]
(v) Costs are not paid by the Federal Government under another
award, except where authorized by Federal statute to be used for cost
sharing or matching.
(vi) Costs conform to other provisions of this Part, as applicable.
(3) Volunteer services furnished by professional and technical
personnel, consultants, and other skilled and unskilled labor may be
counted as resource contributions if the service is an integral and
necessary part of an approved project or program. Rates for volunteer
services shall be consistent with those paid for similar work in the
Cooperator's organization. In those instances in which the required
skills are not found in the Cooperator organization, rates shall be
consistent with those paid for similar work in the labor market in which
the Cooperator competes for the kind of services involved. In either
case, paid fringe benefits that are reasonable, allowable, and allocable
may be included in the valuation.
(4) When an employer other than the Cooperator furnishes the
services of an employee, these services shall be valued at the
employee's regular rate of pay (plus an amount of fringe benefits that
are reasonable, allowable, and allocable, but exclusive of overhead
costs), provided these services are in the same skill for which the
employee is normally paid.
(5) Donated supplies may include such items as expendable equipment,
office supplies, laboratory supplies or workshop and classroom supplies.
Value assessed to donated supplies included in the cost sharing or
matching share shall be reasonable and shall not exceed the fair market
value of the property at the time of the donation.
(6) The value of donated property shall be determined in accordance
with the usual accounting policies of the Cooperator, with the following
qualifications.
(i) The value of donated land and buildings shall not exceed its
fair market value at the time of donation to the Cooperator as
established by an independent appraiser (e.g., certified real property
appraiser or General Services Administration representative) and
certified by a responsible official of the Cooperator.
(ii) The value of donated equipment shall not exceed the fair market
value of equipment of the same age and condition at the time of
donation.
(iii) The value of donated space shall not exceed the fair rental
value of comparable space as established by an independent appraisal of
comparable space and facilities in a privately owned building in the
same locality.
(iv) The value of loaned equipment shall not exceed its fair rental
value.
(v) The following requirements pertain to the Cooperator's
supporting records for in-kind contributions from third parties.
(A) Volunteer services shall be documented and, to the extent
feasible, supported by the same methods used by the Cooperator for its
own employees.
(B) The basis for determining the valuation for personal service,
material, equipment, buildings, and land shall be documented.
Sec. 550.16 Project development.
REE provides partial funding to Cooperators to support research
projects that contribute to REE program objectives and help carry out
the REE mission. The Cooperator's PI and the REE Agency's ADODR shall
jointly develop the following documentation:
(a) Project plan. A plan that shall be jointly developed by the REE
ADODR and the Cooperator that is compliant with an REE program
requirement. The project plan will utilize the REE provided format for
external peer review.
(b) Statement of work. A detailed statement of work shall be jointly
planned, developed and prepared by the Cooperator's PI and the awarding
Agency's ADODR consisting of the following:
(1) Objective
(2) Approach
(3) Statement of Mutual Interest
(4) Performance Responsibilities
(5) Mutual Agreements
(c) Budget. A plan that shall be jointly developed by the REE ADODR
and the Cooperator PI outlining the following resource contributions:
(1) Total amount to be reimbursed by the REE Agency to the
Cooperator. (Direct and Indirect Costs as applicable)
[[Page 435]]
(2) Total in-house costs to the REE Agency. (Direct and indirect
costs)
(3) Total in-house costs to the Cooperator. (Direct and indirect
costs)
Sec. 550.17 Peer review.
Upon request of the REE Agency, cooperators may be requested to
provide documentation in support of peer review activities and
cooperator personnel may be requested to participate in peer review
forums to assist the REE Agency in their reviews.
Sec. 550.18 Assurances/certifications.
(a) Governmentwide Debarment and Suspension (Non procurement)--7 CFR
3017;
(b) Governmentwide requirements for Drug-Free Workplace--7 CFR 3021;
(c) Non-discrimination. The Cooperator assures compliance with the
following requirement: No person in the United States shall, on the
grounds of race, color, national origin, sex, age, religion, political
beliefs, or disability, be excluded from participation in, be denied the
benefits of, or be otherwise subjected to discrimination under any
project or activity under a non-assistance cooperative agreement.
(d) Protection of human subjects requirements. The Cooperator
assures compliance with the following provisions regarding the rights
and welfare of human subjects:
(1) The Cooperator is responsible for safeguarding the rights and
welfare of any human subjects involved in research, development, and
related activities supported by this Agreement. The Cooperator may
conduct research involving human subjects only as prescribed in the
statement of work and as approved by the Cooperator's Cognizant
Institutional Review Board. Prior to conducting such research, the
Cooperator shall obtain and document a legally sufficient informed
consent from each human subject involved. No such informed consent shall
include any exculpatory language through which the subject is made to
waive, or to appear to waive, any of his or her legal rights, including
any release of the Cooperator or its agents from liability for
negligence.
(2) The Cooperator agrees to comply with U.S. Department of Health
and Human Services' regulations regarding human subjects, appearing in
45 CFR part 46 (as amended).
(3) It will comply with REE policy, which is to assure that the
risks do not outweigh either potential benefits to the subjects or the
expected value of the knowledge sought.
(4) Selection of subject or groups of subjects shall be made without
regard to sex, race, color, religion, or national origin unless these
characteristics are factors to be studied.
(e) Animal Welfare Act requirements. The Cooperator assures
compliance with the Animal Welfare Act, as amended, 7 U.S.C. 2131, et
seq., and the regulations promulgated thereunder by the Secretary of
Agriculture (9 CFR, subchapter A) pertaining to the care, handling, and
treatment of warm-blooded animals held or used for research, teaching,
or other activities supported by Federal funds. The Cooperator may
request registration of facilities and a current listing of licensed
dealers from the Regional Office of the Animal and Plant Health
Inspection Service (APHIS), USDA, for the Region in which their facility
is located. The location of the appropriate APHIS Regional Office, as
well as information concerning this requirement, may be obtained by
contacting the Senior Staff Officer, Animal Care Staff, USDA/APHIS,4700
River Road, Riverdale, Maryland 20737.
(f) Recombinant DNA research requirements. The Cooperator assures
that it will assume primary responsibility for implementing proper
conduct on recombinant DNA research and it will comply with the National
Institute of Health Guidelines for Recombinant DNA Research, as revised.
(1) If the Cooperator wishes to send or receive registered
recombinant DNA material which is subject to quarantine laws, permits to
transfer this material into the U.S. or across state lines may be
obtained by contacting USDA/APHIS/PPQ, Scientific Services--
Biotechnology Permits, 4700 River Road, Unit 133, Riverdale, Maryland
20737. In the event that the Cooperator has not established the
necessary biosafety committee, a request for guidance or assistance may
be made to the USDA Recombinant DNA Research Officer.
[[Page 436]]
(2) [Reserved]
(g) Agriculture Bioterrorism Protection Act requirements. The
Cooperator assures compliance with the Agriculture Bioterrorism
Protection Act of 2002, as implemented at 7 CFR part 331 and 9 CFR part
121, by agreeing that it will not possess, use, or transfer any select
agent or toxin without a certificate of registration issued by the
Agency.
Subpart C_Management of Agreements
Financial Management
Sec. 550.19 Purpose.
Sections 550.20 through 550.25 of this subpart prescribe standards
for financial management systems and program management requirements.
Sec. 550.20 Standards for financial management systems.
(a) REE agencies shall require Cooperators to relate financial data
to performance data.
(b) Cooperators' financial management systems shall provide for the
following:
(1) Accurate, current, and complete disclosure of the financial
results of each REE sponsored project or program in accordance with the
reporting requirements set forth in Sec. 550.53 of this part. REE
requires financial reporting on an accrual basis; however, the
Cooperator shall not be required to establish an accrual accounting
system. These Cooperators shall develop such accrual data through best
estimate for their reports on the basis of an analysis of the
documentation on hand.
(2) Records that identify the source and application of funds for
federally sponsored activities. These records shall contain information
pertaining to Federal awards, authorizations, obligations, unobligated
balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds,
property and other assets. Cooperators shall adequately safeguard all
such assets and assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award.
Whenever appropriate, financial information should be related to
performance and unit cost data.
(5) Written procedures to minimize the time elapsing between the
transfer of funds to the Cooperator from the U.S. Treasury and the
issuance or redemption of a check, warrant or payment by other means for
program purposes by the Cooperator. To the extent that the provisions of
the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern,
payment methods of State agencies, instrumentalities, and fiscal agents
shall be consistent with CMIA Treasury-State Agreements or the CMIA
default procedures codified at 31 CFR part 205, ``Rules and procedures
for efficient Federal State funds transfer.''
(6) Written procedures for determining the reasonableness,
allocability and allowability of costs in accordance with the provisions
of the applicable Federal cost principles and the terms and conditions
of the award.
(7) Accounting records including cost accounting records that are
supported by source documentation.
(c) Where bonds are required in the situations described above, the
bonds shall be obtained from companies holding certificates of authority
as acceptable sureties, as prescribed in31 CFR part 223, ``Surety
Companies Doing Business with the United States.''
Sec. 550.21 Funding availability.
The funding period will begin on the date of final signature, unless
otherwise stated on the agreement, and continue for the project period
specified on the cover page of the cooperative agreement.
Sec. 550.22 Payment.
(a) Payment methods shall minimize the time elapsing between the
transfer of funds from the U.S. Treasury and the issuance or redemption
of a check, warrant, or payment by other means by the Cooperators.
Payment methods of State agencies or instrumentalities shall be
consistent with Treasury-State CMIA agreements or default procedures
codified at 31 CFR part 205.
(b) Reimbursement is the preferred method of payment. All payments
to the Cooperator shall be made via EFT.
[[Page 437]]
(1) When the reimbursement method is used, the REE Agency shall make
payment within 30 days after receipt of the billing, unless the billing
is improper.
(2) Cooperators shall be authorized to submit requests for payment
not more than quarterly and not less frequently than annually.
(3) Content of Invoice.
At a minimum, the Cooperator's invoice shall state the following:
(i) The name and address of the Cooperator;
(ii) The name and address of the PI;
(iii) The name and address of the financial officer to whom payments
shall be sent;
(iv) A reference to the cooperative agreement number;
(v) The invoice date;
(vi) The time period covered by the invoice; and
(vii) Total dollar amount itemized by budget categories (labor,
direct costs, and indirect costs, etc.).
(4) To facilitate the EFT process, the Cooperator shall provide the
following information:
(i) The name, addresses, and telephone number of the financial
institution receiving payment;
(ii) The routing transit number of the financial institution
receiving payment;
(iii) The account to which funds are to be deposited; and
(iv) The type of depositor account (checking or savings).
(c) If the REE Agency has determined that reimbursement is not
feasible because the Cooperator lacks sufficient working capital, the
REE Agency may provide cash on an advance basis provided the Cooperator
maintains or demonstrates the willingness to maintain: Written
procedures that minimize the time elapsing between the transfer of funds
and disbursement by the Cooperator, and financial management systems
that meet the standards for fund control and accountability as
established in Sec. 550.20. Under this procedure, the REE Agency shall
advance cash to the Cooperator to cover its estimated disbursement needs
for an initial period. The timing and amount of cash advances shall be
as close as is administratively feasible to the actual disbursements by
the Cooperator organization for direct program or project costs and the
proportionate share of any allowable indirect costs.
(1) Advance payment mechanisms include, but are not limited to,
Treasury check and electronic funds transfer.
(2) Advance payment mechanisms are subject to the requirements of 31
CFR part 205.
(3) Requests for advance payment shall be submitted on SF-270,
``Request for Advance or Reimbursement.'' This form is not to be used
when advance payments are made to the Cooperator automatically through
the use of a predetermined payment schedule or if precluded by special
REE Agency instructions for electronic funds transfer.
(4) Cooperators shall maintain advances of Federal funds in interest
bearing accounts, unless Sec. 550.22(c)(4)(i), (ii), or (iii) applies.
(i) The Cooperator receives less than $120,000 in Federal awards per
year.
(ii) The best reasonably available interest bearing account would
not be expected to earn interest in excess of $250 per year on Federal
cash balances.
(iii) The depository would require an average or minimum balance so
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
(5) For those entities where CMIA and its implementing regulations
do not apply, interest earned on Federal advances deposited in interest
bearing accounts shall be remitted annually to Department of Health and
Human Services, Payment Management System, Rockville, MD 20852. The
Cooperator for administrative expense may retain interest amounts up to
$250 per year. State universities and hospitals shall comply with CMIA,
as it pertains to interest. If an entity subject to CMIA uses its own
funds to pay pre-award costs for discretionary awards without prior
written approval from the REE Agency, it waives its right to recover the
interest under CMIA. Thereafter, the REE Agency shall reimburse the
Cooperator for its actual cash disbursements.
(6) Whenever possible, advances shall be consolidated to cover
anticipated cash needs for all awards made by the REE Agency to the
Cooperator. The
[[Page 438]]
working capital advance method of payment shall not be used for
Cooperators unwilling or unable to provide timely advances to their
subrecipient to meet the subrecipient's actual cash disbursements.
(d) To the extent available, Cooperators shall disburse funds
available from repayments to and interest earned on program income,
rebates, refunds, contract settlements, audit recoveries and interest
earned on such funds before requesting additional cash payments.
(e) Unless otherwise required by statute, REE Agencies shall not
withhold payments for proper charges made by Cooperators at any time
during the project period unless the conditions of paragraphs (e)(1) or
(2) of this section apply.
(1) A Cooperator has failed to comply with the project objectives,
the terms and conditions of the award, or REE reporting requirements.
(2) The Cooperator owes a debt to the United States which is subject
to offset pursuant to 7 CFR part 3 and Federal Clause Collection
Standard; 31 CFR parts 901 through 904.
(f) Standards governing the use of banks and other institutions as
depositories of funds advanced or reimbursed under awards are as
follows:
(1) Except for situations described in Sec. 550.22(f)(2), REE
Agencies shall not require separate depository accounts for funds
provided to a Cooperator or establish any eligibility requirements for
depositories for funds provided to a Cooperator. However, Cooperators
must be able to account for the receipt, obligation and expenditure of
funds.
(2) Advances of Federal funds shall be deposited and maintained in
insured accounts whenever possible.
Sec. 550.23 Program income.
(a) REE Agencies shall apply the standards set forth in this section
in requiring Cooperator organizations to account for program income
related to projects financed in whole or in part with Federal funds.
(b) Except as provided in Sec. 550.23(f), program income earned
during the project period shall be retained by the Cooperator and shall
be added to funds committed to the project by the REE Agency and
Cooperator and used to further eligible project or program objectives.
(c) Cooperators shall have no obligation to the Federal Government
regarding program income earned after the end of the project period.
(d) Costs incident to the generation of program income may be
deducted from gross income to determine program income, provided these
costs have not been charged to the award.
(e) Proceeds from the sale of property shall be handled in
accordance with the requirements of the Property Standards (See
Sec. Sec. 550.36 through 550.42).
(f) Cooperators shall have no obligation to the Federal Government
with respect to program income earned from license fees and royalties
for copyrighted material, patents, patent applications, trademarks, and
inventions produced under an award. However, Patent and Trademark
Amendments (35 U.S.C. Chapter 25) apply to inventions made under an
experimental, developmental, or research award.
Sec. 550.24 Non-Federal audits.
(a) Cooperators and subrecipients that are institutions of higher
education or other non-profit organizations (including hospitals) shall
be subject to the audit requirements contained in the Single Audit Act
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133,
``Audits of States, Local Governments, and Non-Profit Organizations.''
(b) State and local governments shall be subject to the audit
requirements contained in the Single Audit Act Amendments of 1996 (31
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States,
Local Governments, and Non-Profit Organizations.''
(c) For-profit hospitals not covered by the audit provisions of
revised OMB Circular A-133 shall be subject to the audit requirements of
the REE agencies.
(d) Commercial organizations shall be subject to the audit
requirements of the REE Agency or the prime recipient as incorporated
into the award document.
[[Page 439]]
Sec. 550.25 Allowable costs.
For each kind of Cooperator, there is a set of Federal principles
for determining allowable costs. Allowability of costs shall be
determined in accordance with the cost principles applicable to the
entity incurring the costs. Thus, allowability of costs incurred by
State, local or federally recognized Indian tribal governments is
determined in accordance with the provisions of OMB Circular A-87,
``Cost Principles for State, Local, and Indian Tribal Governments''
codified at 2 CFR part 225. The allowability of costs incurred by non-
profit organizations is determined in accordance with the provisions of
OMB Circular A-122, ``Cost Principles for Non-Profit Organizations''
codified at 2 CFR part 230. The allowability of costs incurred by
institutions of higher education is determined in accordance with the
provisions of OMB Circular A-21, ``Cost Principles for Educational
Institutions'' codified at 2 CFR 220. The allowability of costs incurred
by hospitals is determined in accordance with the provisions of subpart
E of 45 CFR part 74. The allowability of costs incurred by commercial
organizations and those non-profit organizations listed in appendix C to
Circular A-122 (2 CFR part 230) is determined in accordance with the
contract cost principles and procedures of the Federal Acquisition
Regulation (FAR) at 48 CFR part 31.
Program Management
Sec. 550.26 Monitoring program performance.
(a) Cooperators are responsible for managing the day-to-day
operations of REE nonassistance awards using their established controls
and policies, as long as they are consistent with REE requirements.
However, in order to fulfill their role in regard to the stewardship of
Federal funds, REE Agencies monitor their agreements to identify
potential problems and areas where technical assistance might be
necessary. This active monitoring is accomplished through review of
reports and correspondence from the cooperator, audit reports, site
visits, and other information available to the REE Agency. It is the
responsibility of the Cooperator to ensure that the project is being
performed in compliance with the terms and conditions of the award.
(b) Monitoring of a project or activity will continue for as long as
the REE Agency retains a financial interest in the project or activity.
REE agencies reserve the right to monitor a project after it has been
administratively closed out and no longer providing active support in
order to resolve issues of accountability and other administrative
requirements. Additional requirements regarding reporting and program
performance can be found in Sec. Sec. 550.51 through 550.55 of this
part.
(c) The REE Agency reserves the right to perform site visits at
Cooperator locations. Access to project or program records shall be
provided in accordance with the provisions of Sec. 550.55.
Sec. 550.27 Prior approvals.
(a) The budget is the financial expression of the project or program
as approved during the award process. REE agencies require that all
Federal costs be itemized on the approved budget. The budget shall be
related to performance for program evaluation purposes.
(b) Cooperators are required to report deviations from budget and
program plans, and request prior approvals for budget and program plan
revisions.
(c) Cooperators shall request prior approvals from REE Agencies for
one or more of the following program or budget related reasons.
(1) Incur pre-award costs up to 90 days prior to award date. All
pre-award costs are incurred at the Cooperator's risk (i.e., the REE
Agency is under no obligation to reimburse such costs if for any reason
the Cooperator does not receive an award or if the award is less than
anticipated and inadequate to cover such costs).
(2) Change in the scope or the objective of the project or program
(even if there is no associated budget revision requiring prior written
approval).
(3) The absence for more than three months, or a 25 percent
reduction in time devoted to the project, by the approved project
director or principal investigator.
[[Page 440]]
(4) Extensions of time, within statutory limitations, to complete
project objectives. This extension may not be requested merely for the
purpose of using unobligated balances. The Cooperator shall request the
extension in writing with supporting reasons.
(5) The transfer of amounts budgeted for indirect costs to absorb
increases in direct costs, or vice versa.
(6) The inclusion of costs that require prior approval in accordance
with OMB Circular A-21, ``Cost Principles for Educational
Institutions,'' (2 CFR part 220), OMB Circular A-122, ``Cost Principles
for Non-Profit Organizations'' (2 CFR part 230) or 45 CFR part 74
appendix E, or 48 CFR part 31, ``Contract Cost Principles and
Procedures,'' as applicable.
(7) Unless described in the agreement and funded in the approved
awards, the subaward, transfer or contracting out of any work under an
award. This provision does not apply to the purchase of supplies,
material, equipment or general support services.
(d) When requesting approval for budget revisions, Cooperators shall
use the budget form used in the cooperative agreement.
(e) Within 30 calendar days from the date of receipt of the request
for budget revisions, the ADO shall review the request and notify the
Cooperator whether the budget revisions have been approved.
Sec. 550.28 Publications and acknowledgment of support.
(a) Publications. REE Agencies and the Federal Government shall
enjoy a royalty-free, nonexclusive, and irrevocable right to reproduce,
publish or otherwise use, and to authorize others to use, any materials
developed in conjunction with a nonassistance cooperative agreement or
contract under such an agreement.
(b)(1) Cooperators shall acknowledge ARS, Economics Research Service
(ERS), National Agricultural Statistics Service (NASS), and the National
Institute of Food and Agriculture (NIFA) support, whether cash or in-
kind, in any publications written or published with Federal support and,
if feasible, on any publication reporting the results of, or describing,
a Federally supported activity as follows:
``This material is based upon work supported by the U.S. Department
of Agriculture, ---- (insert Agency name) ---- under Agreement No.
(Cooperator should enter the applicable agreement number here).''
(2) All such material must also contain the following disclaimer
unless the publication is formally cleared by the awarding agency:
``Any opinions, findings, conclusion, or recommendations expressed
in this publication are those of the author(s) and do not necessarily
reflect the view of the U.S. Department of Agriculture.''
(3) Any public or technical information related to work carried out
under a non assistance cooperative agreement shall be submitted by the
developing party to the other for advice and comment. Information
released to the public shall describe the contributions of both parties
to the work effort. In the event of a dispute, a separate publication
may be made with effective statements of acknowledgment and disclaimer.
(c) Media. Cooperators shall acknowledge awarding Agency support, as
indicated in Sec. 550.28(b) above, in any form of media (print, DVD,
audio production, etc.) produced with Federal support that has a direct
production cost to the Cooperator of over $5,000. Unless the terms of
the Federal award provide otherwise, this requirement does not apply to:
(1) Media produced under mandatory or formula grants or under sub
awards.
(2) Media produced as research instruments or for documenting
experimentation or findings and intended for presentation or
distribution to a USDA/REE audience.
[73 FR 54292, Sept. 19, 2008, as amended at 76 FR 4805, Jan. 27, 2011]
Sec. 550.29 Press releases.
Press releases or other forms of public notification will be
submitted to the REE agency for review prior to release to the public.
The REE Agency will be given the opportunity to review, in advance, all
written press releases and any other written information to be released
to the public by the
[[Page 441]]
Cooperator, and require changes as deemed necessary, if the material
mentions by name the REE Agency or the USDA, or any USDA employee or
research unit or location.
Sec. 550.30 Advertising.
The Cooperator will not refer in any manner to the USDA or agencies
thereof in connection with the use of the results of the project without
prior specific written authorization by the awarding Agency. Information
obtained as a result of the project will be made available to the public
in printed or other forms by the awarding Agency at its discretion. The
Cooperator will be given due credit for its cooperation in the project.
Prior approval is required.
Sec. 550.31 Questionnaires and survey plans.
The Cooperator is required to submit to the REE Agency copies of
questionnaires and other forms for clearance in accordance with the
Paperwork Reduction Act of 1980 and 5 CFR part 1320.
Sec. 550.32 Project supervision and responsibilities.
(a) The Cooperator is responsible and accountable for the
performance and conduct of all Cooperator employees assigned to the
project. The REE Agency does not have authority to supervise Cooperator
employees or engage in the employer employee relationship.
(b) The PI shall:
(1) Work jointly with the ADODR in the development of the project
statement of work;
(2) Work jointly with the ADODR in the development of the project
budget;
(3) Report, and obtain approval for, any change in the project
budget;
(4) Report, and obtain approval for, any change in the scope or
objectives of the project;
(5) Assure that technical project performance and financial status
reports are submitted on a timely basis in accordance with the terms and
conditions of the award;
(6) Advise the ADODR of any issues that may affect the timely
completion of the project;
(7) Assure that the Cooperator meets its commitments under the terms
and conditions of the non-assistance agreement;
(8) Assure that appropriate acknowledgements of support are included
in all publications, in accordance with Sec. 550.28 of this part.
(9) Assure that inventions are appropriately reported in accordance
with Sec. 550.54 of this part; and
(10) Upon request, provide the REE Agency with a project plan for
use for external peer review.
Sec. 550.33 Administrative supervision.
REE employees are prohibited from engaging in matters related to
cooperator employer/employee relations such as personnel, performance
and time management issues. The cooperator is solely responsible for the
administrative supervision of its employees.
Sec. 550.34 Research misconduct.
(a) The Cooperator bears the primary responsibility for prevention
and detection of research misconduct and for the inquiry, investigation
and adjudication of research misconduct alleged to have occurred in
association with their own institution.
(b) The Cooperator shall:
(1) maintain procedures for responding to allegations or instances
of research misconduct that has the following components:
(i) Objectivity;
(ii) Due process;
(iii) Whistle blower protection;
(iv) Confidentiality;
(v) Timely resolution;
(2) Promptly conduct an inquiry into any allegation of research
misconduct;
(3) Conduct an investigation if an inquiry determines that the
allegation or apparent instance of research misconduct has substance;
(4) Provide appropriate separation of responsibilities between those
responsible for inquiry and investigation, and those responsible for
adjudication;
(5) Advise REE Agency of outcome at end of inquiries and
investigations into allegations or instances of research misconduct; and
(6) Upon request, provide the REE Agency, upon request, hard copy
(or website address) of their policies and
[[Page 442]]
procedures related to research misconduct.
(c) Research misconduct or allegations of research misconduct shall
be reported to the USDA Research Integrity Officer (RIO) and/or to the
USDA, Office of Inspector General (OIG) Hotline.
(1) The USDA RIO can be reached at: USDA Research Integrity Officer,
214-W Whitten Building, Washington, DC 20250, Telephone: 202-720-5923,
Email: [email protected].
(2) The USDA OIG Hotline can be reached on: 1-800-424-9121.
Sec. 550.35 Rules of the workplace.
Cooperator employees, while engaged in work at the REE Agency's
facilities, will abide by the Agency's standard operating procedures
regarding the maintenance of laboratory notebooks, dissemination of
information, equipment operation standards, hours of work, conduct, and
other incidental matters stated in the rules and regulations of the
Agency.
Equipment/Property Standards
Sec. 550.36 Purpose of equipment/property standards.
Sections 550.37 through 550.42 of this part set forth uniform
standards governing management and disposition of property furnished by
the Federal Government or acquired by the Cooperator with funds provided
by the Federal Government. The Cooperator may use its own property
management standards and procedures provided it observes other
applicable provisions of this Part.
Sec. 550.37 Title to equipment.
(a) As authorized by 7 U.S.C. 3318(d), title to expendable and
nonexpendable equipment, supplies, and other tangible personal property
purchased with Federal funding in connection with a non assistance
cooperative agreement shall vest in the Cooperator from date of
acquisition unless otherwise stated in the cooperative agreement.
(b) Notwithstanding any other provision of this rule the REE Agency
may, at its discretion, retain title to equipment described in paragraph
(a) of this section that is or may be purchased with Federal funds when
the REE agency determines that it is in the best interest of the Federal
Government.
Sec. 550.38 Equipment.
(a) The Cooperator shall not use equipment acquired with Federal
funds to provide services to non-Federal outside organizations for a fee
that is less than private companies charge for equivalent services,
unless specifically authorized by Federal statute, for as long as the
Federal Government retains an interest in the equipment.
(b) The Cooperator shall use the equipment in the project or program
for which it was acquired as long as needed, whether or not the project
or program continues to be supported by Federal funds and shall not
encumber the property without approval of the REE Agency. When no longer
needed for the original project or program, the Cooperator shall use the
equipment in connection with its other federally-sponsored activities,
in the following order of priority:
(1) Activities sponsored by the REE Agency which funded the original
project, then
(2) Activities sponsored by other Federal awarding agencies.
(c) During the time that equipment is used on the project or program
for which it was acquired, the Cooperator shall make it available for
use on other projects or programs if such other use will not interfere
with the work on the project or program for which the equipment was
originally acquired as may be determined by the REE Agency. First
preference for such other use shall be given to other projects or
programs sponsored by the REE Agency that financed the equipment; second
preference shall be given to projects or programs sponsored by other
Federal awarding agencies. If equipment is owned by the Federal
Government, use on other activities not sponsored by the Federal
Government shall be permissible if authorized by the REE Agency. User
charges shall be treated as program income.
(d) When acquiring replacement equipment, unless otherwise directed
by the REE Agency, the Cooperator shall use the equipment to be replaced
as trade-in or sell the equipment and
[[Page 443]]
use the proceeds to offset the costs of the replacement equipment
subject to the approval of the REE Agency.
(e) The Cooperator's property management standards for equipment
acquired with Federal funds and federally owned equipment shall include
all of the following.
(1) Equipment records shall be maintained accurately and shall
include the following information:
(i) A description of the equipment;
(ii) Manufacturer's serial number, model number, Federal stock
number, national stock number, or other identification number;
(iii) Source of the equipment, including the award number;
(iv) Whether title vests in the Cooperator or the Federal
Government;
(v) Acquisition date (or date received, if the equipment was
furnished by the Federal Government) and cost;
(vi) Information from which one can calculate the percentage of
Federal participation in the cost of the equipment (not applicable to
equipment furnished by the Federal Government);
(vii) Location and condition of the equipment and the date the
information was reported;
(viii) Unit acquisition cost; and
(ix) Ultimate disposition data, including date of disposal and sales
price or the method used to determine current fair market value where a
Cooperator compensates the REE Agency for its share.
(2) Equipment owned by the Federal Government shall be identified to
indicate Federal ownership.
(3) A physical inventory of equipment shall be taken and the results
reconciled with the equipment records at least once every two years and
a copy provided to the ADO responsible for the agreement. Any
differences between quantities determined by the physical inspection and
those shown in the accounting records shall be investigated to determine
the causes of the difference. The Cooperator shall, in connection with
the inventory, verify the existence, current utilization, and continued
need for the equipment.
(4) A control system shall be in effect to insure adequate
safeguards to prevent loss, damage, or theft of the equipment. Any loss,
damage, or theft of equipment shall be investigated and fully
documented. If the Federal Government owns the equipment, the Cooperator
shall promptly notify the REE Agency.
(5) Adequate maintenance procedures shall be implemented to keep the
equipment in good condition.
(6) Where the Cooperator is authorized or required to sell the
equipment, proper sales procedures shall be established which provide
for competition to the extent practicable and result in the highest
possible return.
(f) When the Cooperator no longer needs the equipment, the equipment
shall be used for other activities in accordance with the following
standards. For equipment with a current per unit fair market value of
$5,000 or more, the Cooperator may retain the equipment for other uses
provided that compensation is made to the original REE Agency or its
successor. The amount of compensation shall be computed by applying the
percentage of Federal participation in the cost of the original project
or program to the current fair market value of the equipment. If the
Cooperator has no need for the equipment, the Cooperator shall request
disposition instructions from the REE Agency. The REE Agency shall
determine whether the equipment can be used to meet the Agency's
requirements. If no requirement exists within that Agency, the
availability of the equipment shall be reported to the General Services
Administration (GSA) by the REE Agency to determine whether a
requirement for the equipment exists in other Federal agencies. The REE
Agency shall issue instructions to the Cooperator no later than 120
calendar days after the Cooperator's request and the following
procedures shall govern.
(1) If so instructed or if disposition instructions are not issued
within 120 calendar days after the Cooperator's request, the Cooperator
shall sell the equipment and reimburse the REE Agency an amount computed
by applying to the sales proceeds the percentage of Federal
participation in the cost of the original project or program. However,
the Cooperator shall be permitted to deduct and retain from the Federal
share $500 or ten percent of the
[[Page 444]]
proceeds, whichever is less, for the Cooperator's selling and handling
expenses.
(2) If the Cooperator is instructed to ship the equipment elsewhere,
the Cooperator shall be reimbursed by the Federal Government by an
amount which is computed by applying the percentage of the Cooperator's
participation in the cost of the original project or program to the
current fair market value of the equipment, plus any reasonable shipping
or interim storage costs incurred.
(3) If the Cooperator is instructed to otherwise dispose of the
equipment, the Cooperator shall be reimbursed by the REE Agency for such
costs incurred in its disposition.
(4) The REE Agency may reserve the right to transfer the title to
the Federal Government or to a third party named by the Federal
Government when such third party is otherwise eligible under existing
statutes. Such transfer shall be subject to the following standards.
(i) The equipment shall be appropriately identified in the award or
otherwise made known to the Cooperator in writing.
(ii) The REE Agency shall issue disposition instructions within 120
calendar days after receipt of a final inventory. The final inventory
shall list all equipment acquired with federal funds and federally owned
equipment. If the REE Agency fails to issue disposition instructions
within the 120 calendar days, the Cooperator shall apply the standards
of this section, as appropriate.
(iii) When the REE Agency exercises its right to take title, the
equipment shall be subject to the provisions for federally owned
equipment.
Sec. 550.39 Equipment replacement insurance.
If required by the terms and conditions of the award, the Cooperator
shall provide adequate insurance coverage for replacement of equipment
acquired with Federal funds in the event of loss or damage to such
equipment.
Sec. 550.40 Supplies and other expendable property.
(a) Title to supplies and other expendable property shall vest in
the Cooperator upon acquisition. If there is a residual inventory of
unused supplies exceeding $5,000 in total aggregate value upon
termination or completion of the project or program and the supplies are
not needed for any other federally-sponsored project or program, the
Cooperator shall retain the supplies for use on non-Federal sponsored
activities or sell them, but shall, in either case, compensate the
Federal Government for its share. The amount of compensation shall be
computed in the same manner as for equipment.
(b) The Cooperator shall not use supplies acquired with Federal
funds to provide services to non-Federal outside organizations for a fee
that is less than private companies charge for equivalent services,
unless specifically authorized by Federal statute as long as the Federal
Government retains an interest in the supplies.
Sec. 550.41 Federally-owned property.
(a) Title to federally-owned property remains vested in the Federal
Government. Cooperators shall submit annually an inventory listing of
federally-owned property in their custody to the REE Agency. Upon
completion of the award or when the property is no longer needed, the
Cooperator shall report the property to the REE Agency for further
Federal Agency utilization.
(b) If the REE Agency has no further need for the property, it shall
be declared excess and reported to the GSA, unless the REE Agency has
statutory authority to dispose of the property by alternative methods
(e.g., the authority provided by the Federal Technology Transfer Act (15
U.S.C. 3710 (i)) to donate research equipment to educational and non-
profit organizations in accordance with Executive Order 12999,
``Education technology: ensuring Opportunity for all children in the
next century.'' Appropriate instructions shall be issued to the
Cooperator by the REE Agency.
Sec. 550.42 Intangible property.
(a) The Cooperator may copyright any work that is subject to
copyright
[[Page 445]]
and was developed, by the Cooperator, or jointly by the Federal
Government and the Cooperator, or for which ownership was purchased,
under a cooperative agreement. REE Agencies reserve a royalty-free,
nonexclusive and irrevocable right to reproduce, publish, or otherwise
use the work for Federal purposes, and to authorize others to do so for
Federal purposes.
(b) Cooperators are subject to applicable regulations governing
patents and inventions, including government-wide regulations issued by
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements.''
(c) The REE Agency has the right to:
(1) Obtain, reproduce, publish or otherwise use the data first
produced under a cooperative agreement; and
(2) Authorize others to receive, reproduce, publish, or otherwise
use such data for Federal purposes.
(d)(1) In addition, in response to a Freedom of Information Act
(FOIA) request for research data relating to published research findings
produced under a cooperative agreement that were used by the Federal
Government in developing an Agency action that has the force and effect
of law, the REE Agency shall request, and the Cooperator shall provide,
within a reasonable time, the research data so that they can be made
available to the public through the procedures established under the
FOIA. If the REE Agency obtains the research data solely in response to
a FOIA request, the Agency may charge the requester a reasonable fee
equaling the full incremental cost of obtaining the research data. This
fee should reflect costs incurred by the Agency, the Cooperator, and
applicable subrecipients. This fee is in addition to any fees the Agency
may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).
(2) The following definitions apply for purposes of paragraph (d) of
this section:
(i) Research data is defined as the recorded factual material
commonly accepted in the scientific community as necessary to validate
research findings, but not any of the following: preliminary analyses,
drafts of scientific papers, plans for future research, peer reviews, or
communications with colleagues. This ``recorded'' material excludes
physical objects (e.g., laboratory samples). Research data also do not
include:
(A) Trade secrets, commercial information, materials necessary to be
held confidential by a researcher until they are published, or similar
information which is protected under law; and
(B) Personnel and medical information and similar information the
disclosure of which would constitute a clearly unwarranted invasion of
personal privacy, such as information that could be used to identify a
particular person in a research study.
(ii) Published is defined as either when:
(A) Research findings are published in a peer-reviewed scientific or
technical journal;
(B) A Federal Agency publicly and officially cites the research
findings in support of an Agency action that has the force and effect of
law; or
(C) Used by the Federal Government in developing an Agency action
that has the force and effect of law is defined as when an Agency
publicly and officially cites the research findings in support of an
Agency action that has the force and effect of law.
(e) All rights, title, and interest in any Subject Invention made
solely by employee(s) of the REE Agency shall be owned by the REE
Agency. All rights, title, and interest in any Subject Invention made
solely by at least one (1) employee of the REE Agency and at least one
(1) employee of the Cooperator shall be jointly owned by the Agency and
the Cooperator, subject to the provisions of 37 CFR part 401.
(f) REE Agencies shall have a nonexclusive, nontransferable,
irrevocable, paid-up license to practice or have practiced for or on
behalf of the United States the subject invention throughout the world.
[[Page 446]]
Procurement Standards
Sec. 550.43 Purpose of procurement standards.
Sections 44 through 50 set forth standards for use by Cooperators in
establishing procedures for the procurement of supplies and other
expendable property, equipment and other services with Federal funds.
These standards are furnished to ensure that such materials and services
are obtained in an effective manner and in compliance with the
provisions of applicable Federal statutes and executive orders. No
additional procurement standards or requirements shall be imposed by the
Federal awarding agencies upon Cooperators, unless specifically required
by Federal statute or executive order or approved by OMB.
Sec. 550.44 Cooperator responsibilities.
The standards contained in this section do not relieve the
Cooperator of the contractual responsibilities arising under its
contract(s). The Cooperator is the responsible authority, without
recourse to the REE Agency, regarding the settlement and satisfaction of
all contractual and administrative issues arising out of procurements
entered into in support of a nonassistance agreement. This includes
disputes, claims, award protests, source evaluation or other matters of
a contractual nature. Matters concerning violation of statute are to be
referred to such Federal, State or local authority, as may have proper
jurisdiction.
Sec. 550.45 Standards of conduct.
The Cooperator shall maintain written standards of conduct governing
the performance of its employees engaged in the award and administration
of contracts. No employee, officer, or agent shall participate in the
selection, award, or administration of a contract supported by Federal
funds if a real or apparent conflict of interest would be involved. Such
a conflict would arise when the employee, officer, or agent, any member
of his or her immediate family, his or her partner, or an organization
which employs or is about to employ any of the parties indicated herein,
has a financial or other interest in the firm selected for an award. The
officers, employees, and agents of the Cooperator shall neither solicit
nor accept gratuities, favors, or anything of monetary value from
contractors, or parties to subagreements. However, Cooperators may set
standards for situations in which the financial interest is not
substantial or the gift is an unsolicited item of nominal value. The
standards of conduct shall provide for disciplinary actions to be
applied for violations of such standards by officers, employees, or
agents of the Cooperator.
Sec. 550.46 Competition.
(a) All procurement transactions shall be conducted in a manner to
provide, to the maximum extent practical, open and free competition. The
Cooperator shall be alert to organizational conflicts of interest as
well as noncompetitive practices among contractors that may restrict or
eliminate competition or otherwise restrain trade. In order to ensure
objective contractor performance and eliminate unfair competitive
advantage, contractors that develop or draft specifications,
requirements, statements of work, invitations for bids and/or requests
for proposals shall be excluded from competing for such procurements.
Awards shall be made to the bidder or offeror whose bid or offer is
responsive to the solicitation and is most advantageous to the
Cooperator, price, quality and other factors considered. Solicitations
shall clearly set forth all requirements that the bidder or offer shall
fulfill in order for the bid or offer to be evaluated by the Cooperator.
Any and all bids or offers may be rejected when it is in the
Cooperator's interest to do so.
(b) Contracts shall be made only with responsible contractors who
possess the potential ability to perform successfully under the terms
and conditions of the proposed procurement. Consideration shall be given
to such matters as contractor integrity, record of past performance,
financial and technical resources or accessibility to other necessary
resources. In certain circumstances, contracts with certain parties are
restricted by agencies' implementation of Executive Orders 12549
[[Page 447]]
and 12689, ``Debarment and Suspension.''
(c) Recipients shall, on request, make available for the REE Agency,
pre-award review and procurement documents, such as request for
proposals or invitations for bids, independent cost estimates, etc.
Sec. 550.47 Cost and price analysis.
Some form of cost or price analysis shall be made and documented in
the procurement files in connection with every procurement action. Price
analysis may be accomplished in various ways, including the comparison
of price quotations submitted, market prices and similar indicia,
together with discounts. Cost analysis is the review and evaluation of
each element of cost to determine reasonableness, allocability and
allowability.
Sec. 550.48 Procurement records.
Procurement records and files for purchases in excess of the small
purchase threshold shall include the following at a minimum:
(a) Basis for contractor selection;
(b) Justification for lack of competition when competitive bids or
offers are not obtained; and
(c) Basis for award cost or price.
Sec. 550.49 Contract administration.
A system for contract administration shall be maintained to ensure
contractor conformance with the terms, conditions and specifications of
the contract and to ensure adequate and timely followup of all
purchases. Recipients shall evaluate contractor performance and
document, as appropriate, whether contractors have met the terms,
conditions and specifications of the contract.
Sec. 550.50 Contract provisions.
The recipient shall include, in addition to provisions to define a
sound and complete agreement, the following provisions in all contracts.
The following provisions shall also be applied to subcontracts.
(a) Contracts in excess of the simplified acquisition threshold
shall contain contractual provisions or conditions that allow for
administrative, contractual, or legal remedies in instances in which a
contractor violates or breaches the contract terms, and provide for such
remedial actions as may be appropriate.
(b) All contracts in excess of the simplified acquisition threshold
shall contain suitable provisions for termination by the cooperator,
including the manner by which termination shall be effected and the
basis for settlement. In addition, such contracts shall describe
conditions under which the contract may be terminated for default as
well as conditions where the contract may be terminated because of
circumstances beyond the control of the contractor.
(c) All negotiated contracts (except those for less than the
simplified acquisition threshold) awarded by recipients shall include a
provision to the effect that the recipient, the REE Agency, the
Comptroller General of the United States, or any of their duly
authorized representatives, shall have access to any books, documents,
papers and records of the contractor which are directly pertinent to a
specific program for the purpose of making audits, examinations,
excerpts and transcriptions.
(d) All contracts, including small purchases, awarded by recipients
and their contractors shall contain the procurement provisions of
appendix A, 2 CFR part 215, as applicable.
Reports and Records
Sec. 550.51 Purpose of reports and records.
Sections 550.52 through 550.55 set forth the procedures for
monitoring and reporting on the Cooperator's financial and program
performance and the necessary reporting format. They also set forth
record retention requirements, and property and equipment inventory
reporting requirements.
Sec. 550.52 Reporting program performance.
(a) The REE Agency shall prescribe the frequency with which
performance reports shall be submitted. Performance reports shall not be
required more frequently than quarterly or, less frequently than
annually. Annual reports shall be due 90 calendar days after the
[[Page 448]]
grant year; quarterly or semi-annual reports shall be due 30 days after
the reporting period. The REE Agency may require annual reports before
the anniversary dates of multiple year agreements in lieu of these
requirements. The final performance reports are due 90 calendar days
after the expiration or termination of the period of agreement.
(b) When required, performance reports shall contain, for each
award, detailed information on each of the following.
(1) A comparison of actual accomplishments with the goals and
objectives established for the period and the findings of the
investigator. Whenever appropriate and the output of programs or
projects can be readily quantified, such quantitative data should be
related to cost data for computation of unit costs.
(2) Reasons why established goals were not met, if appropriate.
(3) Other pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(c) Cooperators shall not be required to submit more than the
original and two copies of performance reports.
(d) Cooperators shall immediately notify the REE Agency of
developments that have a significant impact on the award-supported
activities. Also, notification shall be given in the case of problems,
delays, or adverse conditions which materially impair the ability to
meet the objectives of the award. This notification shall include a
statement of the action taken or contemplated, and any assistance needed
to resolve the situation.
Sec. 550.53 Financial reporting.
Financial Status Report.
(a) Each REE Agency shall require Cooperators to report the status
of funds as approved in the budget for the cooperative agreement. A
financial status report shall consist of the following information:
(1) The name and address of the Cooperator.
(2) The name and address of the PI.
(3) The name, address, and signature of the financial officer
submitting the report.
(4) A reference to the cooperative agreement.
(5) Period covered by the report.
(6) An itemization of actual dollar amounts expended on the project
during the reporting period (in line with the approved budget) and
cumulative totals expended for each budget category from the starting
date of the cooperative agreement.
(b) The REE Agency shall determine the frequency of the Financial
Status Report for each project or program, considering the size and
complexity of the particular project or program. However, the report
shall not be required more frequently than quarterly or less frequently
than annually. A final report shall be required at the completion of the
agreement.
(c) The REE Agency shall require Cooperators to submit the financial
status report (an original and no more than two copies) no later than 30
days after the end of each specified reporting period for quarterly and
semi-annual reports, and 90 calendar days for annual and final reports.
Extensions of reporting due dates may be approved by the REE Agency upon
request of the Cooperator.
Sec. 550.54 Invention disclosure and utilization reporting.
(a) The Cooperator shall report Invention Disclosures and
Utilization information electronically via i-Edison Web Interface at:
www.iedison.gov.
(b) If access to InterAgency Edison is unavailable, the invention
disclosure should be sent directly to: Division of Extramural Intentions
and Technology Resources, 6705 Rockledge Drive, (RKL 1), Suite 310, MSC
7980, Bethesda, Maryland 20892-7750.
Sec. 550.55 Retention and access requirements for records.
(a) This section sets forth requirements for record retention and
access to records for awards to Cooperators. REE agencies shall not
impose any other record retention or access requirements upon
Cooperators, excepting as set out in Sec. 550.42(d).
(b) Financial records, supporting documents, statistical records,
and all other records pertinent to an award shall be retained for a
period of 3 years
[[Page 449]]
from the date of submission of the final expenditure report or, for
awards that are renewed quarterly or annually, from the date of the
submission of the quarterly or annual financial report, as authorized by
the REE Agency. The only exceptions are the following:
(1) If any litigation, claim, or audit is started before the
expiration of the 3-year period, the records shall be retained until all
litigation, claims or audit findings involving the records have been
resolved and final action taken;
(2) Records for real property and equipment acquired with Federal
funds shall be retained for 3 years after final disposition;
(3) When records are transferred to or maintained by the REE Agency,
the 3-year retention requirement is not applicable to the Cooperator;
(4) Indirect cost rate proposals, cost allocations plans, etc., as
specified in paragraph (f) of this section.
(c) Copies of original records may be substituted for the original
records if authorized by the REE Agency.
(d) The REE Agency shall request transfer of certain records to its
custody from Cooperators when it determines that the records possess
long-term retention value. However, in order to avoid duplicate record
keeping, a REE Agency may make arrangements for Cooperators to retain
any records that are continuously needed for joint use.
(e) The REE Agency, the Inspector General, Comptroller General of
the United States, or any of their duly authorized representatives, have
the right of timely and unrestricted access to any books, documents,
papers, or other records of Cooperators that are pertinent to the
awards, in order to make audits, examinations, excerpts, transcripts and
copies of such documents. This right also includes timely and reasonable
access to a Cooperator's personnel for the purpose of interview and
discussion related to such documents. The rights of access in this
paragraph are not limited to the required retention period, but shall
last as long as records are retained.
(f) No Cooperator shall disclose its records that are pertinent to
an award until the Cooperator provides notice of the intended disclosure
with copies of the relevant records to the REE Agency.
(g) Indirect cost rate proposals, cost allocations plans, etc.
Paragraphs (g)(1) and (g)(2) of this section apply to the following
types of documents, and their supporting records: Indirect cost rate
computations or proposals, cost allocation plans, and any similar
accounting computations of the rate at which a particular group of costs
is chargeable (such as computer usage charge back rates or composite
fringe benefit rates).
(1) If submitted for negotiation. If the Cooperator submits to the
REE Agency or the subrecipient submits to the Cooperator the proposal,
plan, or other computation to form the basis for negotiation of the
rate, then the 3-year retention period for its supporting records starts
on the date of such submission.
(2) If not submitted for negotiation. If the Cooperator is not
required to submit to the REE Agency or the subrecipient is not required
to submit to the Cooperator the proposal, plan, or other computation for
negotiation purposes, then the 3-year retention period for the proposal,
plan, or other computation and its supporting records starts at the end
of the fiscal year (or other accounting period) covered by the proposal,
plan, or other computation.
Suspension, Termination, and Enforcement
Sec. 550.56 Purpose of suspension, termination, and enforcement.
Sections Sec. Sec. 550.57 and 550.58 of this part set forth uniform
suspension, termination, and enforcement procedures.
Sec. 550.57 Suspension and termination.
Awards may be suspended or terminated in whole or in part if
paragraphs (a), (b), or (c) of this section apply.
(a) The REE Agency may terminate the award, if a Cooperator
materially fails to comply with the provisions of this rule or the terms
and conditions of an award.
(b) The REE Agency with the consent of the Cooperator, in which case
the
[[Page 450]]
two parties shall agree upon the termination conditions, including the
effective date and, in the case of partial termination, the portion to
be terminated.
(c) If costs are allowed under an award, the responsibilities of the
Cooperator referred to in Sec. 550.32, including those for property
management as applicable, shall be considered in the termination of the
award, and provision shall be made for continuing responsibilities of
the Cooperator after termination, as appropriate.
Sec. 550.58 Enforcement.
(a) Remedies for noncompliance. If a Cooperator materially fails to
comply with the terms and conditions of an award, whether stated in a
Federal statute, regulation, assurance, application, or notice of award,
the REE Agency may, in addition to imposing any of the special
conditions outlined in Sec. 550.10, take one or more of the following
actions.
(1) Temporarily withhold cash payments pending correction of the
deficiency by the Cooperator or more severe enforcement action by the
REE Agency.
(2) Disallow all or part of the cost of the activity or action not
in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the project or program.
(5) Take other remedies that may be legally available.
(b) Effects of suspension and termination. Costs of a Cooperator
resulting from obligations incurred by the Cooperator during a
suspension or after termination of an award are not allowable unless the
REE Agency expressly authorizes them in the notice of suspension or
termination or thereafter. Other Cooperator costs during suspension or
after termination which are necessary and not reasonably avoidable are
allowable if paragraphs (b)(1) and (2) of this section apply.
(1) The costs result from obligations which were properly incurred
by the Cooperator before the effective date of suspension or
termination, are not in anticipation of it, and in the case of a
termination, are non-cancellable.
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(3) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude a Cooperator from being subject to
debarment and suspension under Executive Orders 12549 and 12689 and USDA
implementing regulations (7 CFR part 3017).
Subpart D_Close Out
Sec. 550.59 Purpose.
Sections 550.60 through 550.62 of this part contain closeout
procedures and other procedures for subsequent disallowances and
adjustments.
Sec. 550.60 Closeout procedures.
(a) Cooperators shall submit, within 90 calendar days after the date
of completion of the award, all financial, performance, and other
reports as required by the terms and conditions of the award. The REE
Agency may approve extensions to the reporting period when requested by
the Cooperator.
(b) Unless the REE Agency authorizes an extension, a Cooperator
shall liquidate all obligations incurred under the award not later than
90 calendar days after the funding period or the date of completion as
specified in the terms and conditions of the award or in Agency
implementing instructions.
(c) The REE Agency shall make prompt payments to a Cooperator for
allowable reimbursable costs under the award being closed out.
(d) The Cooperator shall promptly refund any balance of unobligated
cash advanced or paid by the REE Agency that it is not authorized to
retain for use in other projects. OMB Circular A-129 governs unreturned
amounts that become delinquent debts.
(e) When authorized by the terms and conditions of the award, the
REE Agency shall make a settlement for any upward or downward
adjustments to the Federal share of costs after closeout reports are
received.
(f) The Cooperator shall account for any personal property acquired
with
[[Page 451]]
Federal funds or received from the Federal Government in accordance with
Sec. Sec. 550.36 through 550.42.
(g) In the event a final audit has not been performed prior to the
closeout of an award, the REE Agency shall retain the right to recover
an appropriate amount after fully considering the recommendations on
disallowed costs resulting from the final audit.
Sec. 550.61 Subsequent adjustments and continuing responsibilities.
The closeout of an award does not affect any of the following:
(a) The right of the REE Agency to disallow costs and recover funds
on the basis of a later audit or other review.
(b) The obligation of the Cooperator to return any funds due as a
result of later refunds, corrections, or other transactions.
(c) Audit requirements in Sec. 550.24.
(d) Property management requirements in Sec. Sec. 550.36 through
550.42.
(e) Records retention as required in Sec. 550.56.
Sec. 550.62 Collection of amounts due.
(a) Any funds paid to a Cooperator in excess of the amount to which
the Cooperator is finally determined to be entitled under the terms and
conditions of the award constitute a debt to the Federal Government. If
not paid within a reasonable period after the demand for payment, the
REE Agency may in accordance with 7 CFR part 3, reduce the debt by--
(1) Making an administrative offset against other requests for
reimbursements, or
(2) Withholding advance payments otherwise due to the Cooperator, or
(3) Taking other action permitted by statute.
(b) Except as otherwise provided by law, the REE Agency shall charge
interest on an overdue debt in accordance with 31 CFR part 900,
``Federal Claims Collection Standards.''
[[Page 453]]
CHAPTER VI--NATURAL RESOURCES CONSERVATION SERVICE, DEPARTMENT OF
AGRICULTURE
--------------------------------------------------------------------
Editorial Note: Nomenclature changes to chapter VI appear at 60 FR
28514, June 1, 1995.
SUBCHAPTER A--GENERAL
Part Page
600 Organization................................ 455
601 Functions................................... 458
SUBCHAPTER B--CONSERVATION OPERATIONS
610 Technical assistance........................ 462
611 Soil surveys................................ 469
612 Snow surveys and water supply forecasts..... 470
613 Plant materials centers..................... 472
614 NRCS appeal procedures...................... 474
SUBCHAPTER C--WATER RESOURCES
621 River basin investigations and surveys...... 481
622 Watershed projects.......................... 485
623 Emergency Wetlands Reserve Program.......... 488
624 Emergency watershed protection.............. 496
625 Healthy Forests Reserve Program............. 502
SUBCHAPTER D--LONG TERM CONTRACTING
630 Long term contracting....................... 516
631 Great Plains Conservation Program........... 516
632 Rural Abandoned Mine Program................ 520
633 Water Bank Program.......................... 532
634 Rural Clean Water Program................... 538
635 Equitable relief from ineligibility......... 558
[[Page 454]]
636 Wildlife Habitat Incentive Program.......... 561
SUBCHAPTER E [RESERVED]
SUBCHAPTER F--SUPPORT ACTIVITIES
650 Compliance with NEPA........................ 573
651
[Reserved]
652 Technical service provider assistance....... 598
653 Technical standards......................... 608
654 Operation and maintenance................... 609
655
[Reserved]
656 Procedures for the protection of
archeological and historical properties
encountered in NRCS-assisted programs... 613
657 Prime and unique farmlands.................. 614
658 Farmland Protection Policy Act.............. 617
SUBCHAPTER G--MISCELLANEOUS
660
[Reserved]
661 Public information and right to privacy..... 625
662 Regional equity............................. 626
663-699
[Reserved]
[[Page 455]]
SUBCHAPTER A_GENERAL
PART 600_ORGANIZATION
Sec.
600.1 General.
600.2 National headquarters.
600.3 Regional offices.
600.4 State offices.
600.5 Area offices.
600.6 Field offices.
600.7 Specialized field offices.
600.8 Plant materials centers.
600.9 Major land resource area soil survey offices.
Authority: 7 U.S.C. 6962.
Source: 65 FR 14781, Mar. 20, 2000, unless otherwise noted.
Sec. 600.1 General.
(a) The Natural Resources Conservation Service (NRCS) was authorized
by the Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994 (Pub. L. 103-354, 7 U.S.C. 6901 note) and
established by Secretary's Memorandum 1010-1 (2.b.6), Reorganization of
the Department of Agriculture, to provide national leadership in the
conservation, development, and productive use of the Nation's natural
resources. Such leadership encompasses the conservation of soil, water,
air, plant, and animal resources with consideration of the many human
(economic and sociological) interactions. NRCS is the Federal agency
that works with landowners on private lands to help them conserve their
natural resources. NRCS employees are highly skilled in many scientific
and technical specialties, including soil science, soil conservation,
agronomy, biology, agroecology, range conservation, forestry,
engineering, geology, hydrology, wetlands science, cultural resources,
and economics. NRCS was formerly the Soil Conservation Service (SCS)
which was established by the Soil Conservation Act of 1935 (Pub. L. 74-
46, 49 Stat. 163 (16 U.S.C. 590 (a-f))). NRCS has responsibility for
three major areas:
(1) Soil and water conservation;
(2) Natural resource surveys including soil surveys, resources
inventory, snow surveys, and water supply forecasting; and
(3) Community resource protection and management including watershed
projects, river basin studies and investigations, resource conservation
and development areas, land evaluation and site assessment, and
emergency watershed protection. In addition, NRCS has leadership for the
Wetlands Reserve Program, Environmental Quality Incentives Program,
Grazing Lands Conservation Initiative, Farmland Protection Program,
Wildlife Habitat Incentives Program, Forestry Incentives Program, and
Conservation Farm Option. NRCS provides technical support for the
Conservation Reserve Program.
(b) The NRCS organization consists of a National Headquarters
located in Washington, DC; six regional offices; 50 state offices and
two equivalent offices in the Caribbean Area and the U.S. Trust
Territories of the Pacific Basin Area; approximately 2,500 field offices
and 300 specialized offices; 26 plant materials centers; 17 major land
resource area soil survey offices; nine national centers; and seven
national institutes. A Chief who reports to the USDA Under Secretary for
Natural Resources and Environment heads NRCS.
Sec. 600.2 National headquarters.
(a) Chief. The Chief, with assistance of the Associate Chief, is
responsible for administering a coordinated national program of natural
resource conservation; planning, directing, and coordinating all
program, technical, and administrative activities of NRCS; developing
policies and procedures; correlating NRCS conservation programs with
other agencies; accepting departmental leadership for programs for other
activities assigned by the Secretary of Agriculture; and serving as
Equal Employment Opportunity Officer for NRCS.
(b) Deputy chiefs. Five deputy chiefs assist the Chief as follows:
(1) Deputy Chief for Management. The Deputy Chief for Management is
responsible for policies, guidelines, and standards for management
services,
[[Page 456]]
human resources management, financial management, information
technology, administrative support (providing a coordinated
administrative management program for National Headquarters activities),
NRCS outreach, training, and correspondence management. This deputy
chief also is responsible for the activities of three national centers:
business management, information technology, and employee development.
(2) Deputy Chief for Strategic Planning and Accountability. The
Deputy Chief for Strategic Planning and Accountability is responsible
for policies, guidelines, and standards for strategic and performance
planning, budget planning and analysis, and operations management and
oversight.
(3) Deputy Chief for Programs. The Deputy Chief for Programs is
responsible for policies, guidelines, and standards for conservation
operations, resource conservation and community development, watersheds
and wetlands, international programs, conservation compliance
activities, conservation programs funded by the Commodity Credit
Corporation, and animal husbandry and clean water programs.
(4) Deputy Chief for Soil Survey and Resource Assessment. The Deputy
Chief for Soil Survey and Resource Assessment is responsible for
policies, guidelines, and standards for NRCS technical activities, and
provides leadership for soils, resource inventory, and resource
assessment. This deputy chief also is responsible for the activities of
two national centers (soil survey and cartography and geospatial) and
two national institutes (soil quality and natural resources inventory
and analysis).
(5) Deputy Chief for Science and Technology. The Deputy Chief for
Science and Technology is responsible for policies, guidelines, and
standards for the agency, and provides leadership for resource economics
and social sciences, conservation engineering, and ecological sciences.
This deputy chief also is responsible for the activities of four
national centers (water and climate, water management, soil mechanics,
and plant data) and five national institutes (grazing lands technology,
social sciences, watershed science, wetlands science, and wildlife
habitat management). This deputy chief, working closely with the deputy
chiefs for Management and Soil Survey and Resource Assessment, provides
overall direction for the National Science and Technology Consortium.
(c) National Science and Technology Consortium. The consortium
consists of three divisions, four centers, five technical institutes,
and several cooperating scientists under the Deputy Chief for Science
and Technology; two divisions, two centers, and two technical institutes
under the Deputy Chief for Soil Survey and Resource Assessment; and one
division and three centers under the Deputy Chief for Management.
(1) Centers. The nine centers provide specific products and services
that maintain and enhance the technical quality of the agency. The
centers are: water and climate, water management, soil mechanics, plant
data, soil survey, cartography and geospatial, information technology,
business management, and employee development.
(2) Institutes. The seven institutes are: soil quality, natural
resources inventory and analysis, grazing lands technology, social
sciences, watershed science, wetlands science, and wildlife habitat
management. The institutes provide training; develop technical
materials; and acquire, develop, and transfer needed technology in
special emphasis areas so field employees can better serve their
customers. The institutes often establish partnerships with other
Federal agencies, universities, and public and private organizations.
(3) Cooperating Scientists. Cooperating scientists work in the areas
of soil erosion and sedimentation, air quality, and agroforestry. These
scientists are located at various universities and research centers.
(d) Civil Rights. The Civil Rights staffs provide coordination,
assistance, and recommendations to the Chief on civil rights employment
and program compliance issues.
(e) Legislative Affairs. The Legislative Affairs Staff provides
coordination and assistance to the Chief on legislative affairs issues
and activities.
(f) Conservation Communications. The Conservation Communications
Staff is
[[Page 457]]
responsible for communications, volunteer programs, conservation
education, and public affairs activities.
(g) Strategic Natural Resource Issues. The Strategic Natural
Resource Issues Staff is responsible for coordinating priority strategic
issues as determined by the Chief.
Sec. 600.3 Regional offices.
Each regional office is under the direction and supervision of a
regional conservationist. Regional offices are responsible for
(1) Providing agency leadership, guidance, coordination, and
partnering for solutions to regional resource issues;
(2) Program implementation, consistency, and accountability;
(3) Region-wide strategic planning, performance measurement, and
operations management;
(4) Administrative operations and support;
(5) Fund integrity and accountability;
(6) Technical quality of work; and
(7) All NRCS activities in the region. Regional offices are located
in Beltsville, Maryland; Atlanta, Georgia; Fort Worth, Texas; Madison,
Wisconsin; Lincoln, Nebraska; and Sacramento, California.
Sec. 600.4 State offices.
Each office is under the direction and supervision of a State
conservationist. Each State conservationist is responsible for NRCS
programs in a State. The Pacific Basin Area Office, under the direction
and supervision of a director, serves the U.S. Trust Territories in that
area. The Caribbean Area Office, under the direction and supervision of
a director, serves the Commonwealth of Puerto Rico and the U.S. Virgin
Islands. Directors of the Pacific Basin and Caribbean areas have the
same responsibility and authority as a State conservationist. All
references to State conservationists in this chapter include the
directors of the Pacific Basin and Caribbean areas.
Sec. 600.5 Area offices.
Each area office is under the direction and supervision of an area
conservationist or assistant State conservationist for field operations
who is responsible for NRCS activities in the geographical area served
by the area office. Usually the geographical area includes multiple
field offices and counties. Many area offices now consist of teams
working on a watershed or other geopolitical basis.
Sec. 600.6 Field offices.
Each field office is under the direction and supervision of a
district conservationist who is responsible for NRCS activities in the
geographical area served by the field office. Usually the geographical
area of a field office includes one or more conservation districts and
one or more counties. Field offices are generally collocated with other
USDA agencies in USDA Service Centers.
Sec. 600.7 Specialized field offices.
Other field offices serve specialized activities, such as watershed
protection and flood reduction projects, construction projects, resource
conservation and development areas, and soil survey activities. State
conservationists designate direction and supervision of these offices.
Sec. 600.8 Plant materials centers.
Plant materials centers (PMC) assemble and test plant species for
conservation uses. Usually a PMC serves two or more States, and is under
the jurisdiction of the State conservationist where the center is
located. Each PMC is directed and supervised by a manager who is
responsible to a State office specialist/manager as designated by the
State conservationist.
Sec. 600.9 Major land resource area soil survey offices.
The United States is divided into 17 major land resource areas
(MLRA) for the purpose of soil survey production. Major land resource
area soil survey offices (MO) provide the technical leadership,
coordination, and quality assurance for all soil survey project
activities within the respective MLRA. Each MO serves two or more States
(except for the MO in Alaska), and is under the jurisdiction of the
State conservationist where the office is located. Each MO is directed
and supervised by
[[Page 458]]
a leader who is designated by the State conservationist.
PART 601_FUNCTIONS
Sec.
601.1 Functions assigned.
601.2 Functions reserved to the Secretary of Agriculture.
601.3 Defense responsibilities.
Authority: 7 U.S.C. 1010-1011; 16 U.S.C. 590a-590f, 1001-1008, 2001-
2009, 2203-2205, 3801 et seq.; 33 U.S.C. 701b-1.
Source: 65 FR 14783, Mar. 20, 2000, unless otherwise noted.
Sec. 601.1 Functions assigned.
The Natural Resources Conservation Service (NRCS) is the Federal
agency that works with private landowners to conserve their natural
resources. NRCS employees help land users and communities approach
conservation planning and implementation with an understanding of how
natural resources relate to each other and to people--and how human
activities affect those resources. The agency emphasizes voluntary,
science-based assistance, partnerships, and cooperative problem solving
at the community level. The mission of NRCS is to work on the Nation's
non-Federal lands to conserve, improve, and sustain natural resources.
The following functions support the mission.
(a) NRCS facilitates and provides conservation technical assistance
at the local level that helps people assess their natural resource
conditions and needs, set goals, identify programs and other resources
to address those needs, develop proposals and recommendations, implement
solutions, and measure their success. The agency's role is to assist
with:
(1) Resource inventories,
(2) Resource assessments,
(3) Planning assistance, and/or
(4) Technical assistance.
(b) NRCS provides technical assistance through local conservation
districts to land users, communities, watershed groups, Federal and
State agencies, other partners, and customers.
(c) NRCS provides assistance on a voluntary basis.
(d) The agency's work focuses on soil, water, air, plant, and animal
conservation including erosion reduction, water quality improvement,
wetland restoration and protection, fish and wildlife habitat
improvement, range management, stream restoration, water management, and
other natural resource issues.
(e) Through the conservation operations program, NRCS maintains a
cadre of conservationists and interdisciplinary technical experts who
provide landowners with advice and recommendations. Science based
procedures and techniques are based on new knowledge and research
provided by the Agricultural Research Service and others. NRCS developed
and maintains a system of directives--including manuals, handbooks, and
technical references--to institutionalize new methods, procedures, and
standards used to deliver technical assistance at the field level.
(f) NRCS has general responsibility for administration of the
following programs:
(1) Conservation operations, authorized by the Soil Conservation Act
of 1935 and the Soil and Water Resources Conservation Act of 1977.
Activities include:
(i) Conservation technical assistance to land users, communities,
units of State and local government, and other Federal agencies in
planning and implementing natural resource solutions to reduce erosion,
improve soil and water quantity and quality, improve and conserve
wetlands, enhance fish and wildlife habitat, improve air quality,
improve pasture and range conditions, reduce upstream flooding, and
improve woodlands. Assistance is also provided to implement the highly
erodible land (HEL) and wetland conservation (Swampbuster) provisions
and--on a reimbursable basis--the Wetlands Reserve Program (WRP) and
Conservation Reserve Program (CRP) in the 1985 Food Security Act, as
amended by the Food, Agriculture, Conservation and Trade Act of 1990 and
Federal Agriculture Improvement and Reform Act of 1996. NRCS technical
field staff make HEL and wetland determinations and assist land users to
develop and implement conservation plans needed
[[Page 459]]
to ensure compliance with the law. NRCS is also the lead Federal agency
for delineating wetlands on agricultural lands for purposes of
implementing both the provisions of the Food Security Act and Section
404 of the Clean Water Act.
(ii) Soil surveys that provide the public with local information on
the uses and capabilities of their soil resource. Soil surveys are based
on scientific analysis and classification of the soils and are used to
determine land capabilities and conservation treatment needs. Surveys
are conducted cooperatively with other Federal agencies, land grant
universities, State agencies, and local units of government. NRCS is the
world leader in soil classification and soil mapping, and is expanding
into soil quality.
(iii) Snow survey and water supply forecasts that provide western
States and Alaska with vital information and forecasts of seasonable
variable water supplies. NRCS field staff in cooperation with partnering
organizations manually collect data from 850 remote high mountain sites.
Data is electronically collected from an additional 600 SNOTEL
(automated snowpack telemetry network) sites. In cooperation with the
National Weather Service, the data is assembled and analyzed. Then, NRCS
staff develop seasonal water supply forecasts.
(iv) Plant Material Centers that assemble, test, and encourage
increased plant propagation and usefulness of plant species for biomass
production, carbon sequestration, erosion reduction, wetland
restoration, water quality improvement, streambank and riparian area
protection, coastal dune stabilization, and to meet other special
conservation treatment needs. The work is carried out cooperatively with
State and Federal agencies, private organizations, commercial
businesses, and seed and nursery associations. After species are proven,
they are released to the private sector for commercial production.
(v) National Resources Inventory (NRI) that is a statistically-based
survey designed and implemented using scientific principles to assess
conditions and trends of soil, water, and related resources on
nonfederal lands in the United States. The NRI captures data on land
cover and use, soil erosion, prime farmland, wetlands, habitat
diversity, selected conservation practices, and related attributes at
thousands of scientifically selected sample sites in all 50 states,
Puerto Rico, the U.S. Virgin Islands, and some Pacific Basin locations.
(2) Conservation programs in the Federal Agriculture Improvement and
Reform Act of 1996, most of which are funded by the Commodity Credit
Corporation (CCC). NRCS provides leadership and technical assistance for
the following programs:
(i) Environmental Quality Incentives Program (EQIP). EQIP provides a
single, voluntary conservation program for farmers and ranchers who face
serious threats to soil, water, and related natural resources.
Nationally, it provides technical, financial, and educational
assistance, half of it targeted to livestock-related natural resource
problems and half to more general conservation priorities.
(ii) Wetlands Reserve Program (WRP). WRP is a voluntary program to
restore and protect wetlands on private property. It provides an
opportunity for landowners to receive financial incentives to restore
wetlands in exchange for retiring marginal agricultural land.
(iii) Wildlife Habitat Incentives Program (WHIP). WHIP is a
voluntary program for people who want to develop and improve wildlife
habitat on private lands. It provides both technical assistance and cost
sharing to help establish and improve fish and wildlife habitat.
(iv) Farmland Protection Program (FPP). This program provides funds
to help purchase development rights to keep productive farmland in
agricultural use. Working through existing programs, USDA joins with
State, tribal, or local governments to acquire voluntary conservation
easements or other interests from landowners.
(v) Forestry Incentives Program (FIP). FIP supports good forest
management practices on privately owned, non-industrial forest lands
nationwide. FIP is designed to benefit the environment while meeting
future demands for wood products. Although not funded by CCC, Section
373 of the Federal Agriculture Improvement and Reform Act of 1996
[[Page 460]]
extended the program under discretionary appropriations.
(3) Resource Conservation and Development (RC&D) Program, authorized
by Section 102 of the Flood and Agriculture Act of 1962 (Pub. L. 87-702)
and Sections 1528-1538 of the Agriculture and Food Act of 1981 (Pub. L.
97-98). This program is initiated and directed at the local level by
volunteers who involve multiple communities, various units of
government, municipalities, and grassroots organizations. RC&D is a
catalyst for civic-oriented groups to share knowledge and resources in a
collective attempt to solve common problems. The program offers aid in
balancing the environmental, economic, and social needs of an area.
(4) Rural Abandoned Mine Program (RAMP) and other responsibilities
assigned under the Surface Mining Control and Reclamation Act of 1977
(Pub. L. 95-87). Under RAMP, NRCS provides technical and financial
assistance to landowners to reclaim certain abandoned coal-mined lands.
This assistance can be used to reclaim these lands for approved uses,
which include pasture, range, woodland, cropland, noncommercial
recreation, and wildlife habitat. The program's first priority is to
protect public health, welfare, safety, and property from hazards caused
by past surface coal mining or by surface effects of deep mining.
(5) Watershed surveys and planning, authorized by the Watershed
Protection and Flood Prevention Act (Pub. L. 83-566, Section 6 (16
U.S.C. 1001-1008)). The 1996 appropriations act combined the Small
Watershed Planning and the River Basin Surveys and Investigations
programs into a new program called the Watershed Surveys and Planning
Program. The program involves cooperation with other Federal, State, and
local agencies to conduct watershed planning, river basin surveys and
investigations, flood hazard analysis, and floodplain management
assistance, which aid in the development of coordinated water resource
programs, including the development of guiding principles and
procedures.
(6) Watershed and flood prevention operations include several
activities. Watershed operations are authorized by the Flood Control Act
of 1944 (Public Law 78-534) and the Watershed Protection and Flood
Prevention Act of 1954 (Public Law 87-566) and amendments; both of which
are addressed by 7 CFR 622. Since 1998, the appropriations act for the
Watershed Protection and Flood Prevention Act (Public Law 83-566) has
included funds, not to exceed a specified amount, that may be used for
Public Law 78-534 projects.
(i) Publc Law 83-566 and Public Law 78-534, jointly called the Small
Watershed Program, authorize the Secretary of Agriculture to cooperate
with State and local agencies to plan and carry out works of improvement
for flood prevention; for the conservation, development, utilization,
and disposal of water; and for the conservation and proper use of land
in watershed or sub-watershed areas. Under Public Law 83-566, these
areas shall not exceed 250,000 acres. There is no acreage limitation
under Public Law 78-534.
(ii) The Small Watershed Program provides for cooperation with State
and other public agencies (called project sponsors) in the installation
of planned works of improvement and land treatment measures in
authorized watershed projects. Eligible measures include flood
prevention, water conservation, recreation, agricultural water
management, floodplain easements, municipal and industrial water, and
rural water supply.
(7) Emergency Watershed Protection (EWP) Program, authorized by
Section 216 of Public Law 81-516, 33 U.S.C. 701b-1, and Section 403 of
the Agriculture Credit Act of 1978 (Public Law 95-334, 16 U.S.C. 2203),
as amended by Section 382 of the Federal Agriculture Improvement and
Reform Act of 1996 (Public Law 104-127, 110 Stat. 888, 1016). EWP
provides assistance to reduce an imminent threat to life and property
caused by a sudden impairment of a watershed from a natural disaster.
Emergency work includes such measures as removing debris from streams,
stabilizing streambanks, repairing levees, critical area stabilization,
and purchasing floodplain easements. Technical and financial assistance
is available to sponsoring local organizations (units of government,
Indian tribes and tribal organizations, and organizations formed by
State law) for this disaster
[[Page 461]]
recovery work. Sponsors are required to provide the local share of the
costs; obtain real property rights, water rights, and permits; and do
any needed operation and maintenance.
Sec. 601.2 Functions reserved to the Secretary of Agriculture.
(a) Designation of new Resource Conservation and Development (RC&D)
areas. Once designated, these areas may receive RC&D Program assistance
from NRCS.
(b) Administration of the Soil and Water Resources Conservation Act
of 1977 (Public Law 95-192) to conduct an appraisal and develop a
national conservation program every five years.
Sec. 601.3 Defense responsibilities.
In the event of nuclear attack, NRCS is responsible for providing:
(a) Technical guidance, based upon results of radiological
monitoring and the extent of radiological contamination to farmers,
ranchers, and others relating to:
(1) The selection and use of land for agricultural production.
(2) The harvesting of crops.
(3) The use of crops stored on the farm.
(4) The use, conservation, disposal, and control of water to insure
adequate usable water for agricultural purposes and to prevent floods.
(5) The safety of livestock.
(b) Basic soil information, land use guides, and onsite technical
assistance in selecting land for production and in applying practices to
increase production of food and fiber with maximum efficiency.
[[Page 462]]
SUBCHAPTER B_CONSERVATION OPERATIONS
PART 610_TECHNICAL ASSISTANCE
Subpart A_Conservation Operations
Sec.
610.1 Purpose.
610.2 Scope.
610.3 Assistance through conservation districts.
610.4 Technical assistance furnished.
610.5 Interdisciplinary assistance.
Subpart B_Soil Erosion Prediction Equations
610.11 Purpose and scope.
610.12 Equations for predicting soil loss due to water erosion.
610.13 Equations for predicting soil loss due to wind erosion.
610.14 Use of USLE, RUSLE, and WEQ.
Subpart C_State Technical Committees
610.21 Purpose and scope.
610.22 State Technical Committee membership.
610.23 State Technical Committee meetings.
610.24 Responsibilities of State Technical Committees.
610.25 Subcommittees and Local Working Groups.
Subpart D_Conservation of Private Grazing Land
610.31 Purpose and scope.
610.32 Technical assistance furnished.
Authority: 16 U.S.C. 590a-f, 590q, 2005b, 3861, 3862.
Source: 42 FR 38169, July 27, 1977, unless otherwise noted.
Subpart A_Conservation Operations
Sec. 610.1 Purpose.
This subpart sets forth Natural Resource Conservation Service (NRCS)
policies and procedures for furnishing technical assistance in
conservation operations.
[61 FR 27999, June 4, 1996]
Sec. 610.2 Scope.
(a) Conservation operations, including technical assistance, is the
basic soil and water conservation program of NRCS. This program is
designed to:
(1) Reduce soil losses from erosion;
(2) Help solve soil, water, and agricultural waste management
problems;
(3) Bring about adjustments in land use as needed;
(4) Reduce damage caused by excess water and sedimentation;
(5) Enhance the quality of fish and wildlife habitat; and
(6) Improve all agricultural lands, including cropland, forestland,
and grazing lands that include pastureland, rangeland, and grazed
forestland so that the long-term sustainability of the resource base is
achieved.
(b) The Natural Resources Conservation Service is USDA's technical
agency for providing assistance to private landowners, conservation
districts, and other organizations in planning and carrying out their
conservation activities and programs. NRCS works with individuals,
groups, and units of government to help them plan and carry out
conservation decisions to meet their objectives.
[64 FR 42003, Aug. 3, 1999]
Sec. 610.3 Assistance through conservation districts.
(a) Technical assistance is provided through and in cooperation with
conservation districts in the 50 States, the Commonwealth of Puerto
Rico, and the U.S. Virgin Islands. These districts, formed under
authority of State laws, are operated and controlled by local citizens.
They provide the leadership and the program needed to meet the
conservation objectives of the district.
(b) NRCS furnishes technical assistance to conservation districts as
specified in memorandums of understanding. Soil conservationists
assigned to conservation districts work directly with land users and
others according to the program needs and the priorities established by
the conservation districts.
(c) The practical experience of land users is combined with the
scientific knowledge and skills of professional conservationists to plan
and carry out locally formulated conservation programs.
[[Page 463]]
(d) When requested, technical assistance may be provided to owners,
operators, or groups using land that is under the jurisdiction of the
United States Department of the Interior if such land is included in a
conservation district or if assistance is in accordance with memorandums
of understanding identifying the coordination of agency activities.
Sec. 610.4 Technical assistance furnished.
The Natural Resources Conservation Service provides technical
assistance to land users and others who are responsible for making
decisions and setting policies that influence land use, conservation
treatment, and resource management. Technical assistance furnished by
NRCS consists of program assistance, planning assistance, application of
conservation practices, and assistance in the technical phases of USDA
cost-share programs.
(a) Program assistance is provided to conservation districts and
other organizations concerned with the conservation of soil, water,
plant, and wildlife resources. This assistance includes providing
resource inventory data and identifying conservation problems and needs
in order for districts to develop long-range soil and water conservation
programs. Individuals, groups, and organizations requesting NRCS
assistance through conservation districts include:
(1) Farmers, ranchers, and other land users concerned with the
conservation of land and water resources.
(2) County and other local government units such as park
authorities, departments of public works, planning, zoning (rural,
urban, and flood plain), school, and institution boards, highway
departments, and tax assessors.
(3) Citizen groups, youth groups, recreation groups, and garden
clubs.
(4) State and local units of government (highway, health,
recreation, water resources, and regional planning) involved in
establishing public policy regarding the use of resources.
(5) Federal departments and agencies such as Defense, Housing and
Urban Development, Public Roads, Health and Human Services; and
Interior.
(6) Professional consultants who provide services such as
engineering, planning, environmental assessment, tax assessment, and
forest management.
(b) Planning assistance includes evaluation of soil, water,
vegetation, and other resource data needed for making land use,
environmental and conservation treatment decisions. NRCS helps land
users make conservation plans for farms, ranches, and other land units.
This help includes onsite planning assistance in making conservation
plans. The plans are based on a soil survey and interpretations for the
intended land uses and conservation treatment. Plans may also include
other inventories of soil, water, plant, and related resources needed in
the planning process. Information about the responses of each kind of
soil and the conservation practices and resource management needed for
different land uses is provided. The land user's decisions recorded in
the plan are based on his conservation objectives. Conservation plans
provide for the orderly installation of conservation practices.
Conservation plans reflect changing conditions.
(c) Application assistance is provided to help land users apply and
maintain planned conservation work. NRCS assistance for applying the
conservation practices in the plan may include:
(1) Designing, constructing, and maintaining conservation practices;
(2) Selecting management alternatives and cultural practices needed
to establish and maintain vegetation; and
(3) Other conservation practices needed to protect land and water
resources.
(d) The Natural Resources Conservation Service assists in carrying
out certain phases of USDA soil and water conservation cost-share
programs. NRCS assists individual program participants with conservation
plans needed for long-term cost-share agreements. NRCS is assigned
responsibility by the Secretary of Agriculture for technical phases of
applying conservation practices on the land. This assignment includes:
(1) Determining what practices are needed and feasible to install,
(2) Selecting sites and planning and designing practices,
[[Page 464]]
(3) Providing assistance for installing practices, and
(4) Certifying that the work done is in accordance with NRCS
standards and specifications.
[42 FR 38169, July 27, 1977, as amended at 47 FR 56473, Dec. 17, 1982]
Sec. 610.5 Interdisciplinary assistance.
Technical assistance is based on the principle that soil, water,
plant, and related resources are interdependent and must be managed
accordingly. Soil conservationists integrate the various technical
fields in providing for the conservation of land and water resources.
Staff scientists and specialists develop conservation standards, prepare
necessary specifications, provide training, and review work performance,
NRCS uses consultants for conservation problems that require special
expertise.
Subpart B_Soil Erosion Prediction Equations
Source: 61 FR 27999, June 4, 1996, unless otherwise noted.
Sec. 610.11 Purpose and scope.
This subpart sets forth the equations and rules for utilizing the
equations that are used by the Natural Resources Conservation Service
(NRCS) to predict soil erosion due to water and wind. Section 301 of the
Federal Agriculture Improvement and Reform Act of 1996 (FAIRA) and the
Food Security Act, as amended, 16 U.S.C. 3801-3813 specified that the
Secretary would publish the universal soil loss equation (USLE) and wind
erosion equation (WEQ) used by the Department within 60 days of the
enactment of FAIRA. This subpart sets forth the equations, definition of
factors, and provides the rules under which NRCS will utilize the USLE,
the revised universal soil loss equation (RUSLE), and the WEQ.
Sec. 610.12 Equations for predicting soil loss due to water erosion.
(a) The equation for predicting soil loss due to erosion for both
the USLE and the RUSLE is A = R x K x LS x C x P. (For further
information about USLE see the U.S. Department of Agriculture Handbook
537, ``Predicting Rainfall Erosion Losses--A Guide to Conservation
Planning,'' dated 1978. Copies of this document are available from the
Natural Resources Conservation Service, P.O. Box 2890, Washington, DC
20013. For further information about RUSLE see the U.S. Department of
Agriculture Handbook 703, ``Predicting Soil Erosion by Water: A Guide to
Conservation Planning with the Revised Universal Soil Loss Equation
(RUSLE).'' Copies may be purchased from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.)
(b) The factors in the USLE equation are:
(1) A is the estimation of average annual soil loss in tons per acre
caused by sheet and rill erosion.
(2) R is the rainfall erosivity factor. Accounts for the energy and
intensity of rainstorms.
(3) K is the soil erodibility factor. Measures the susceptibility of
a soil to erode under a standard condition.
(4) LS is the slope length and steepness factor. Accounts for the
effect of length and steepness of slope on erosion.
(5) C is the cover and management factor. Estimates the soil loss
ratio for each of 4 or 5 crop stage periods throughout the year,
accounting for the combined effect of all the interrelated cover and
management variables.
(6) P is the support practice factor. Accounts for the effect of
conservation support practices, such as contouring, contour
stripcropping, and terraces on soil erosion.
(c) The factors in the RUSLE equation are defined as follows:
(1) A is the estimation of average annual soil loss in tons per acre
caused by sheet and rill erosion.
(2) R is the rainfall erosivity factor. Accounts for the energy and
intensity of rainstorms.
(3) K is the soil erodibility factor. Measures the susceptibility of
a soil to erode under a standard condition and adjusts it bi-monthly for
the effects of freezing and thawing, and soil moisture.
(4) LS is the slope length and steepness factor. Accounts for the
effect of
[[Page 465]]
length and steepness of slope on erosion based on 4 tables reflecting
the relationship of rill to interrill erosion.
(5) C is the cover and management factor. Estimates the soil loss
ratio at one-half month intervals throughout the year, accounting for
the individual effects of prior land use, crop canopy, surface cover,
surface roughness, and soil moisture.
(6) P is the support practice factor. Accounts for the effect of
conservation support practices, such as cross-slope farming,
stripcropping, buffer strips, and terraces on soil erosion.
Sec. 610.13 Equations for predicting soil loss due to wind erosion.
(a) The equation for predicting soil loss due to wind in the Wind
Erosion Equation (WEQ) is E = f(IKCLV). (For further information on WEQ
see the paper by N.P. Woodruff and F.H. Siddaway, 1965. ``A Wind Erosion
Equation,'' Soil Science Society of America Proceedings, Vol. 29, No. 5,
pages 602-608, which is available from the American Society of Agronomy,
Madison, Wisconsin. In addition, the use of the WEQ in NRCS is explained
in the Natural Resources Conservation Service (NRCS) National Agronomy
Manual, 190-V-NAM, second ed., Part 502, March, 1988, which is available
from the NRCS, P.O. Box 2890, Washington, DC 20013.)
(b) [Reserved]
(c) The factors in the WEQ equation are defined as follows:
(1) E is the estimation of the average annual soil loss in tons per
acre.
(2) f indicates the equation includes functional relationships that
are not straight-line mathematical calculations.
(3) I is the soil erodibility index. It is the potential for soil
loss from a wide, level, unsheltered, isolated field with a bare,
smooth, loose and uncrusted surface. Soil erodibility is based on soil
surface texture, calcium carbonate content, and percent day.
(4) K is the ridge roughness factor. It is a measure of the effect
of ridges formed by tillage and planting implements on wind erosion. The
ridge roughness is based on ridge spacing, height, and erosive wind
directions in relation to the ridge direction
(5) C is the climatic factor. It is a measure of the erosive
potential of the wind speed and surface moisture at a given location
compared with the same factors at Garden City, Kansas. The annual
climatic factor at Garden City is arbitrarily set at 100. All climatic
factor values are expressed as a percentage of that at Garden City.
(6) L is the unsheltered distance. It is the unsheltered distance
across an erodible field, measured along the prevailing wind erosion
direction. This distance is measured beginning at a stable border on the
upwind side and continuing downward to the nonerodible or stable area,
or to the downwind edge of the area being evaluated.
(7) V is the vegetative cover factor. It accounts for the kind,
amount, and orientation of growing plants or plant residue on the soil
surface.
Sec. 610.14 Use of USLE, RUSLE, and WEQ.
(a) All Highly Erodible Land (HEL) determinations are based on the
formulas set forth in 7 CFR Sec. 12.21 using some of the factors from
the USLE and WEQ and the factor values that were contained in the local
Field Office Technical Guide (FOTG) as of January 1, 1990. In addition,
this includes the soil loss tolerance values used in those formulas for
determining HEL. The soil loss tolerance value is used as one of the
criteria for planning soil conservation systems. These values are
available in the FOTG in the local field office of the Natural Resources
Conservation Service.
(b) RUSLE will be used to:
(1)(i) Evaluate the soil loss estimates of conservation systems
contained in the FOTG.
(ii) Evaluate the soil loss estimates of systems actually applied,
where those systems were applied differently than specified in the
conservation plan adopted by the producer or where a conservation plan
was not developed, in determining whether a producer has complied with
the HEL conservation provisions of the Food Security Act of 1985, as
amended, 16 U.S.C. 3801 et seq., set forth in 7 CFR part 12; and
(2) Develop new or revised conservation plans.
[[Page 466]]
Subpart C_State Technical Committees
Source: 74 FR 66912, Dec. 17, 2009, unless otherwise noted.
Sec. 610.21 Purpose and scope.
This subpart sets forth the procedures for establishing and using
the advice of State Technical Committees. The Natural Resources
Conservation Service (NRCS) will establish in each State a Technical
Committee to assist in making recommendations relating to the
implementation and technical aspects of natural resource conservation
activities and programs. The Department of Agriculture (USDA) will use
State Technical Committees in an advisory capacity in the administration
of certain conservation programs and initiatives. Pursuant to 16 U.S.C.
3862(d), these State Technical Committees and Local Working Groups are
exempt from the provisions of the Federal Advisory Committee Act (5
U.S.C. App. 2).
Sec. 610.22 State Technical Committee membership.
(a) State Technical Committees will include agricultural producers,
nonindustrial private forest land owners, and other professionals who
represent a variety of disciplines in soil, water, wetlands, plant, and
wildlife sciences. The State Conservationist in each State will serve as
chairperson. The State Technical Committee for each State will include
representatives from among the following, if willing to serve:
(1) NRCS, USDA;
(2) Farm Service Agency, USDA;
(3) State Farm Service Agency Committee, USDA;
(4) Forest Service, USDA;
(5) National Institute of Food and Agriculture, USDA;
(6) Each of the Federally recognized Indian Tribes in the State;
(7) State departments and agencies within the State, including the:
(i) Fish and wildlife agency;
(ii) Forestry agency;
(iii) Water resources agency;
(iv) Department of agriculture;
(v) Association of soil and water conservation districts; and
(vi) Soil and water conservation agency;
(8) Agricultural producers representing the variety of crops and
livestock or poultry raised within the State;
(9) Owners of nonindustrial private forest land;
(10) Nonprofit organizations, within the meaning of section
501(c)(3) of the Internal Revenue Code of 1986, with demonstrable
conservation expertise and experience working with agriculture producers
in the State; and
(11) Agribusiness.
(b) The State Conservationist will invite other relevant Federal,
State, and regional agencies, organizations, and persons knowledgeable
about economic and environmental impacts of natural resource
conservation techniques and programs to participate as needed.
(c) To ensure that recommendations of State Technical Committees
take into account the needs of the diverse groups served by USDA,
membership will include, to the extent practicable, individuals with
demonstrated ability to represent the conservation and related technical
concerns of particular historically underserved groups and individuals;
i.e., minorities, women, persons with disabilities, socially and
economically disadvantaged groups, and beginning farmers and ranchers.
(d) In accordance with the guidelines in paragraphs (a), (b), and
(c) of this section, it is the responsibility of the State
Conservationist to seek a balanced representation of interests among the
membership on the State Technical Committee. Individuals or groups
wanting to participate on a State Technical Committee within a specific
State may submit a request to the State Conservationist that explains
their interest and outlines their credentials which they believe are
relevant to becoming a member. Decisions regarding membership are at the
discretion of the State Conservationist. State Conservationist decisions
on membership are final and not appealable to any other individual or
group within USDA.
[[Page 467]]
Sec. 610.23 State Technical Committee meetings.
(a) The State Conservationist, as Chairperson, schedules and
conducts the meetings, although a meeting may be requested by any USDA
agency or State Technical Committee member.
(b) NRCS will establish and maintain national standard operating
procedures governing the operation of State Technical Committees and
Local Working Groups in its directive system. The standard operating
procedures will outline items such as: The best practice approach to
establishing, organizing, and effectively utilizing State Technical
Committees and Local Working Groups; direction on publication of State
Technical Committee and Local Working Group meeting notices and agendas;
State Technical Committee meeting summaries; how to provide feedback on
State Conservationist decisions regarding State Technical Committee
recommendations; and other items as determined by the Chief.
(c) In addition to the standard operating procedures established
under paragraph (b) of this section, the State Conservationist will
provide public notice and allow public attendance at State Technical
Committee and Local Working Group meetings. The State Conservationist
will publish a meeting notice no later than 14 calendar days prior to a
State Technical Committee meeting. Notification may exceed this 14-day
minimum where State open meeting laws exist and provide for a longer
notification period. This minimum 14-day notice requirement may be
waived in the case of exceptional conditions, as determined by the State
Conservationist. The State Conservationist will publish this notice in
at least one or more newspaper(s), including recommended Tribal
publications, to attain statewide circulation.
Sec. 610.24 Responsibilities of State Technical Committees.
(a) Each State Technical Committee established under this subpart
will meet on a regular basis, as determined by the State
Conservationist, to provide information, analysis, and recommendations
to appropriate officials of USDA who are charged with implementing and
establishing priorities and criteria for natural resources conservation
activities and programs under Title XII of the Food Security Act of 1985
including, but not limited to, the Conservation Reserve Program,
Wetlands Reserve Program, Conservation Security Program, Conservation
Stewardship Program, Farm and Ranch Lands Protection Program, Grassland
Reserve Program, Environmental Quality Incentives Program, Conservation
Innovation Grants, Cooperative Conservation Partnership Initiative,
Agricultural Water Enhancement Program, Conservation of Private Grazing
Land, Wildlife Habitat Incentive Program, Grassroots Source Water
Protection Program, Great Lakes Basin Program, Chesapeake Bay Watershed
Initiative, and the Voluntary Public Access and Habitat Incentive
Program. The members of the State Technical Committee may also provide
input on other natural resource conservation programs and issues as may
be requested by the State Conservationist or other USDA agency heads at
the State level as long as they are within the programs authorized by
Title XII. Such recommendations may include, but are not limited to,
recommendations on:
(1) The criteria to be used in prioritizing program applications;
(2) The State-specific application criteria;
(3) Priority natural resource concerns in the State;
(4) Emerging natural resource concerns and program needs; and
(5) Conservation practice standards and specifications.
(b) The role of the State Technical Committee is advisory in nature,
and the committee will have no implementation or enforcement authority.
The implementing agency reserves the authority to accept or reject the
committee's recommendations. However, the implementing USDA agency will
give strong consideration to the State Technical Committee's
recommendations.
(c) State Technical Committees will review whether Local Working
Groups are addressing State priorities.
Sec. 610.25 Subcommittees and Local Working Groups.
(a) Subcommittees. In some situations, specialized subcommittees,
made up of
[[Page 468]]
State Technical Committee members, may be needed to analyze and examine
specific issues. The State Conservationist may assemble certain members,
including members of Local Working Groups and other knowledgeable
individuals, to discuss, examine, and focus on a particular technical or
programmatic topic. The subcommittee may seek public participation, but
it is not required to do so. Nevertheless, recommendations resulting
from these subcommittee sessions, other than sessions of Local Working
Groups, will be made only in a general session of the State Technical
Committee where the public is notified and invited to attend. Decisions
resulting from recommendations of Local Working Groups will be
communicated to NRCS in accordance with the standard operating
procedures described in Sec. 610.23(b).
(b) Local Working Groups. (1) Local Working Groups will be composed
of conservation district officials, agricultural producers representing
the variety of crops and livestock or poultry raised within the local
area, nonindustrial private forest land owners, and other professionals
representing relevant agricultural and conservation interests and a
variety of disciplines in the soil, water, plant, wetland, and wildlife
sciences who are familiar with private land agricultural and natural
resource issues in the local community;
(2) Local Working Groups will provide recommendations on local
natural resource priorities and criteria for conservation activities and
programs; and
(3) Local Working Groups will follow the standard operating
procedures described in Sec. 610.23(b).
Subpart D_Conservation of Private Grazing Land
Source: 67 FR 68497, Nov. 12, 2002, unless otherwise noted.
Sec. 610.31 Purpose and scope.
(a) This subpart sets forth the policies for the Conservation of
Private Grazing Land (CPGL) Program, as authorized by Section 386 of the
Federal Agriculture Improvement and Reform Act of 1996, (Pub. L. 104-
127, April 4, 1996) 16 U.S.C. 2005b. Under the CPGL Program, NRCS will
provide technical assistance to landowners and managers who request
assistance based on locally-established priorities and resource
concerns. The purpose of the CPGL Program is to provide technical
assistance to private grazing land owners and managers to voluntarily
conserve or enhance grazing land resources to meet ecological, economic,
and social demands.
(b) The term ``private grazing land'' means private, State-owned,
tribally owned, and any other non-federally owned rangeland,
pastureland, grazed forestland, hayland, and other lands used for
grazing.
(c) The NRCS Chief may implement the CPGL Program in any of the 50
States, the District of Columbia, Commonwealth of Puerto Rico, Guam, the
U.S. Virgin Islands, and American Samoa. NRCS will provide assistance in
cooperation with conservation districts, or directly to a landowner or
operator.
Sec. 610.32 Technical assistance furnished.
(a) Provide technical assistance to grazing-land owners and managers
to plan and implement resource conservation on grazing land. The
objective of planning on grazing land is to assist landowners and
managers in understanding the basic ecological principles associated
with managing their land. This objective can be met by implementing a
plan that meets the needs of the resources (soil, water, air, plants,
and animals) and management objectives of the owner or manager. NRCS may
provide assistance, at the request of the private grazing-land owner or
manager to:
(1) Maintain and improve private grazing land resources that provide
multiple benefits;
(2) Ensure the long-term sustainability of private grazing land
resources;
(3) Implement new grazing land management technologies;
(4) Manage resources on private grazing land through conservation
planning, including, but not limited to; grazing management, nutrient
management, and weed and invasive species control;
[[Page 469]]
(5) Maintain and improve water quality and quantity, aquatic and
wildlife habitat, recreational opportunities, and aesthetics on private
grazing land;
(6) Harvest, process, and market private grazing land resources; and
(7) Identify opportunities to diversify private grazing land
enterprises.
(b) Refer to 7 CFR 610.4 on other items relating to technical
assistance.
(c) To receive technical assistance, a landowner or manager may
contact NRCS or the local conservation district to seek assistance to
solve identified natural resource problems or opportunities.
Participation in this program is voluntary.
PART 611_SOIL SURVEYS
Subpart A_General
Sec.
611.1 Purpose and scope.
611.2 Cooperative relationships.
Subpart B_Soil Survey Operations
611.10 Standards, guidelines, and plans.
611.11 Soil survey information.
Subpart C_Cartographic Operations
611.20 Function.
611.21 Availability of aerial photography.
611.22 Availability of satellite imagery.
Authority: 16 U.S.C. 590a-590f, 590q, 42 U.S.C. 3271-3274.
Source: 69 FR 60283, Oct. 8, 2004, unless otherwise noted.
Subpart A_General
Sec. 611.1 Purpose and scope.
(a) This part sets forth policy on soil survey operations of the
Natural Resources Conservation Service (NRCS).
(b) NRCS is responsible for soil survey activities of the U.S.
Department of Agriculture (USDA). A soil survey provides:
(1) An orderly, on-the-ground, scientific inventory of soil
resources according to their potentialities and problems of use; and
(2) Information about each kind of soil in sufficient detail to meet
all reasonable needs of farmers, agricultural technicians, community
planners, engineers, and scientists in planning and transferring the
findings of research and experience to specific land areas.
Sec. 611.2 Cooperative relationships.
(a) Soil surveys on nonfederal lands are carried out cooperatively
with State agricultural experiment stations and other State agencies.
The cooperative effort is evidenced in a memorandum of understanding
setting forth guidelines for actions to be taken by each cooperating
party in the performance of soil surveys. Similar cooperative
arrangements exist between NRCS and other Federal agencies for soil
surveys on Federal lands.
(b) Arrangements for nonfederal financial participation in the cost
of soil surveys may be made with States, counties, soil conservation
districts, planning agencies, and other local groups.
Subpart B_Soil Survey Operations
Sec. 611.10 Standards, guidelines, and plans.
(a) NRCS conducts soil surveys under national standards and
guidelines for naming, classifying, and interpreting soils and for
disseminating soil survey information.
(b) A soil survey Memorandum of Understanding (MOU) is prepared
prior to the start of each soil survey project, or a work plan is
prepared for soil survey maintenance activities. These documents provide
specific details and technical specifications to support the
interpretive and data needs of the area to be surveyed. The MOU is
signed by representatives of NRCS, land grant universities, and in some
States representatives of other State agencies. Federal land
administering agencies also sign the MOU if federal lands are included
in the survey.
Sec. 611.11 Soil survey information.
(a) Availability. NRCS disseminates soil survey information to the
public by any of the means described in paragraph (d) of this section.
NRCS makes soil survey information available as soon as is practicable
following field work or other soil survey activity that provides new
soil survey information.
(b) Content. Soil survey information conforms with standards and
meets the
[[Page 470]]
needs identified in the soil survey MOU or work plan as described in
Sec. 611.10 of this part. Soil survey information includes:
(1) Soil maps that delineate the location and extent of various soil
areas;
(2) Soil characteristics for each of the soil areas shown on soil
maps;
(3) Interpretations of the soil characteristics; and
(4) Information about the source, version, and applicability or
limitations associated with the soil survey information.
(c) Maintenance. Soil survey information is reviewed on a periodic
basis to ensure that the information continues to meet evolving needs.
(d) Distribution. Soil survey information is disseminated to the
public through electronically accessible maps and reports, electronic
access to data files, or printed documents. To the extent practicable,
as limited by commonly accepted technology, soil survey information is
disseminated in electronic form.
(e) Resource conservation plan data. Information prepared
specifically for use in developing resource conservation plans for soil
conservation district cooperators is considered confidential. Soil maps
and interpretations prepared for this use will not be made available to
others without the consent of the landowner as well as the district
governing body. However, soil survey information from which the
conservation plan was developed may be disseminated as described in
paragraph (a) of this section.
Subpart C_Cartographic Operations
Sec. 611.20 Function.
The NRCS National Cartography and Geospatial Center provides
cartographic services needed to carry out NRCS functions. Cartographic
services include general cartography, photogrammetry, aerial
photography, planimetric and topographic mapping, drafting, and
specialized types of reproduction.
Sec. 611.21 Availability of aerial photography.
The National Cartography and Geospatial Center obtains necessary
clearance for all aerial photography for NRCS. New aerial photography of
designated areas in the United States is obtained yearly by NRCS through
competitive contracting. This photography is obtained only after it is
determined that imagery of these areas available from other sources does
not meet NRCS scale and quality requirements. Orders for reproductions
of NRCS aerial photography are subject to the fee schedule cited in
Sec. 1.2(b) of this title. Order reproductions from the National
Cartography and Geospatial center: USDA--National Resources Conservation
Service; P.O. Box 6567, FWFC-Bldg. 23; 501 W. Felix Street; Forth Worth,
Texas 76115.
Sec. 611.22 Availability of satellite imagery.
Cloud-free maps of the United States based on imagery received from
a satellite are prepared and released to the pubic by NRCS. The maps
offer the first image of the United States not obscured by clouds or
distortions. Orders or requests for information should be directed to
the National Cartography and Geospatial Center, USDA--Natural Resources
Conservation Service; P.O. Box 6567, FWFC-Bldg. 23; 501 W. Felix Street;
Forth Worth, Texas 76115. Orders are subject to the fee schedule cited
in Sec. 1.2(b) of this title.
PART 612_SNOW SURVEYS AND WATER SUPPLY FORECASTS
Sec.
612.1 Purpose and scope.
612.2 Snow survey and water supply forecast activities.
612.3 Data collected and forecasts.
612.4 Eligible individuals or groups.
612.5 Dissemination of water supply forecasts and basic data.
612.6 Application for water supply forecast service.
612.7 Forecast user responsibility.
Authority: 26 Stat. 653; Sec. 8, Reorg. Plan No. IV of 1940, 54
Stat. 1234 (5 U.S.C. App. II); 5 FR 2421, 3 CFR 1938-1943 Comp. P. 1288.
Source: 40 FR 12067, Mar. 17, 1975, unless otherwise noted.
[[Page 471]]
Sec. 612.1 Purpose and scope.
This part sets forth Natural Resources Conservation Service (NRCS)
policy and procedure for the administration of a cooperative snow survey
and water supply forecast program. The program provides agricultural
water users and other water management groups in the western states area
with water supply forecasts to enable them to plan for efficient water
management. The program also provides the public and the scientific
community with a data base that can be used to accurately determine the
extent of the now resource. The western states area comprises Alaska,
Arizona, California (east side of the Sierra Nevada mountain range
only), Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah,
Washington, and Wyoming.
Sec. 612.2 Snow survey and water supply forecast activities.
To carry out the cooperative snow survey and water supply forecast
program, NRCS:
(a) Establishes, maintains, and operates manual and automated snow
course and related hydro meteorological networks. Planning for such
networks is carried out in accordance with OMB Circular A-62.
(b) Determines and provides information on the expected water
supply, including seasonal streamflow data. If pertinent and appropriate
to the needs of cooperators and not otherwise available to them, may
provide necessary interpretative analyses and forecasts required for
operation of water-control structures and/or agricultural operations.
(c) On request and to the extent NRCS resources and any required
cooperator contributions are available, establishes hydrometeorological
stations to cllect and provide data and necessary interpretive analyses
to the requesting party. By written agreement NRCS may accept
cooperators' funds, materials, equipment, and services for this purpose.
(d) Develops and encourages use of new techniques and improving data
collection and processing.
(e) Cooperates with other federal, state, and local agencies,
organizations, and Canadian provinces and agencies.
Sec. 612.3 Data collected and forecasts.
(a) Basic data are currently collected at numerous sites in the
western states area. Data sites generally include a snow course where
both snow depth and water equivalent of snow are measured. However,
special sites may measure only snow depth or water equivalent. Many of
these sites also provide related drometeorological data, such as
precipitation, temperature, humidity, solar tradiation, and wind.
(b) Water supply forecasts in the western states area are generally
made monthly from January through June. Forecasts may be made more
frequently for an established need when data are available to NRCS.
Sec. 612.4 Eligible individuals or groups.
(a) Any individual or group who is a significant water user and who
would benefit from a water supply forecast may obtain forecasts from
NRCS on a regular basis provided data are available to NRCS to develop a
forecast at the desired location.
(b) The program collects and interprets data as a service and an aid
to agricultural interests, particularly those served by or affiliated
with soil, water, and other conservation districts. Information
collected by NRCS for these agricutural users is also made available to
other Federal, State, and private agencies and to the general public
without charge. Cooperator financial contribution is usually required
for special measurements or interpretations beyond the scope of the
regular program.
Sec. 612.5 Dissemination of water supply forecasts and basic data.
Water supply outlook reports prepared by NRCS and its cooperators
containing water supply forecasts and basic data are usually issued
monthly by each NRCS state office in the western states area for the
months of January through June. Other reports jointly issued by NRCS and
its cooperators include a fall water supply summary, annual and
accumulative summaries of data, and a western states area report
covering water supply outlook.
[[Page 472]]
Sec. 612.6 Application for water supply forecast service.
Requests for obtaining water supply forecasts or related assistance
may be directed to any NRCS office in the western states areas. NRCS
offices are described in part 600 of this chapter.
Sec. 612.7 Forecast user responsibility.
The forecast user's obligation to the federal government is to give
appropriate credit and recognition to NRCS for information furnished.
The Federal Government does not assume any responsibility for management
decisions the user makes which may be based in whole or part on
information provided by NRCS.
PART 613_PLANT MATERIALS CENTERS
Sec.
613.1 Purpose.
613.2 Policy and objectives.
613.3 NRCS responsibilities in plant materials.
613.4 Special production of plant materials.
613.5 PMCs.
Authority: 16 U.S.C. 590a-590f, 5908; 7 U.S.C. 1010-1011.
Source: 73 FR 51351, Sept. 3, 2008, unless otherwise noted.
Sec. 613.1 Purpose.
This part provides NRCS policy on the operation of PMCs. The Centers
have responsibilities for assembling, testing, releasing, and providing
for the commercial production and use of plant materials and plant
materials technology for programs of soil, water, and related resource
conservation and development.
Sec. 613.2 Policy and objectives.
(a) It is NRCS policy to assemble, comparatively evaluate, release,
and distribute for commercial increase new or improved plant materials
and plant materials technology needed for broad programs of resource
conservation and development for agriculture, wildlife, urban,
recreation, and other land uses and environmental needs. It is the
policy of NRCS to conduct plant materials work in cooperation with other
agencies of the Department of Agriculture, such as the Agricultural
Research Service, and with other Federal and State research agencies,
including State agricultural experiment stations. The emphasis of the
NRCS plant materials work is to find suitable plants to address
conservation needs. In contrast, the emphasis of research agencies and
organizations in plant development is to improve economically important
crops. The NRCS program of testing and releasing new seed-propagated
plant materials follows the guidelines in ``Statement of
Responsibilities and Policies Relating to the Development, Release, and
Multiplication of Publicly Developed Varieties of Seed-Propagated
Crops,'' which was adopted in June 1972, by Land Grant Colleges and
interested Federal agencies. NRCS releases improved conservation plant
materials requiring vegetative multiplication in ways appropriate for
particular States and particular species by working with experiment
stations, crop improvement associations, and other State and Federal
agencies.
(b) The objective of the plant materials activity is to select or
develop special and improved plants and techniques for their successful
establishment and maintenance to solve conservation problems and needs
related to:
(1) Controlling soil erosion on all lands;
(2) Conserving water;
(3) Protecting upstream watersheds;
(4) Reducing sediment movement into waterways and reservoirs through
the stabilization of critical sediment sources, such as surface mined
lands, highway slopes, recreation sites, and urban and industrial
development areas;
(5) Stabilizing disposal areas for liquid and solid wastes;
(6) Improving plant diversity and lengthening the grazing season on
dryland pastures and rangelands;
(7) Managing brush on mountain slopes with fire-retarding plant
cover to reduce the possibility of fires that threaten life and
property, or result in serious sediment sources;
(8) Improving the effectiveness of windbreaks and shelterbelts for
reducing airborne sediment, controlling
[[Page 473]]
snow drifting, and preventing crop damage from wind erosion;
(9) Protecting streambank, pond, and lake waterlines from erosion by
scouring and wave action;
(10) Improving wildlife food and cover, including threatened and
endangered and pollinator species;
(11) Selecting special purpose plants to meet specific needs for
environment protection and enhancement;
(12) Selecting plants that tolerate air pollution agents and toxic
soil chemicals;
(13) Selecting plants that mitigate odor, Particulate Matter (PM)-
10, and PM-2.5;
(14) Testing plants for biofuels and other energy-related
activities; and
(15) Evaluating plants and techniques to combat invasive plant
species and for reestablishment of desirable species after eradication.
Sec. 613.3 NRCS responsibilities in plant materials.
NRCS operates or enters into agreements with State universities or
other State organizations to operate PMCs. NRCS also cooperates, both
formally and informally, with other Federal, State, county, and
nonprofit agencies or organizations on the selection of plants and
evaluation of plant technology to increase the capabilities of PMCs.
NRCS employs specialists for testing and selecting plant materials for
conservation uses and the development of plant materials technology.
NRCS' responsibilities are to:
(a) Identify the resource conservation needs and cultural management
methods for environmental protection and enhancement.
(b) Assemble and comparatively evaluate plant materials at PMCs and
on sites where soil, climate, or other conditions differ significantly
from those at the Centers.
(c) Make comparative field plantings for final testing of promising
plants and techniques in cooperation with conservation districts and
other interested cooperators.
(d) Release cooperatively improved conservation plants and maintain
the breeder or foundation stocks in ways appropriate for particular
State and plant species by working with experiment stations, crop
improvement associations, and other State and Federal agencies.
(e) Produce limited amounts of foundation or foundation-quality seed
and plants available for allocation to conservation districts,
experiment stations, other Federal and State research agencies, State
seed certifying organizations and directly to commercial growers (if
other options do not exist) that will use the material to establish seed
fields, seed orchards, or vegetative plantings for large-scale increase.
(f) Encourage and assist conservation districts, commercial seed
producers, and commercial and State nurseries to produce needed plant
materials for conservation uses.
(g) Encourage the use of improved plant materials and plant
materials technology in resource conservation and environmental
improvement programs.
Sec. 613.4 Special production of plant materials.
NRCS can produce plant materials in the quantity required to do a
specific conservation job if this production will serve the public
welfare and only if the plant materials are not available commercially.
This function will be performed only until the plant materials are
available commercially. Specific production of plant materials by NRCS
requires the approval of the Chief.
Sec. 613.5 PMCs.
(a) The Norman A. Berg National PMC. The Norman A. Berg National PMC
at Beltsville, Maryland, focuses on national initiatives and provides
coordination for plant materials work across all 50 States. In addition,
the center provides plants and plant technology to address resource
concerns in the mid-Atlantic region.
(b) Other PMCs. There are 26 other PMCs. Each serves several major
land resource areas. NRCS operates 24 of these Centers, and 2 by
cooperating agencies, as follows:
(1) Operated by NRCS: Tucson, AZ, Booneville, AR, Lockeford, CA,
Brooksville, FL, Americus, GA, Molokai, HI, Aberdeen, ID, Manhattan, KS,
Galliano, LA, East Lansing, MI, Coffeeville, MS, Elsberry, MO, Bridger,
[[Page 474]]
MT, Fallon, NV, Cape May Courthouse, NJ, Los Lunas, NM, Big Flats, NY,
Bismarck, ND, Corvallis, OR, Kingsville, TX, Knox City, TX, Nacogdoches,
TX, Pullman, WA, and Alderson, WV.
(2) Operated by cooperating agencies with financial and technical
assistance from NRCS: Meeker, CO--White River and Douglas Creek Soil
Conservation Districts with partial funding from NRCS.
(3) Operated by cooperating agencies with technical assistance from
NRCS: Palmer, AK--State of Alaska, Department of Natural Resources.
PART 614_NRCS APPEAL PROCEDURES
Sec.
614.1 General.
614.2 Definitions.
614.3 Decisions subject to informal appeal procedures.
614.4 Decisions not subject to informal appeal procedures.
614.5 Reservation of authority.
614.6 Agency records and decision notices.
614.7 Preliminary technical determinations.
614.8 Final technical determinations.
614.9 Program decisions.
614.10 Appeals before the Farm Service Agency county committee.
614.11 Mediation.
614.12 Transcripts.
614.13 Appealability review.
614.14 Computation of time.
614.15 Implementation of final NAD decisions.
614.16 Participation of third parties in NRCS proceedings.
614.17 Judicial review.
Authority: 5 U.S.C. 301; 7 U.S.C. 6932 and 6995; and 16 U.S.C.
3822(a).
Source: 77 FR 34190, June 11, 2012, unless otherwise noted.
Sec. 614.1 General.
This part sets forth the informal appeal procedures under which a
participant may appeal adverse technical determinations or program
decisions made by officials of the Natural Resources Conservation
Service (NRCS), an agency under the Department of Agriculture (USDA).
These regulations reflect NRCS policy to resolve at the agency level, to
the greatest extent possible, disputes arising from adverse technical
determinations and program decisions made by NRCS. Once a decision is
rendered final by NRCS, participants may appeal to the National Appeals
Division (NAD) as provided for under 7 CFR part 11, or to the Farm
Service Agency (FSA) county committee pursuant to 7 CFR part 780 for
decisions rendered under Title XII of the Food Security Act of 1985, as
amended, 16 U.S.C. 3801 et seq. (Title XII).
Sec. 614.2 Definitions.
The following definitions are applicable for the purposes of this
part:
Adverse decision means the final technical determination or the
program decision issued by NRCS that is adverse to the individual
participant and not a matter of general applicability.
Agency means NRCS and its employees.
Agency exhibit means those documents or materials that are used
during the hearing to further explain, differentiate, or distinguish a
point, concept, or criteria in an appeal but that were not those
materials or documents that the agency relied upon in making the adverse
decision. Agency exhibits are labeled alphabetically A, B, C, etc., with
total pages in each exhibit numbered.
Agency record means all documents and materials, including documents
submitted by the participant and those generated by NRCS, which the
agency relies upon and bases its program decision or technical
determination. The agency record will include all documents relevant to
the adverse decision. NRCS maintains the agency record and will, upon
request or appeal, make available a copy of the agency record for a
specific adverse decision to the participant(s) involved in the dispute.
Agency record documents are labeled numerically 1, 2, 3, etc., in the
lower right hand of the document.
Appeal means a written request by a participant asking for review
(including mediation) of an adverse NRCS technical determination or
program decision under this part. An appeal must set out the reason(s)
for appeal and include any supporting documentation. An appeal is
considered filed when the participant's request has been received by the
accepting official as indicated in the adverse decision notice.
[[Page 475]]
Chief means the Chief of NRCS or his or her designee.
Commodity Credit Corporation means a wholly owned government
corporation within USDA.
Conservation district means any district or unit of State or local
government developed under State law for the express purpose of
developing and carrying out a local soil and water conservation program.
Such district or unit of government may be referred to as a conservation
district, soil and water conservation district, natural resource
district, conservation committee, or similar name.
County committee means a FSA county or area committee established in
accordance with section 8(b) of the Soil Conservation and Domestic
Allotment Act (16 U.S.C. 590h(b)).
Designated conservationist means the NRCS official, usually the
district conservationist, whom the State Conservationist designates to
be responsible for the program or compliance requirement to which this
part is applicable.
Final technical determination means a preliminary technical
determination issued under the Highly Erodible Land and Wetland
Conservation (HELC/WC) provisions found in 7 CFR part 12 that have
become final, and thus, appealable under sections 8 or 10 of this final
rule.
Hearing means an informal appeal proceeding, either before the NRCS
State Conservationist or the FSA county committee that affords a
participant opportunity to present testimony and documentary evidence to
show why an adverse program decision is in error and why the adverse
decision should be reversed.
Mediation means a process in which a neutral third party, the
mediator, meets with the disputing parties, usually the participant and
the agency. Through mediation, the parties have the opportunity to work
together with the assistance of the mediator to: Improve communications,
understand the relevant issues, develop and explore alternatives, and
reach a mutually satisfactory resolution.
Mediator means a neutral third party who serves as an impartial
facilitator between two or more parties to assist them in resolving a
dispute. The mediator does not take sides or render decisions on the
merits of the dispute. The mediator assists the parties in identifying
areas of agreement and encourages the parties to explore potential
options toward resolution.
Participant means any individual or entity who has applied for, or
whose right to participate in or receive, a payment or other benefit in
accordance with any program administered by NRCS to which the
regulations in this part apply and is affected by a decision of NRCS.
The term does not include those individuals or entities excluded in the
definition of participant published at 7 CFR 11.1.
Preliminary technical determination means the initial written
decision by NRCS for a technical matter under HELC/WC which has not
become final under this part.
Program decision means a written decision by NRCS concerning
eligibility for program benefits, program administration, or program
implementation and based upon applicable regulations and program
instructions and not a technical determination made solely for the HELC/
WC provisions. Program decisions may include technical matters relative
to the specific conservation program. These are final decisions upon
receipt by the program participant.
Qualified mediator means a mediator who is accredited under State
law in those States that have a mediation program certified by USDA
pursuant to 7 CFR part 785, or in those States that do not have a
mediation program certified by USDA, an individual who has attended a
minimum of 40 hours of core mediator knowledge and skills training and,
to remain in a qualified mediator status, completes a minimum of 20
hours of additional training or education during each 2-year period.
Such training or education must be approved by USDA, an accredited
college or university, or one of the following organizations: State Bar,
a State mediation association, a State approved mediation program, or a
society of dispute resolution professionals.
Reconsideration means a subsequent consideration of a preliminary
technical determination by the designated
[[Page 476]]
conservationist or the State Conservationist.
Secretary means the Secretary of Agriculture.
State Conservationist means the NRCS official, or his or her
designee, in charge of NRCS operations within a State.
Title XII means Title XII of the Food Security Act of 1985, as
amended, 16 U.S.C. 3801 et seq.
Verbatim transcript means the official, written record of
proceedings of a hearing on a decision appealable under this part.
Sec. 614.3 Decisions subject to informal appeal procedures.
(a) This part applies to NRCS adverse program decisions and
technical determinations made with respect to:
(1) Conservation programs and regulatory requirements authorized
under Title XII, including:
(i) Conservation Security Program;
(ii) Conservation Stewardship Program;
(iii) Conservation Reserve Program and the Conservation Reserve
Enhancement Program;
(iv) Environmental Quality Incentives Program, including the
following:
(A) Agricultural Water Enhancement Program,
(B) Conservation Activity Plans,
(C) Colorado River Basin Salinity Control,
(D) Conservation Innovation Grants,
(E) Ground and Surface Water Conservation Program,
(F) Klamath Basin Program, and
(G) Organic Program Initiative;
(v) Farm and Ranch Land Protection Program;
(vi) Grassland Reserve Program;
(vii) Highly Erodible Land Conservation;
(viii) Wetland Conservation;
(ix) Wetlands Reserve Program and Wetlands Reserve Enhancement
Program; and
(x) Wildlife Habitat Incentive Program.
(2) Non-Title XII conservation programs or provisions, including:
(i) Agriculture Management Assistance Program;
(ii) Emergency Watershed Protection Program including Flood Plain
Easements;
(iii) Great Lakes Restoration Initiative;
(iv) Healthy Forest Reserve Program;
(v) Water Bank Program;
(vi) Watershed Protection and Flood Prevention Program; and
(3) Any other program to which this part is made applicable.
(b) With respect to matters identified in paragraph (a) of this
section, participants may appeal adverse decisions concerning:
(1) Denial of participation in a program;
(2) Compliance with program requirements;
(3) Issuance of payments or other program benefits to a participant
in a program;
(4) Technical determinations made under Title XII HELC/WC
provisions;
(5) Technical determinations or program decisions that affect a
participant's eligibility for USDA program benefits;
(6) The failure of an NRCS official issue a technical determination
or program decision subject to this part (``failure to act''); and
(7) Incorrect application of general policies, statutory or
regulatory requirements.
(c)(1) Only a participant directly affected by a program decision or
a technical determination made by NRCS may invoke the informal appeal
procedures contained in this part.
(2) In order for the appeal request to be effective, the participant
must personally make a written request for appeal that is signed by the
participant identified in paragraph (c)(1) no later than 30 days after
receipt of the adverse decision.
(d) Appeals of adverse final technical determinations and program
decisions subject to this part are also covered by the NAD rules of
procedure, set forth at 7 CFR part 11, and by the FSA county committee
appeals process, set forth at 7 CFR parts 11 and 780 for informal
appeals of Title XII decisions.
[[Page 477]]
Sec. 614.4 Decisions not subject to informal appeal procedures.
(a) Decisions that are not appealable under this part include:
(1) Any general program provision, program policy, or any statutory
or regulatory requirement that is applicable to all similarly situated
participants, such as:
(i) Program application ranking criteria;
(ii) Program application screening criteria;
(iii) Published soil surveys; or
(iv) Conservation practice technical standards included in the local
field office technical guide or the electronic FOTG (eFOTG).
(2) Mathematical or scientific formulas established under a statute
or program regulation and a program decision or technical determination
based solely on the application of those formulas;
(3) Decisions made pursuant to statutory provisions or implementing
regulations that expressly make agency program decisions or technical
determinations final;
(4) Decisions that are based on technical information provided by
another Federal or State agency, e.g., lists of endangered and
threatened species;
(5) Corrections by NRCS of errors in data entered on program
contracts, easement documents, loan agreements, and other program
documents; or
(6) Decisions issued by the Office of the General Counsel, in the
exercise of authority delegated to it by the Attorney General,
concerning the application of real property title standards issued by
the Attorney General.
(b) Complaints involving discrimination in program delivery are not
appealable under this part and are handled under the existing USDA civil
rights rules and regulations.
(c) Appeals related to contractual issues that are subject to the
jurisdiction of the Civilian Board of Contract Appeals are not
appealable under the procedures within this part.
(d) Where NRCS is unable to fund an application for program
participation due to a lack of funds. The agency may not deny appeal of
the underlying computations used to rank and prioritize the application.
Sec. 614.5 Reservation of authority.
The Secretary of Agriculture, Chief of NRCS, if applicable, or
designee, reserves the right to make a determination at any time on any
question arising under the programs covered under this regulation within
their respective authority, including reversing or modifying in writing,
with sufficient reason given therefore, any program decision or
technical determination made by an NRCS official.
Sec. 614.6 Agency records and decision notices.
(a) All NRCS decisions under this part are based upon an agency
record. NRCS will supplement the agency record, as appropriate, during
the informal appeals process.
(b) NRCS notifies participants of the agency's preliminary and final
technical determinations and program decisions through decision notices.
By certified mail, return receipt requested, NRCS will send to the
participant a decision notice within 10 working days of rendering a
technical determination or program decision. In lieu of certified mail,
NRCS may hand deliver notices to participants with written
acknowledgment of delivery by the participant. Each decision notice
contains the following:
(1) The factual basis for the technical determination or program;
(2) The regulatory, statutory, or policy basis for the technical
determination or program decision; and
(3) Information regarding any informal appeal rights available under
this part; the process for requesting such appeal; and the procedure for
requesting further review before the FSA county committee pursuant to 7
CFR part 780 or NAD pursuant to 7 CFR part 11.
Sec. 614.7 Preliminary technical determinations.
(a) A preliminary technical determination is limited to those
determinations made pursuant to the HELC/WC provisions (16 U.S.C. 3801,
et seq.) and becomes final 30 days after the participant receives the
decision, unless the participant files an appeal with the appropriate
NRCS official as indicated in the decision notice requesting:
[[Page 478]]
(1) Reconsideration with a field visit, office visit, or other
designated location meeting site in accordance with paragraphs (b) and
(c) of this section; or
(2) Mediation as set forth in Sec. 614.11.
(b)(1) If the participant requests reconsideration with a field
visit, office visit, or other location visit, the designated
conservationist, participant, and at the option of the conservation
district, a district representative will make a field or office visit
for the purpose of gathering additional information and discussing the
facts relating to the preliminary technical determination. The
participant may also provide any additional documentation to the
designated conservationist.
(2) Within 15 days of the field or office visit, the designated
conservationist, based upon the agency record as supplemented by the
field visit and any participant submissions, will reconsider his or her
preliminary technical determination.
(3) If the reconsidered determination is no longer adverse to the
participant, the designated conservationist will issue the reconsidered
determination as a final technical determination.
(4) If the preliminary technical determination remains adverse, then
the designated conservationist will forward the revised decision and
agency record to the State Conservationist for a final determination
pursuant to paragraph (c) of this section, unless further appeal is
waived in writing by the participant in accordance with paragraph (d) of
this section.
(c) The State Conservationist will issue a final technical
determination to the participant as soon as is practicable after
receiving the reconsideration and agency record from the designated
conservationist. The technical determination issued by the State
Conservationist becomes a final NRCS technical determination upon
receipt by the participant. Receipt triggers the running of the 30-day
timeframe to appeal to NAD, or if applicable, to the FSA county
committee.
(d) In order to address application needs or resource issues on the
ground immediately (expedited finality), a participant may waive, in
writing to the State Conservationist, the reconsideration rights stated
in paragraph (a) of this section so that a preliminary technical
decision becomes final before the expiration of the 30-day appeal
period.
Sec. 614.8 Final technical determinations.
(a) Preliminary HELC/WC technical determinations become final and
appealable:
(1) Thirty days after receipt of the preliminary technical decision
by the participant unless the determination is appealed in a timely
manner as provided for in this regulation.
(2) Thirty calendar days after the beginning of a mediation session
if a mutual agreement has not been reached by the parties; or
(3) Upon receipt by the participant of the final technical
determination issued on reconsideration as provided in Sec. 614.7(c).
(b) The participant may appeal the final technical determination
issued under the HELC/WC provisions to:
(1) The FSA county committee pursuant to 7 CFR part 780; or
(2) NAD pursuant to 7 CFR part 11.
Sec. 614.9 Program decisions.
(a) Program decisions are final upon receipt of the program decision
notice by the participant. Program decisions include all decisions
issued by NRCS for programs that NRCS administers separate from the
HELC/WC provisions. The participant has the following options for appeal
of the program decision:
(1) An informal hearing before NRCS as provided for in paragraph (b)
through paragraph (d) of this section;
(2) Mediation as provided for in Sec. 614.11;
(3) An informal hearing before the FSA county committee pursuant to
7 CFR part 780 if the program decision is made under Title XII; or
(4) A hearing before NAD pursuant to 7 CFR part 11.
(b) A program participant must file an appeal request for a hearing
with the appropriate State Conservationist as indicated in the decision
notice within 30 calendar days from the date the participant received
the program decision.
[[Page 479]]
(c) The State Conservationist may accept a hearing request that is
untimely filed under paragraph (b) of this section if the State
Conservationist determines that circumstances warrant such an action.
(d) The State Conservationist will hold a hearing no later than 30
days from the date the appeal request was received. The State
Conservationist will issue a written final decision no later than 30
days from the close of the hearing.
(e) NRCS will provide notice of the right to appeal to NAD on
program decisions when equitable relief is denied by the Chief or the
State Conservationist.
Sec. 614.10 Appeals before the Farm Service Agency county committee.
(a) In accordance with 7 CFR part 780, a participant may appeal a
final technical determination or a program decision to the FSA county
committee for those decisions made under Title XII.
(b) When the FSA county committee hearing the appeal requests review
the technical determination by the applicable State Conservationist
prior to issuing their decision, the State Conservationist will:
(1) Designate an appropriate NRCS official to gather any additional
information necessary for review of the technical determination;
(2) Obtain additional oral and documentary evidence from any party
with personal or expert knowledge about the facts under review; and
(3) Conduct a field visit to review and obtain additional
information concerning the technical determination.
(c) After the actions set forth in paragraphs (b)(1) through (3) of
this section are completed, provide the FSA county committee with a
written technical determination in the form required by Sec. 614.6(b)(1)
through (2) as well as a copy of the agency record.
Sec. 614.11 Mediation.
(a) A participant who wishes to pursue mediation must file a request
for mediation under this part with the official designated in the
decision notice no later than 30 days after the date on which the
decision notice was received. Participants in mediation are normally
required to pay fees established by the mediation program.
(b) A dispute will be meditated by a qualified mediator as defined
at Sec. 614.2(n).
(c) The parties will have 30 days from the date of the first
mediation session to reach a settlement agreement. This date can be
extended upon agreement of the parties. The mediator will notify the
State Conservationist whether the parties have reached an agreement.
(d) Settlement agreement reached during, or as a result of, the
mediation process must be in writing, signed by all parties to the
mediation, and comply with the statutory and regulatory provisions and
policies governing the program. In addition, the participant must waive
all appeal and judicial rights as to the issues resolved by the
settlement agreement.
(e) At the outset of mediation, the parties must agree to mediate in
good faith. NRCS demonstrates good faith in the mediation process by,
among other things:
(1) Designating an NRCS representative in the mediation;
(2) Making pertinent records available for review and discussion
during the mediation; and
(3) To the extent the NRCS representative does not have authority to
bind the agency, directing the NRCS representative to forward, in a
timely manner, any written agreement proposed in mediation to the
appropriate NRCS official for consideration.
(f) Mediator impartiality. (1) No person may serve as mediator in an
adverse program dispute who has previously served as an advocate or
representative for any party in the mediation.
(2) No person serving as mediator in an adverse program dispute may
thereafter serve as an advocate for a participant in any other
proceeding arising from or related to the mediated dispute including,
without limitation, representation of a mediation participant before an
administrative appeals entity of USDA or any other Federal agency.
(g) Confidentiality. Mediation is a confidential process except for
those limited exceptions permitted by the Administrative Dispute
Resolution Act
[[Page 480]]
at 5 U.S.C. 574. As a condition of participation, the participants and
any interested parties joining the mediation must agree to the
confidentiality of the mediation process. The mediator will not testify
in administrative or judicial proceedings concerning the issues
discussed in mediation, nor submit any report or record of the mediation
discussions, other than the mediation agreement or the mediation report,
except as required by law.
Sec. 614.12 Transcripts.
(a) No recordings will be made of any informal hearing conducted
under Sec. 614.9. In order to obtain an official record of a hearing, a
participant may obtain a verbatim transcript as provided in paragraph
(b) of this section.
(b) Any party to an informal hearing appeal under Sec. 614.9 may
request that a verbatim transcript is made of the hearing proceedings
and that such transcript is made the official record of the hearing. The
party requesting a verbatim transcript must pay for the transcription
service and provide a copy of the transcript to NRCS at no charge.
Sec. 614.13 Appealability review.
If NRCS states that a decision is not adverse to the individual
participant, and thus, no right to appeal exists, NRCS will notify the
participant that he may seek review of that determination from the NAD
Director.
Sec. 614.14 Computation of time.
(a) The word ``days'' as used in this final rule means calendar
days, unless specifically stated otherwise.
(b) Deadlines for any action under this part, including deadlines
for filing and decisions which fall on a Saturday, Sunday, Federal
holiday, or other day on which the relevant NRCS office is closed during
normal business hours, will be extended to close of business the next
working day.
Sec. 614.15 Implementation of final NAD determinations.
(a) No later than 30 days after a NAD determination becomes a final
administrative decision of USDA, NRCS will implement the determination.
(b) Biannually, NRCS must file a report on the status of
implementation of final administrative determinations in accordance with
section 14009 of the 2008 Farm Bill.
Sec. 614.16 Participation of third parties in NRCS proceedings.
When an appeal is filed under this part, NRCS will notify any third
party whose interests may be affected of the right to participate as an
appellant in the appeal. If the third party declines to participate,
then NRCS' decision will be binding as to that third party as if the
party had participated. If a formal hearing is conducted by NAD, third
party issues will be decided by NAD.
Sec. 614.17 Judicial review.
A participant must receive a final determination from NAD pursuant
to 7 CFR part 11 prior to seeking judicial review in any U.S. District
Court of competent jurisdiction.
[[Page 481]]
SUBCHAPTER C_WATER RESOURCES
PART 621_RIVER BASIN INVESTIGATIONS AND SURVEYS
Subpart A_General
Sec.
621.1 Purpose.
621.2 Scope.
Subpart B_USDA Cooperative Studies
621.10 Description.
621.11 Who may obtain assistance.
621.12 How to request assistance.
621.13 Conditions for approval.
621.14 Recipient responsibility.
Subpart C_Floodplain Management Assistance
621.20 Description.
621.21 Who may obtain assistance.
621.22 How to request assistance.
621.23 Conditions for approval.
621.24 NRCS responsibility.
621.25 Recipient responsibility.
Subpart D_Joint Investigations and Reports With the Department of the
Army
621.30 Description.
621.31 Who may request assistance.
621.32 How to request assistance.
621.33 Conditions for approval.
621.34 Recipient responsibility.
Subpart E_Interagency Coordination
621.40 Participation in Federal interagency policy activities at the
national level.
621.41 Participation in Federal-State policy and planning activities at
the regional level.
621.42 Federal-State compacts.
621.43 Interstate compacts and commissions.
621.44 Special studies.
621.45 Flood insurance studies.
Authority: Sec. 6 (Pub. L. 83-566) 68 Stat. 666 (16 U.S.C. 1006).
Source: 48 FR 18788, Apr. 26, 1983, unless otherwise noted.
Subpart A_General
Sec. 621.1 Purpose.
This part describes policies, requirements, and procedures governing
the Department of Agriculture's (USDA's) investigations and surveys of
watersheds of rivers and other waterways as a basis for developing
coordinated programs. These activities are undertaken in cooperation
with other Federal, State, and local agencies. The delegation of
authority to the Natural Resources Conservation Service (NRCS) to
provide national leadership for the conservation, development, and
productive use of the Nation's soil, water, and related resources,
including the activities treated in this part is found at Sec. 2.62 of
this title.
Sec. 621.2 Scope.
USDA river basin activities include:
(a) Cooperative river basin surveys in coordination with Federal,
State, and local agencies;
(b) Floodplain management assistance in coordination with the
responsible State agency and involved local governments;
(c) Joint investigations and reports with the Department of the Army
under Pub. L. 87-639, 76 Statute 438 (16 U.S.C. 1009); and
(d) Interagency coordination of water resources activities.
Subpart B_USDA Cooperative Studies
Sec. 621.10 Description.
Cooperative river basin studies provide USDA planning assistance to
Federal, State, and local governments. The purpose of these studies is
to assist in appraising water and related land resources; defining and
determining the extent of the problems; and formulating alternative
plans, including land treatment, nonstructural or structural measures,
or combinations thereof, that would solve existing problems or meet
existing and projected needs. These studies concentrate on specific
objectives identified by the requesting agencies and citizen groups that
are consistent with USDA authorities and responsibilities and current
NRCS priorities. The objectives ordinarily include the formulation of a
plan but may require only inventories of available resources and
associated problems to be used by other agencies in plan
[[Page 482]]
formulation. USDA assistance is provided through field advisory
committees composed of representatives of the Economic Research Service,
Forest Service, and NRCS. The NRCS representative chairs the field
advisory committee.
Sec. 621.11 Who may obtain assistance.
Assistance is available to conservation districts, communities.
county governments, regional planning boards, other planning groups, and
State and Federal agencies. Local groups express their desires for a
cooperative study to the governor or appropriate State agency.
Sec. 621.12 How to request assistance.
For a cooperative study a governor, or a Federal, State, or local
government agency must submit a written request and a Proposal to Study
(PTS) through the NRCS State Conservationist to the Chief. Assistance in
preparing the proposal may be obtained by contacting the State
Conservationist. The State Conservationist sends the request and
proposal with comments to the Chief for consideration. The proposal
should:
(a) Describe the basin or study area, including a map of the study
area;
(b) Explain the need for the study;
(c) Explain the need for USDA participation;
(d) State the responsibility and authority of the requesting agency
in the study;
(e) Estimate the extent of participation of other Federal and State
agencies;
(f) Discuss views and priorities of affected soil conservation
districts regarding the proposed study;
(g) Briefly describe the intended management organization of the
study;
(h) Specifically describe the expected results of the study;
(i) Identify primary users of the study results and the manner in
which the results will be used;
(j) State the relationship of the study to ongoing and completed
river basin studies;
(k) State that procedures for informing clearinghouses and for
eliciting public participation will be followed;
(l) Estimate the duration and scope of the study; and
(m) Estimate the study costs by year and agency.
Sec. 621.13 Conditions for approval.
The Chief may authorize requested cooperative studies recommended by
the State Conservationist. Priority for starting cooperative studies is
based on the date of application, the readiness of the requesting agency
to begin participation, the importance and significance of problems to
be studied, the monetary or in-kind contributions toward the study, the
sequence of ongoing and future studies, the type of study, the duration
of study, the cost of study, the potential for implementation and other
factors affecting the effectiveness and efficiency of the study. The
number and location of cooperative studies started each year are
governed by the availability of USDA funds and personnel.
Sec. 621.14 Recipient responsibility.
Leadership in arrangements for other needed Federal, State, and
local agency participation is responsibility of the requesting agency.
Consistent with national objectives and NRCS policy and procedures, the
requesting agency has leadership responsibility for developing specific
study objectives, providing the necessary study organization, and
ensuring public participation in the planning process.
Subpart C_Floodplain Management Assistance
Sec. 621.20 Description.
Floodplain management studies provide needed information and
assistance to local and State entities so that they can implement
programs for reducing existing and future flood damages in rural and
urban communities. Assistance is targeted to communities where flood
damage is a serious concern and local governments are sincerely
interested in taking action to reduce damage.
Sec. 621.21 Who may obtain assistance.
Assistance is available to conservation districts, communities,
county
[[Page 483]]
governments, regional planning boards, other planning groups, and State
and Federal agencies.
Sec. 621.22 How to request assistance.
(a) A conservation district, local community or other jurisdiction
may request floodplain management assistance for a local area for which
they are responsible, by letter to the governor or the agency of State
government responsible for floodplain management activities. Assistance
in making application may be obtained by contacting any NRCS office.
(b) The governor or his designee may request floodplain management
assistance for the State by submitting a written request to the State
Conservationist.
Sec. 621.23 Conditions for approval.
(a) USDA floodplain management studies are authorized by the
Director of the Basin and Area Planning Division. Priority for starting
floodplain management studies is based on the same factors as for USDA
Cooperative Studies as described in Sec. 621.13.
(b) A study for an individual community may be started upon
completion of a plan of work in which the Director of the Basin and Area
Planning Division concurs and for which funds are available. Preparation
of the plan of work is the responsibility of and must be approved by the
applicant, the responsible State agency, and the State Conservationist.
The plan sets forth the responsibilities of the applicant, the State,
and USDA in carrying out the study and interpreting and using the data
in a local floodplain management program. The State agency responsible
for floodplain management activities may establish priorities on which
to base the sequence of approval of floodplain management studies within
its State. The number of studies started each Federal fiscal year is
governed by the availability of funds and personnel and the amount of
State and local assistance available.
(c) States and communities are encouraged to make monetary or in-
kind contributions toward the floodplain management study. The State and
local share may reflect in-kind contributions in lieu of fund transfers.
Sec. 621.24 NRCS responsibility.
NRCS is responsible for providing leadership for scheduling and
implementing the technical phases of the studies and preparing the
reports. NRCS assists in interpreting the study results.
Sec. 621.25 Recipient responsibility.
The State agency is responsible for developing State priorities for
floodplain management studies and coordinating this work with related
activities in the State. The cooperating local government entity is
responsible for obtaining permission for carrying out field surveys. The
State and local participants assist in distributing and interpreting the
report and providing public information and educational services.
Subpart D_Joint Investigations and Reports With the Department of the
Army
Sec. 621.30 Description.
(a) As provided by Pub. L. 87-639, joint investigations and reports
by USDA and the Department of the Army may be authorized by resolutions
adopted by the Committee on Environment and Public Works of the U.S.
Senate or the Committee on Public Works and Transportation of the U.S.
House of Representatives for any watershed area in the 50 States, the
Commonwealth of Puerto Rico, and the U.S. Virgin Islands if the nature
of the watershed area problems dictates need for a joint effort by the
two Departments.
(b) Authorized joint investigations and reports are made to
determine works of improvement needed in the study area for flood
prevention; for the conservation, development, use, and disposal of
water; for flood control; for the conservation and proper use of land;
and for allied purposes. The joint report to Congress may include a
water and related land resources plan recommended for implementation.
Such an implementation plan must be accompanied by an environmental
impact statement (EIS) and must be in sufficient detail to permit its
implementation.
[[Page 484]]
(c) As mutually agreed by USDA and the Department of the Army Corps
of Engineers, the report and EIS are forwarded to Congress through
appropriate channels after technical, public, and interagency reviews in
accordance with NRCS policy as described in Sec. 622.34, or in
accordance with the Corps of Engineers' policy concerning technical and
public review. Implementation of these plans is contingent on
congressional action.
Sec. 621.31 Who may request assistance.
Any organization, group, or State or local government may request
assistance.
Sec. 621.32 How to request assistance.
Applicants for a joint investigation and report should request their
congressional representative(s) to initiate appropriate action under
Pub. L. 87-639.
Sec. 621.33 Conditions for approval.
A joint investigation and report is authorized by a resolution of
the Committee on Environment and Public Works of the U.S. Senate or the
Committee on Public Works and Transportation of the U.S. House of
Representatives. Studies are initiated when funds for them are
appropriated by the Congress.
Sec. 621.34 Recipient responsibility.
Participating local and State governments work with USDA and the
Department of the Army representatives in developing objectives,
collecting data, analyzing problems, planning and formulating proposals,
and considering financial plans. Active public participation is
solicited in the planning process through means such as questionnaires,
public meetings, citizen advisory boards, and technical committees.
Subpart E_Interagency Coordination
Sec. 621.40 Participation in Federal interagency policy activities at
the national level.
(a) Policy development in water and related land resources is
coordinated at the Federal level through the Cabinet Council on Natural
Resources and Environment. NRCS provides staff support and
representation in these activities as requested.
(b) Within the Department, all interested USDA agencies participate
in water policy development through the USDA Committee on Natural
Resources and Environment and the Water Issues Work Group.
(c) NRCS provides appropriate staff support when requested for
committees, work groups, and task forces established for interagency
coordination of water resources related activities of Federal agencies.
Sec. 621.41 Participation in Federal-State policy and planning
activities at the regional level.
(a) NRCS has a responsibility to represent the Department when
needed to assist regional water planning entities and interagency
committees which coordinate water resources planning activities.
(b) For the Arkansas-White-Red Basin Interagency Committee (AWRBIAC)
and the Pacific Southwest Interagency Committee (PSIAC), the USDA member
periodically serves as chairperson and provides an executive secretary.
For the Southeast Basin Interagency Committee (SEBIAC), NRCS
periodically provides an executive secretary for the chairperson, who is
a State government official.
(c) Under the leadership of NRCS, other USDA agencies, principally
the Forest Service and Economic Research Service, also participate.
Sec. 621.42 Federal-State compacts.
NRCS is designated to represent USDA in assisting the U.S.
Commissioners of the Delaware River Basin Commission and the Susquehanna
River Basin Commission. In carrying out this responsibility, NRCS
provides a liaison officer to work with the U.S. Commissioners on policy
level matters, as well as providing the USDA representatives on the
Federal field committees to assist the Commissioners.
Sec. 621.43 Interstate compacts and commissions.
As assigned, an NRCS State Conservationist is the USDA point of
contact for governing bodies of interstate compacts and commissions
concerned
[[Page 485]]
with the conservation, development, and proper use of water, soil, and
related resources.
Sec. 621.44 Special studies.
As designated, NRCS represents USDA on special study groups such as
for the Colorado River Basin Salinity Control Program Studies.
Sec. 621.45 Flood insurance studies.
As requested by the Federal Emergency Management Agency (FEMA), and
within the limits of available resources, NRCS carries out flood
insurance studies of various types under the National Flood Insurance
Program (Pub. L. 90-448, 82 Statute, 574 (42 U.S.C. 4012)), as amended.
In this activity, NRCS performs detailed technical studies to determine
the extent and frequency of flooding. The flood insurance program is
administered by FEMA. NRCS is reimbursed by that agency for actual costs
incurred in carrying out the studies. Local entities desiring flood
insurance coverage should contact the responsible State agency or FEMA
and apply in accordance with procedures of that agency.
PART 622_WATERSHED PROJECTS
Subpart A_General
Sec.
622.1 Purpose.
622.2 Scope.
622.3 Relationship to the Pub. L. 78-534 Program.
622.4 Relationship to other agencies.
622.5 Guidelines.
622.6 Equal opportunity.
622.7 Notification under Executive Order 12372.
Subpart B_Qualifications
622.10 Sponsors.
622.11 Eligible watershed projects.
Subpart C_Application Procedure
622.20 Application.
622.21 State agency approval.
Subpart D_Planning
622.30 General.
622.31 Basic planning efforts.
622.32 Reviews and approvals.
Authority: Pub. L. 83-566, 68 Stat. 666 as amended (16 U.S.C. 1001,
et seq.); Pub. L. 78-534, 58 Stat. 889, 33 U.S.C. 701b-1.
Source: 49 FR 6078, Feb. 17, 1984, unless otherwise noted.
Subpart A_General
Sec. 622.1 Purpose.
This part sets forth the general policies for planning and carrying
out watershed projects under Pub. L. 83-566, 68 Stat. 666 (16 U.S.C.
1001 et seq.) and flood prevention projects under Pub. L. 78-534, 58
Stat. 889 (33 U.S.C. 701b-1).
Sec. 622.2 Scope.
(a) To assist sponsors in preparing and carrying out watershed
plans, the Natural Resources Conservation Service (NRCS) shall conduct
investigations and surveys, with the cooperation and assistance of other
Federal agencies, to:
(1) Determine the extent of watershed problems and needs, and
(2) Set forth viable alternative solutions consistent with local,
regional, and national objectives, including an alternative solution
which makes the greatest net contribution to national economic
development.
(b) Alternatives will consist of either land treatment,
nonstructural or structural measures, or combinations thereof that will
help accomplish one or more of the authorized project purposes.
(c) Authorized project purposes are watershed protection,
conservation and proper utilization of land, flood prevention,
agricultural water management including irrigation and drainage, public
recreation, public fish and wildlife, municipal and industrial water
supply, hydropower, water quality management, ground water supply,
agricultural pollution control, and other water management.
(d) After a final plan for works of improvement is agreed upon
between NRCS and the sponsors and the approval processes are completed,
NRCS will provide technical and financial assistance to install the
project, subject to the availability of funds and the budgeting and
fiscal policies of the President.
[[Page 486]]
Sec. 622.3 Relationship to the Pub. L. 78-534 Program.
(a) General. The purposes and objectives of the programs under Pub.
L. 83-566 and Pub. L. 78-534 are the same in most cases. Planning
criteria, economic justification, local sponsorship, agency
participation, financial assistance, eligible measures, operation and
maintenance arrangements for the Pub. L. 78-534 program are consistent
with those of the Pub. L. 83-566 program. The differences with the Pub.
L. 78-534 program are outlined below.
(b) Initiation. Flood prevention projects are individually
authorized by Federal legislation. The state conservationist and the
sponsors agree on a plan of action and notify interested parties to
solicit their participation. The sponsors keep the public informed and
solicit their views and comments.
(c) Subwatershed plans. These plans are administratively approved by
the state conservationist. If the plan involves purposes other than
flood prevention, clearance must be obtained from the Office of
Management and Budget before approval. Financial assistance available
differs only in that program funds may be used for the purchase of land
rights for single-purpose flood prevention structures and installing
land treatment on Federal lands.
(d) Installation. NRCS shall award and administer contracts for the
installation of project measures unless the sponsors agree to perform
the work. Project agreements between the sponsors and NRCS are not
required if the work consists of flood prevention structures built and
funded by NRCS.
Sec. 622.4 Relationship to other agencies.
NRCS will coordinate responsibilities with other water and land
resource development agencies on projects that may come under the
jurisdictions of various authorities. This will include any land
management agencies which may have land which would be affected by
project measures. Coordination with the U.S. Department of the
Interior's Fish and Wildlife Service will be in accordance with section
12 of Pub. L. 83-566 (as amended).
Sec. 622.5 Guidelines.
Guidelines for carrying out programs authorized under Pub. L. 83-566
and Pub. L. 78-534 are contained in miscellaneous instructions, manuals,
and handbooks issued by the Natural Resources Conservation Service,
Regulations for Implementing NEPA (40 CFR parts 1500-1508) issued by the
Council on Environmental Quality, and in Economic and Environmental
Principles and Guidelines for Water and Related Land Resources
Implementation Studies issued by the Water Resources Council. Watershed
projects are to be planned and carried out in a way that will conform to
conditions mandated by the above and other applicable laws, Executive
orders, and codified rules.
Sec. 622.6 Equal opportunity.
The Pub. L. 83-566 and Pub. L. 78-534 programs will be conducted in
compliance with all requirements respecting nondiscrimination as
contained in the Civil Rights Act of 1964, as amended, and in the
regulations of the Secretary of Agriculture (7 CFR Part 15), which
provide that no person in the United States shall, on the grounds of
race, color, national origin, sex, age, handicap, or religion be
excluded from participation in, be denied the benefits of, or be
otherwise subjected to discrimination under any program or activity
conducted or assisted by the Department of Agriculture.
Sec. 622.7 Notification under Executive Order 12372.
This program is covered under Executive Order 12372,
``Intergovernmental Review of Federal Programs'' and 7 CFR Part 3015,
Subpart V, ``Intergovernmental Review of the Department of Agriculture
Programs and Activities.'' State processes or directly affected State,
areawide, regional and local officials and entities have 60 days for
comment starting from the date of submission of the application to the
State Single Point of Contact.
Subpart B_Qualifications
Sec. 622.10 Sponsors.
(a) Watershed projects are sponsored by one or more local
organizations
[[Page 487]]
qualifying as sponsors. All watershed plans shall be sponsored by
entities legally organized under State law or by any Indian tribe or
tribal organization having the authority to carry out, operate and
maintain works of improvement. Those plans that incorporate the use of
nonstructural or structural measures shall be sponsored by organizations
that, individually or collectively, have:
(1) The power of eminent domain,
(2) The authority to levy taxes or use other adequate funding
sources, including state, regional, or local appropriations, to finance
their share of the project cost and all operation and maintenance costs.
(b) To receive Federal assistance for project installation, sponsors
must commit themselves to use their powers and authority to carry out
and maintain the project as planned.
Sec. 622.11 Eligible watershed projects.
(a) To be eligible for Federal assistance, a watershed project must:
(1) Meet the definition of a watershed area as defined in NRCS's
National Watersheds Manual.
(2) Not exceed 250,000 acres in size.
(3) Not include any single structure that provides more than 12,500
acre-feet of floodwater detention capacity nor more than 25,000 acre-
feet of total capacity.
(4) Have significant land or water management problems that can be
solved or alleviated by measures for watershed protection, flood
prevention, drainage, irrigation, recreation, fish and wildlife,
municipal or industrial water supply, or other water management.
(5) Produce substantial benefits to the general public, to
communities, and to groups of landowners.
(6) Cannot be installed by individual or collective landowners under
alternative cost-sharing assistance.
(7) Have strong local citizen and sponsor support through agreement
to obtain land rights, contribute the local cost of construction, and
carry out operation and maintenance.
(b) Works and improvement that may be included in a watershed
project are those that:
(1) Contribute to reducing floodwater, erosion, and sediment
damages.
(2) Further the conservation, development, utilization, and disposal
of water and the conservation and proper utilization of land.
(3) Have the greatest net national economic benefits consistent with
protecting the Nation's environment (for structural water resource
projects) relative to alternative works, unless an exception is granted
by the Secretary.
Subpart C_Application Procedure
Sec. 622.20 Application.
Sponsors shall follow State developed procedures (based on Executive
Order 12372) for coordination of proposed Federal financial assistance
and also USDA's 7 CFR part 3015 in applying for Pub. L. 83-566
assistance. Standard forms for Federal assistance or other approved
forms may be obtained from NRCS State, area, or field offices. These
forms should be submitted to the Single Point of Contact in accordance
with the State developed procedures.
Sec. 622.21 State agency approval.
The governor or designated State agency will approve or disapprove
the application. If disapproved, no further action is required of NRCS.
If approved or not disapproved within 45 days, the application shall be
sent to the NRCS state conservationist. After the state conservationist
has determined that the application is legally valid, he will notify the
sponsor of receipt of the application. If found not legally valid, the
state conservationist will return it to the originator with an opinion.
Subpart D_Planning
Sec. 622.30 General.
(a) Watershed projects are to be planned and carried out in a way
that will (1) minimize all adverse impacts, and (2) mitigate unavoidable
losses to the maximum practicable degree. Projects must comply with the
requirements of the National Environmental Policy Act of 1969 (Pub. L.
91-190, 83 Stat. 852) (42 U.S.C. 4321 et seq.).
(b) Fish and Wildlife enhancement measures proposed by Federal or
State
[[Page 488]]
fish and wildlife agencies will be included if they are technically and
economically feasible and are acceptable to the sponsors and the NRCS.
If additional sponsors are needed to carry out the recommended fish and
wildlife measures, NRCS will assist fish and wildlife agencies in
attempting to obtain such sponsors.
(c) All planning efforts by NRCS and the sponsors must include well
publicized public meetings to obtain public input and views on the
project.
(d) Sponsors who receive financial assistance awarded after October
1, 2010, must comply with applicable registration and reporting
requirements of the Federal Funding Accountability and Transparency Act
of 2006 (Pub. L. 109-282, as amended), and 2 CFR parts 25 and 170.
[49 FR 6078, Feb. 17, 1984, as amended at 76 FR 19684, Apr. 8, 2011]
Sec. 622.31 Basic planning efforts.
Upon receipt of an application, the NRCS will make any necessary
field studies and develop a report to justify the need for planning
effort. Once planning is authorized by the Chief of NRCS, a watershed
plan-environmental impact statement (plan-EIS) or a watershed plan-
environmental assessment (plan-EA) will be prepared by NRCS to request
funding. This effort must be coordinated with other State and Federal
agencies.
Sec. 622.32 Reviews and approvals.
(a) The watershed plan-environmental impact statement (or
assessment) will be subject to internal technical reviews, sponsor and
other local party review, interagency review by other Federal, state,
and concerned groups, and a final review as stated in NRCS's National
Watersheds Manual.
(b) After thorough review by NRCS and other agencies, the NRCS and
the sponsors shall accept the plan-EIS or plan-EA by signing the
watershed agreement. The watershed plan must be approved by the
Committees of Congress or the Chief of NRCS. Funding for installation
can then be granted by the Chief of NRCS.
PART 623_EMERGENCY WETLANDS RESERVE PROGRAM
Sec.
623.1 Purpose and scope.
623.2 Definitions.
623.3 Eligible person.
623.4 Eligible land.
623.5 Ineligible land.
623.6 Transfer of lands from the CRP to the EWRP.
623.7 Terms of the easement.
623.8 Easement value.
623.9 Easement priority.
623.10 Application to participate.
623.11 Obligations of the landowner.
623.12 Payments to landowners by NRCS.
623.13 Wetland Reserve Plan of Operations.
623.14 Easement modifications.
623.15 Transfer of land.
623.16 Monitoring and enforcement of easement terms and conditions.
623.17 Violations and Remedies.
623.18 Access to land.
623.19 Assignments.
623.20 Appeals.
623.21 Scheme and device.
623.22 Filing of false claims.
Authority: 16 U.S.C. 3837-3837f; Pub. L. 103-75, Chapter 1, 107
Stat. 739, 742.
Source: 58 FR 62497, Nov. 29, 1993, unless otherwise noted.
Sec. 623.1 Purpose and scope.
(a) The regulations in this part set forth the policies, procedures,
and requirements for the Emergency Wetlands Reserve Program (EWRP).
Under the EWRP, NRCS will make offers to purchase wetland conservation
easements from persons owning croplands that were damaged by the 1993
Midwest floods if those lands have the potential for restoration to
wetland conditions and if the owner voluntarily agrees to restore and
maintain those conditions. The easements are to be purchased to promote
the restoration and maintenance of wetland characteristics, such as
hydrologic conditions of inundation or saturation of the soil and
hydrophytic vegetation. The functions and values of the wetlands for
wildlife habitat, water quality improvement, flood water retention,
floodway enhancement, ground water recharge, open space, aesthetic
values, and environmental education will thus be promoted. The wetland
conservation easements will permanently prohibit use of
[[Page 489]]
the affected land as cropland. Additionally, the easement shall require
permanent maintenance of the wetland conditions, except in the case of
natural disaster.
(b) The EWRP is available only in the following States: Illinois,
Iowa, Kansas, Minnesota, Missouri, Nebraska, South Dakota, and
Wisconsin. Certain cropland areas within these States have been
determined to have been inundated by the Midwest floods of 1993. As more
fully defined and described in this part, eligible land may include
farmed wetlands or prior converted wetlands (wetlands converted prior to
December 23, 1985), together with adjacent lands on which the wetlands
are functionally dependent so long as the likelihood of successful
restoration of such land and the potential wetland values merit
inclusion in the program with reasonable costs.
Sec. 623.2 Definitions.
The following definitions shall be applicable for the purposes of
this part:
(a) Agricultural commodity--means any crop planted and produced by
annual tilling of the soil, or on an annual basis by one trip planters,
or alfalfa and other multiyear grasses and legumes in rotation as
approved by the Secretary. For purposes of determining crop history, as
relevant to eligibility to enroll land in the program, land shall be
``considered planted to an agricultural commodity'' during a crop year
if, as determined by ASCS, as action of the Secretary prevented land
from being planted to the commodity during the crop year.
(b) Applicant--means a person who submits to NRCS an application to
participate in the EWRP.
(c) Commodity Credit Corporation--a wholly owned government
corporation within the U.S. Department of Agriculture.
(d) Conservation District (CD)--means a subdivision of a State or
local government organized pursuant to applicable State law to promote
soil and water conservation practices.
(e) Conservation Reserve Program--means the program under which
long-term payments and cost-share assistance is provided to individuals
to establish permanent vegetative cover on cropland that is highly
erodible or environmentally sensitive.
(f) Prior converted wetland--means wetland that has been drained,
dredged, filled, leveled, or otherwise manipulated (including any
activity that results in impairing or reducing the flow, circulation, or
reach of water) prior to December 23, 1985, for the purpose, or that has
the effect, of making the production of agricultural commodities
possible if such production would not have been possible but for such
action.
(g) Cost-share payment--means the payment made by NRCS to assist
program participants in establishing the practices required in a WRPO.
(h) Chief--means the Chief of the Natural Resources Conservation
Service, or the Chief's designee.
(i) Easement--means the real property interest acquired by NRCS
under this part for wetland restoration and maintenance and which is
properly filed with the appropriate local or State government official.
(j) Easement area--means the land to which the approved wetland
restoration practices and wetland conservation restrictions are to be
applied.
(k) Fair market value (FMV)--means the price that a willing seller
would accept and a willing buyer would pay in an open, informed
transaction.
(l) Farmed wetland--means wetland that was drained, dredged, filled,
or otherwise manipulated prior to December 23, 1985 to the extent that
the production of agricultural commodities was made possible, but which
continues to meet wetland criteria [refer to 7 CFR 12.32(a)(3) for
descriptions of farmed wetlands].
(m) Floodwater control systems--means dikes, levees, or other
similar structural measures for the protection of cropland from
flooding.
(n) FWS--means the Fish and Wildlife Service of the United States
Department of the Interior.
(o) Local NRCS office--means the office of the Natural Resources
Conservation Service serving the county or combination of counties in
which the landowner's farm or ranch is located.
(p) Participant--means a person(s) owning land subject to a
perfected
[[Page 490]]
easement purchased by the Natural Resources Conservation Service under
this part.
(q) Offer--means the total payment NRCS will make to a landowner to
purchase an easement.
(r) Permanent easement--means an easement in perpetuity.
(s) Substantially altered lands--means lands which have not been and
are not now wetlands but could likely develop wetland characteristics in
the future, as a result of the Midwest floods of 1993.
(t) Practice--means the wetland and easement area development
restoration measures agreed to in the WRPO to accomplish the desired
program objectives.
(u) Technical assistance--means the assistance provided to land
owners to facilitate implementation of the WRPO.
(v) Wetland--means land that (1) has a predominance of hydric soils;
(2) is inundated or saturated by surface or groundwater at a frequency
and duration sufficient to support a prevalence of hydrophytic
vegetation typically adapted for life in saturated soil conditions; and
(3) does support a prevalence of such vegetation under normal
circumstances.
Sec. 623.3 Eligible person.
To be eligible to participate in the EWRP, a person must be the
owner of eligible land for which enrollment is sought and must have been
the owner of such land for at least the preceding 12 months prior to the
time the enrollment offer is declared by NRCS, as provided in this part.
The person shall provide to NRCS adequate proof of ownership of the
land. NRCS may waive the 12 month ownership requirement if:
(a) The land was acquired by will or succession as a result of the
death of the previous owner; or
(b) Adequate assurances have been presented that the new owner of
such land did not acquire such land for the purpose of placing it in the
EWRP.
Sec. 623.4 Eligible land.
(a) Except as otherwise provided in this section, land is eligible
for enrollment in the EWRP only if NRCS determines that the land:
(1) Was inundated by the Midwest floods of 1993;
(2) If restored to productive condition, would have a fair market
value that is less than the estimated costs of restoring the land to
productive condition and repairing related floodwater control systems;
(3) Is likely to have its wetland value restored with minimal costs;
and
(4) Is wetland farmed under natural conditions, a farmed wetland or
prior converted wetland, or substantially altered lands which are
cropland; or
(5) Is wetland that has been restored on the land under a CRP
contract, or under a Federal or State wetland restoration program with
an easement for a period of less than 30 years.
(b) To be eligible for enrollment in the EWRP, land must also:
(1) Be determined by ASCS to have been annually planted or
considered planted to an agricultural commodity in at least 1 of the 5
previous crop years; or
(2) Be land under a CRP contract, in which case, the land need only
to have been planted to an agricultural commodity during 2 of the 1981
through 1985 crop years.
(c) Other lands may be considered eligible if the inclusion of such
lands in the EWRP easement would significantly add to the functions and
values of the wetlands to be restored under this part, as determined by
NRCS.
(d) The criteria and procedures contained in 7 CFR part 12 will be
used to identify wetlands, converted wetlands, and farmed wetlands.
Sec. 623.5 Ineligible land.
Notwithstanding any other provisions of this part, the following
land is not eligible for enrollment in the EWRP:
(a) Land that contains either timber stands or trees established in
connection with a CRP contract;
(b) Lands owned or acquired by an agency of the Federal Government;
(c) Land already subject to a deed restriction prohibiting the
production of agricultural commodities or the alternation of existing
wetland hydrologic conditions;
(d) Land located between the pre-flood mainstem levees and the
river; or
[[Page 491]]
(e) Land that was restored to wetland conditions, as required under
Part 12 of this title, to mitigate the conversion of wetland to cropland
use.
Sec. 623.6 Transfer of lands from the CRP to the EWRP.
Land that is subject to an existing CRP contract administered under
7 CFR parts 704 and 1410 may be transferred into the EWRP only if:
(a) The land and landowner(s) meet the requirements of this part;
and
(b) The application for transfer into the EWRP is approved by
Commodity Credit Corporation (CCC), if found to be in the interest of
the program. If such transfer is requested by the owner and approved by
CCC, the CRP contract for the property will be terminated or otherwise
modified subject to such terms and conditions as are mutually agreed by
the landowner, CCC, and NRCS.
Sec. 623.7 Terms of the easement.
Landowners will grant to NRCS an easement which shall run with the
land and be in favor of NRCS and its assigns or delegates. The easement
shall require the land to be monitored as specified by the WRPO to
promote the purposes of this part, including but not limited to
maintenance of the restored wetland for entire length of the easement.
Such easement shall: (a) be a permanent reserve interest easement; (b)
require that the maintenance of the land be in accordance with the terms
of the easement and with the terms of the WRPO and shall be the
responsibility of the owners of the property and their successors of any
kind, including, but not limited to, the owners' heirs and assigns; (c)
grant to NRCS a right of access in favor of NRCS and its delegates,
assigns and successors of any kind, to the portion of the property which
is subject to the provisions of the easement. Maintenance of such access
shall be the responsibility of the owner and their successors of any
kind; (d) reserve to NRCS the right to permit such compatible uses of
the easement area as may be identified in the WRPO; (e) reserve to the
landowner those compatible uses identified in the WRPO that are
permitted to be pursued by the landowner; (f) be signed by each person
with an interest of any kind in the land covered by the easement; (g)
permanently prohibit use of the easement area for cropland, except to
harvest an agricultural commodity planted before the easement is
perfected; and (h) require permanent maintenance of the wetland
conditions, except in the case of natural disaster.
Sec. 623.8 Easement value.
NRCS offers for easements will be based on the fair market value, as
determined by the NRCS State Conservationist, of the land covered by the
easements. Fair market value will be based on post-flood conditions as
if reclaimed. Land easement values will be determined by the State
Conservationist in consultation with a technical committee. A technical
committee shall included representatives of: ASCS, Extension Service,
and FWS. Additionally, the State Conservationist may collect information
from other sources as he deems necessary. Coordination between States
will be provided by the Chief, NRCS.
Sec. 623.9 Easement priority.
The State Conservationist, in consultation with the FWS and with
input from a technical committee and other interested Federal agencies,
will establish a ranking process to establish the priority of parcels
offered into the EWRP. This process will rank the floodway enhancement
and environmental benefits per dollar of government expenditure on
restoration and easement purchase. The factors for determining the
priority for selection will consider the following:
(a) Protection and enhancement of habitat for migratory birds and
wildlife, including the contribution the restoration may make to the
recovery of threatened and endangered species,
(b) Floodway expansion,
(c) Proximity to other protected wetlands,
(d) Level of hydrology restored,
(e) Wetland function or values,
(f) Likelihood of successful restoration of wetland values,
(g) Cost of restoration and easement purchase, and
(h) Other factors as determined appropriate by NRCS.
[[Page 492]]
Sec. 623.10 Application to participate.
(a) A person seeking to enroll land in the EWRP must apply for
enrollment on an approved NRCS form. The application to participate must
be filed with the local NRCS field office during an announced period for
such submissions.
(b) A person submitting an application to participate shall not be
obligated to accept an NRCS offer to purchase an easement if one is
forthcoming.
(c) An application to participate must be signed by all owners of
the property or their duly authorized representative(s).
Sec. 623.11 Obligations of the landowner.
(a) All owners of land who accept an EWRP offer from NRCS shall:
(1) Comply with the terms of the easement.
(2) Comply with all terms and conditions of the WRPO for the full
life of the easement.
(3) Ensure that the easement granted to NRCS is superior to the
interest of all other parties who may have an interest in the easement
area, except as authorized by NRCS. Such action shall include, but not
be limited to, obtaining a written statement of consent to such a
superior easement from those holding a security interest or any other
encumbrance or the land covered by the easement. Additionally, the
landowner shall perfect the easement with superior NRCS interest in
accordance with State law.
(4) Agree to the permanent retirement of the aggregate total of crop
acreage bases, and allotment and mandatory quota on the farm or ranch in
order to maintain the base allotment on quota acres at or below the
number of acres of cropland after the easement has been perfected.
(5) Not allow grazing or commercial use of the land covered by an
easement except as provided for in the WRPO, or harvesting of any
agricultural commodity produced on the land subject to the EWRP
easement.
(6) Comply with Federal or State noxious week laws in the manner
specified in the WRPO.
(7) Control other identified weed and pest species, in the manner
specified in the WRPO.
(8) Be responsible for repairs, improvements, and inspections of the
WRPO practices as necessary to maintain existing public drainage systems
when the land is restored to the condition required by the terms of the
easement, the contract, and the easement.
(9) Be permitted to control public access, in accordance with the
WRPO, on the land enrolled in the program.
(10) Implement any additional provisions that are required by NRCS
in consultation with FWS in the contract, WRPO, or easement, in order
to, as determined by NRCS, facilitate the administration of the EWRP.
(11) Not alter the vegetation, except to harvest already planted
crops or forage, or hydrology on such acres subsequent to perfection of
the easement by the landowner, except as provided for in the easement or
WRPO.
(12) Be responsible for the long-term management of the easement in
accordance with the terms of the easement and related agreements
including the WRPO. Owners may enter into agreements with Federal or
State agencies or private organizations to assist in the management of
the easement area. No NRCS funds will be provided to these agencies or
organizations for management expenses. Responsibility for management of
the easement shall in all cases remain with the owner and the owner's
successors of any kind regardless of whether arrangements are made for
third-party management.
(13) Agree that each person with an interest in the land covered by
an easement under EWRP shall be jointly and severally responsible for
compliance with the WRPO, the easement, the provisions of this part, and
for any refunds or payment adjustment which may be required for
violation of any terms or conditions of the WRPO, the easement, or
provisions of this part.
(14) Refrain from taking any action on the easement area unless
specifically authorized in the reserve interest easement or the WRPO;
and
(15) Secure any necessary local, State and Federal permits prior to
commencing restoration of the designated area.
(b) In addition, program participants and their successors of any
kind may:
[[Page 493]]
(1) Not alter wildlife habitat and other natural land features of
the enrolled land unless authorized by the WRPO.
(2) Apply pesticides or fertilizers on enrolled land or mow such
land, only as provided for in the WRPO.
(3) Not engage in any activities on other land on the farm on which
the easement exists that will, as determined by NRCS; (i) alter the flow
of surface or subsurface water into or out of the easement area except
as specified in the WRPO; or (ii) be otherwise inconsistent with the
terms of the easement.
(c) The activities of any person on the property shall be considered
for purposes of this section to be the actions of the program
participant. However, if the NRCS determines that the activities of the
person were beyond the control of the program participants, NRCS may
adjust the remedies provided for in this part to the extent determined
consistent with program goals. Obligations created by the easement shall
run with the land and shall bind all persons having an interest in the
property at any time whether such interest is created by death of the
owner, sale, assignment, or otherwise.
Sec. 623.12 Payments to landowners by NRCS.
(a) NRCS will share the cost with landowners of rehabilitating the
enrolled land in the EWRP as provided in the WRPO. The amount of the
cost-share assistance shall be specified in the contract. Eligible costs
for such cost-share assistance by NRCS shall only include those costs
which NRCS determines are appropriate and shall be subject to the
following restrictions:
(1) The State Conservationist will establish cost-share rates of
between 75 to 100 percent of the historical cost of establishing or
installing the practices specified in the WRPO; or pay the average cost
of establishing the practices specified in the WRPO, based on the
historical cost of establishing the practices in the State;
(2) Cost-share payments may be made only upon a determination that
an approved practice or an identifiable unit of the practice has been
completed in compliance with NRCS approved standards and specifications;
and
(3) Cost-share payments may not be made for the maintenance of the
practice except as specifically permitted in writing by the State
Conservationist.
(b) Notwithstanding paragraph (a)(3) of this section, cost share
payments may be authorized for the replacement or restoration of
practices for which cost share assistance has been previously allowed
under the EWRP, but only if:
(1) Replacement or restoration of the practice is needed to meet the
objectives for which the easement was established; and
(2) The failure of the original practice was due to reasons beyond
the control of the participant.
(c)(1) NRCS shall pay the amount agreed upon by NRCS and the
landowner for the purchase of the easement in a lump-sum amount after
the easement is perfected in compliance with State law, except in the
case of paragraph (c)(2) of this section.
(2) For all easements, NRCS shall pay no more than 75 percent of the
total easement price pending completion of the practices to restore the
wetlands as provided under the WRPO. The remaining amount shall be paid
when NRCS determines the restoration is complete.
(d) After an easement is perfected, NRCS will reimburse landowners
for fair and reasonable expenses incurred for title searches, filing
expenses, and related costs, as determined by NRCS.
Sec. 623.13 Wetlands reserve plan of operations.
(a) After NRCS has accepted the applicant for enrollment in the
program, a WRPO will be developed by the landowner and NRCS, in
consultation with FWS.
(b) The WRPO shall:
(1) Include an aerial photo displaying the land offered for
enrollment;
(2) Specify the manner in which the eligible land shall be restored,
operated, and maintained to accomplish the goal of the program,
including, but not limited to: (i) measures to control noxious weeds and
insect pests in order to comply with applicable Federal, or State
noxious weed and pest control laws; and (ii) measures to control other
[[Page 494]]
specified species of weeds, insects or pests;
(3) Specify compatible land uses for personal enjoyment for which
the landowner may be compensated. These compatible land uses shall be
reserved to the landowner in the easement. Such uses may include, among
others: (1) recreational use, hunting and fishing; (ii) manage timber
production including harvesting; and (iii) managed haying or grazing
consistent with the goals of the program;
(4) Set out cost estimates of the practices required by the WRPO,
the offer for the easement, and other reimbursement costs;
(5) Identify access routes to be maintained for wetland restoration
activities and future management and easement monitoring in connection
with the land to be enrolled;
(6) Make provisions deemed necessary for maintaining public drainage
systems if present on lands subject to the WRPO;
(7) Contain scheduled implementation dates for restoration
practices;
(8) Contain other provisions or limitations as NRCS, in consultation
with the FWS, determines to be necessary.
(c) NRCS in consultation with FWS will collect from State or Federal
agencies whatever additional information is deemed necessary for the
development of the WRPO with the landowner.
(d) The WRPO must be signed by NRCS, FWS, Conservation District
(CD), and the landowner(s). However, if agreement between NRCS and FWS,
or CD at the local level is not reached within 20 calendar days, the
WRPO shall be developed by the State Conservationist of NRCS in
consultation with FWS or CD.
(e) The WRPO may require that a temporary vegetative or water cover
be established on the property if immediate establishment of a permanent
cover is not practicable or otherwise desirable.
(f) The terms of an approved WRPO shall not relieve the program
participant of any obligation or term imposed or provided for in the
contract, the easement, or this part.
(g) WRPO, where appropriate, will provide for the development of a
tree planting plan with the assistance of the FS or State forestry
agency.
(h) The WRPO, where appropriate, will provide for the development by
NRCS of detailed plans for weed control, structural measures and their
operation, vegetation establishment and management, and other measures
as needed.
(i) Revisions of the WRPO to enhance or protect the value for which
the easement was established may be made at any time at the request of
either NRCS, FWS, the owner and upon the concurrence of all three
parties.
Sec. 623.14 Easement modifications.
After the easement has been perfected, no change will be made in the
easement without a written request by the participant and the written
consent of the Chief. Approval may be granted to achieve the goals of
EWRP or facilitate the practical administration and management of the
easement area or the program and the approval will not adversely affect
the functions and values for which the easement was established. A
modified easement shall be perfected in accordance with State law and
NRCS superior interest shall be reserved by the landowner in accordance
with Sec. Sec. 623.7 and 623.11(a)(3).
Sec. 623.15 Transfer of land.
(a) If a new owner purchases or obtains the right and interest in,
or right to occupancy of, the land subject to a EWRP easement, such new
owner shall be subject to the terms and conditions of the easement. The
participant who is the signatory to the easement shall be entitled to
receive all remaining payments, if any, for the purchase of the
easement. Eligible cost-share payments shall be made to the
participants. with respect to costs actually incurred.
(b) Upon the transfer of the property subject to an EWRP easement,
any remaining cost-share payments shall be paid to the new owner or
purchaser only if the new owner or purchaser becomes a party to the WRPO
within 60 days of the perfection of the deed transferring title to the
new owner. Such payments shall be paid in the manner agreed to by the
participant
[[Page 495]]
and the buyer. The new owner or purchaser shall be responsible for
assuring completion of all measures and practices required by the
contract and the WRPO.
(c) Any transfer of the property prior to the perfection of the
easement shall void any NRCS offer or WRPO unless the new owner agrees
to accept the offer within 60 days of the perfection of the deed
transferring the land to the new owner.
Sec. 623.16 Monitoring and enforcement of easement terms and
conditions.
(a) NRCS or its representative shall be permitted to inspect each
easement area at any and all times determined necessary by NRCS to
ensure that:
(1) Structural and vegetative restoration work are properly
maintained;
(2) The wetlands and adjacent upland habitat of the easement area is
being managed as required in the WRPO and the terms of the easement; and
(3) Uses of the area are consistent with the terms and conditions of
the easement and the WRPO.
(b) If an owner or other interested party is unwilling to
voluntarily correct, in a timely manner, deficiencies in compliance with
the terms of the WRPO, the EWRP easement, or any related agreements,
NRCS may at the expense of any person who is subject to the EWRP
easement correct such deficiency. Such NRCS action shall be in addition
to other remedies available to NRCS.
(c) Monitoring and enforcement responsibilities may be delegated by
NRCS at any time to other Federal or State agencies. Landowners may
transfer management responsibilities only to Federal, State, or local
agencies or private organizations that have been approved by NRCS in
advance as having the appropriate authority, expertise, and resources
necessary to carry out such delegated responsibilities.
Sec. 623.17 Violations and remedies.
(a) If a violation of the terms and conditions of the contract, the
WRPO, or the recorded EWRP easement occurs, the easement shall remain in
force and NRCS may:
(1) Require the owner to fully restore the easement area to fulfill
the terms and conditions of the easement and WRPO; and
(2) Require the owner, who received payments from NRCS for any
purpose under this part, to refund all or part of such payments received
together with interest, as determined appropriate by NRCS.
(b) If an owner fails to carry out the terms and conditions of an
easement, appropriate legal action may be initiated. The owner of the
property shall reimburse NRCS for all costs incurred including, but not
limited to, legal fees.
Sec. 623.18 Access to land.
In order to determine eligibility and compliance with respect to
this part, representatives of the Department, or designee thereof, shall
have the right of access to:
(a) Land which is the subject of an application made in accordance
with this part,
(b) Land which is subject to an easement made in accordance with
this part, and
(c) Records of the participant showing status of all ownership
interest in lands subject to this part.
Sec. 623.19 Assignments.
Any participant entitled to any cash payment under this program may
assign the right to receive such cash payments, in whole or in part.
Sec. 623.20 Appeals.
A participant in the EWRP may obtain a review of any administrative
determination concerning land eligibility, development of a WRPO, or any
adverse determination under this part in accordance with the
administrative appeal regulations provided in part 614 of this title.
[60 FR 67316, Dec. 29, 1995]
Sec. 623.21 Scheme and device.
(a) If it is determined by NRCS that a landowner has employed a
scheme or device to defeat the purposes of this part, any part of any
program payment otherwise due or paid such landowner during the
applicable period may be withheld or be required to be refunded with
interest thereon, as determined
[[Page 496]]
appropriate by NRCS, and the contract with the landowner may be
terminated. In such a case, NRCS may also continue to hold the easement
interest acquired under this part.
(b) A scheme or device includes, but is not limited to, coercion,
fraud, misrepresentation, depriving any other person of payments for
cost-share practices or easements for the purpose of obtaining a payment
to which a person would otherwise not be entitled.
(c) An owner of land subject to this part who succeeds to the
responsibilities under this part shall report in writing to NRCS any
interest of any kind in the land subject to this part that is retained
by a previous participant. Such interest includes a present, future or
conditional interest, reversionary interest or any option, future or
present, with respect to such land and any interest of any lender in
such land where the lender has, will, or can obtain, a right of
occupancy to such land or an interest in the equity in such land other
than an interest in the appreciation in the value of such land occurring
after the loan was made. A failure of full disclosure will be considered
a scheme or device under this section.
Sec. 623.22 Filing of false claims.
If it is determined by NRCS that any participant has knowingly
supplied false information or has knowingly filed a false claim, such
participant shall be ineligible for any payment under this part. False
information or false claims include claims for payment for practices
which do not meet the specifications of the applicable WRPO. Any amounts
paid under these circumstances shall be refunded, together with interest
as determined by NRCS, and any amounts otherwise due such participant
shall be withheld.
PART 624_EMERGENCY WATERSHED PROTECTION
Sec.
624.1 Purpose.
624.2 Objective.
624.3 Scope.
624.4 Definitions.
624.5 Coordination.
624.6 Program administration.
624.7 Cost-sharing.
624.8 Assistance.
624.9 Time limits.
624.10 Floodplain easements.
624.11 Waivers.
Authority: Sec. 216, P.L. 81-516, 33 U.S.C. 70lb-1; Sec. 403, P.L.
95-334, as amended, 16 U.S.C. 2203; 5 U.S.C. 301.
Source: 70 FR 16926, Apr. 4, 2005, unless otherwise noted.
Sec. 624.1 Purpose.
The Natural Resources Conservation Service (NRCS) and United States
Forest Service (FS) are responsible for administering the Emergency
Watershed Protection (EWP) Program. This part sets forth the
requirements and procedures for Federal assistance, administered by
NRCS, under Section 216, Public Law 81-516, 33 U.S.C. 701b-1; and
Section 403 of the Agricultural Credit Act of 1978, Public Law 95-334,
as amended by Section 382, of the Federal Agriculture Improvement and
Reform Act of 1996, Public Law 104-127, 16 U.S.C. 2203. The Secretary of
Agriculture has delegated the administration of the EWP Program to the
Chief of NRCS on state, tribal, and private lands, and Chief of FS on
National Forest Systems lands, including any other lands that are
administered under a formal agreement with the FS. The FS administers
the EWP Program in accordance with the Forest Service Manuals 1950 and
3540, and the Forest Service Handbook 1909.15
Sec. 624.2 Objective.
The objective of the EWP Program is to assist sponsors, landowners,
and operators in implementing emergency recovery measures for runoff
retardation and erosion prevention to relieve imminent hazards to life
and property created by a natural disaster that causes a sudden
impairment of a watershed.
Sec. 624.3 Scope.
EWP Program technical and financial assistance may be made available
to a qualified sponsor, or landowners when a floodplain easement is the
selected alternative by the Secretary of Agriculture, upon a qualified
sponsor or landowner's request when a Federal emergency is declared by
the President or when a local emergency is declared
[[Page 497]]
by the NRCS State Conservationist. The EWP Program is designed for
emergency recovery work, including the purchase of floodplain easements.
Emergency watershed protection is authorized in the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin
Islands, Guam, the Commonwealth of the Northern Mariana Islands, and
American Samoa.
Sec. 624.4 Definitions.
(a) Defensibility means the extent to which an action is:
(1) More beneficial than adverse in the extent and intensity of its
environmental and economic effects;
(2) In compliance with Federal, State, and local laws;
(3) Acceptable to affected individuals and communities;
(4) Effective in restoring or protecting the natural resources;
(5) Complete with all necessary components included; and
(6) Efficient in achieving the desired outcome.
(b) Exigency means those situations that demand immediate action to
avoid potential loss of life or property, including situations where a
second event may occur shortly thereafter that could compound the
impairment, cause new damages or the potential loss of life if action to
remedy the situation is not taken immediately.
(c) Floodplain easement means a reserved interest easement, which is
an interest in land, defined and delineated in a deed whereby the
landowner conveys all rights and interest in the property to the
grantee, but the landowner retains those rights, title, and interest in
the property which are specifically reserved to the landowner in the
easement deed.
(d) Imminent threat means a substantial natural occurrence that
could cause significant damage to property or threaten human life in the
near future.
(e)(1) Limited resource area is defined as a county where:
(i) Housing values are less than 75 percent of the State housing
value average; and
(ii) Per capita income is 75 percent or less than the National per
capita income; and
(iii) Unemployment is at least twice the U.S. average over the past
3 years based upon the annual unemployment figures.
(2) NRCS will use the most recent National census information
available when determining paragraphs (e)(1)(i) and (ii) of this
section.
(f) Natural occurrence includes, but is not limited to, floods,
fires, windstorms, ice storms, hurricanes, typhoons, tornadoes,
earthquakes, volcanic actions, slides, and drought.
(g) Project sponsor means a State government or a State agency or a
legal subdivision thereof, local unit of government, or any Native
American tribe or tribal organization as defined in section 4 of the
Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b),
with a legal interest in or responsibility for the values threatened by
a watershed emergency; is capable of obtaining necessary land rights;
and is capable of carrying out any operation and maintenance
responsibilities that may be required.
(h) Watershed emergency means adverse impacts to resources exist
when a natural occurrence causes a sudden impairment of a watershed and
creates an imminent threat to life or property.
(i) Watershed impairment means the situation that exists when the
ability of a watershed to carry out its natural functions is reduced to
the point where an imminent threat to health, life, or property is
created. This impairment can also include sediment and debris deposition
in floodplains and upland portions of the watershed.
Sec. 624.5 Coordination.
(a) If the President declares an area to be a major disaster area,
NRCS will provide assistance which will be coordinated with the Federal
Emergency Management Agency (FEMA) or its designee. FEMA is the lead
federal agency for Presidentially-declared natural disasters.
(b) When an NRCS State Conservationist determines that a watershed
impairment exists, but the President does not declare an area to be a
major
[[Page 498]]
disaster area, FEMA does not coordinate assistance. In this situation,
NRCS will assume the lead, provide assistance, and coordinate work with
the appropriate State office of emergency preparedness and other
Federal, tribal, or local agencies involved with emergency activities,
as appropriate.
(c) In the case where the watershed impairment exists solely on FS
System lands, the FS will determine the existence of the impairment,
assume the lead, provide assistance and coordinate work with the
appropriate State office of emergency preparedness and other Federal,
tribal, or local agencies involved with emergency activities, as
appropriate.
Sec. 624.6 Program administration.
(a) Sponsors. (1) When the State Conservationist declares that a
watershed impairment exists, NRCS may, upon request, make assistance
available to a sponsor which must be a State or political subdivision
thereof, qualified Indian tribe or tribal organization, or unit of local
government. Private entities or individuals may receive assistance only
through the sponsorship of a governmental entity.
(2) Sponsors must:
(i) Contribute their share of the project costs, as determined by
NRCS, by providing funds or certain services necessary to undertake the
activity. Contributions that may be applied towards the sponsor's
applicable cost-share of construction costs include:
(A) Cash;
(B) In-kind services such as labor, equipment, design, surveys,
contract administration and construction inspection, and other services
as determined by the State Conservationist; or
(C) A combination of cash and in-kind services;
(ii) Obtain any necessary real property rights, water rights, and
regulatory permits;
(iii) Agree to provide for any required operation and maintenance of
the completed emergency measures; and
(iv) Comply with applicable registration and reporting requirements
of the Federal Funding Accountability and Transparency Act of 2006 (Pub.
L. 109-282, as amended), and 2 CFR parts 25 and 170.
(b) Eligibility. NRCS will provide assistance based upon the NRCS
State Conservationist's determination that the current condition of the
land or watershed impairment poses a threat to health, life, or
property. This assistance includes EWP practices associated with the
removal of public health and safety threats, and restoration of the
natural environment after disasters, including acquisition of floodplain
easements.
(1) Priority EWP assistance is available to alleviate exigency
situations. NRCS may approve assistance for temporary correction
practices to relieve an exigency situation until a more acceptable
solution can be designed and implemented.
(2) Limitations. (i) In cases where the same type of natural event
occurs within a 10-year period and a structural measure has been
installed or repaired twice within that period using EWP assistance,
then EWP assistance is limited to those sites eligible for the purchase
of a floodplain easement as described in Sec. 624.10 of this part.
(ii) EWP assistance will not be used to perform operation or
maintenance, such as the periodic work that is necessary to maintain the
efficiency and effectiveness of a measure to perform as originally
designed and installed.
(iii) EWP assistance will not be used to repair, rebuild, or
maintain private or public transportation facilities, public utilities,
or similar facilities.
(iv) EWP assistance, funded by NRCS, will not be provided on any
Federal lands if such assistance is found to augment the appropriations
of other Federal agencies.
(v) EWP assistance is not available for repair or rehabilitation of
nonstructural management practices, such as conservation tillage and
other similar practices.
(3) Repair of structural, enduring, and long-life conservation
practices. (i) Sponsors may receive EWP assistance for structural,
enduring, and long-life conservation practices including, but not
limited to, grassed waterways, terraces, embankment ponds, diversions,
and water conservation systems, except where the recovery measures are
[[Page 499]]
eligible for assistance under the Emergency Conservation Program
administered by the Farm Service Agency.
(ii) EWP assistance may be available for the repair of certain
structural practices (i.e., dams and channels) originally constructed
under Public Law 83-566; Public Law 78-534; Subtitle H of Title XV of
the Agriculture and Food Act of 1981 (16 U.S.C. 3451 et seq., commonly
known as the Resource Conservation and Development Program); and the
Pilot Watershed Program of the Department of Agriculture Appropriation
Act of 1954 (Pub. L. 83-156; 67 Stat. 214). EWP assistance may not be
used to perform operation and maintenance activities specified in the
agreement for the covered structure project entered into with the
eligible local organization responsible for the works of improvement.
(iii) NRCS may authorize EWP assistance for modifying damaged
practices when technology advances or construction techniques warrant
modifications, including when modifications are the result of federal
permitting or other requirements necessary to implement the recovery
measure, and will be cost-shared as described in Sec. 624.7.
(iv) EWP assistance is only available when public or private
landowners, land managers, land users, or others document they have
exhausted or have insufficient funding or other resources available to
provide adequate relief from applicable hazards.
(4) Increased level of protection. In cases other than those
described in paragraph (b)(3)(iii) of this section, if the sponsor
desires to increase the level of protection that would be provided by
the EWP practice, the sponsor will be responsible for paying 100 percent
of the costs of the upgrade or additional work.
(c) Eligible practices. NRCS will only provide assistance for
measures that:
(1) Provide protection from additional flooding or soil erosion;
and,
(2) Reduce threats to life or property from a watershed impairment,
including sediment and debris removal in floodplains and uplands; and
(3) Restore the hydraulic capacity to the natural environment to the
maximum extent practical; and
(4) Are economically and environmentally defensible and technically
sound.
(d) Documentation. NRCS will document the economic rationale of
proposed practices in appropriate detail before the allocation of
emergency funding, including projects under consideration for floodplain
easements in Sec. 624.10. Generally, the expected value of the property
restored should exceed the cost of emergency measures, including taking
into consideration environmental benefits. Documentation will include,
but is not limited to:
(1) Number of locations and extent of damage, including
environmental and cultural resources at risk, because of the watershed
impairment;
(2) Estimated damages to the values at risk if the threat is
imminent but not yet realized;
(3) Events that must occur for any imminent threat to be realized
and the estimated probability of their occurrence both individually and
collectively;
(4) Estimates of the nature, extent, and costs of the emergency
practices to be constructed to recover from an actual threat or relieve
an imminent threat;
(5) Thorough description of the beneficial and adverse effects on
environmental resources, including fish and wildlife habitat;
(6) Description of water quality and water conservation impacts, as
appropriate;
(7) Analysis of effects on downstream water rights; and
(8) Other information deemed appropriate by NRCS to describe
adequately the environmental impacts to comply with the National
Environmental Policy Act, Endangered Species Act, National Historic
Preservation Act, and related requirements.
(e) Implementation. When planning emergency recovery practices, NRCS
will emphasize measures that are the most economical and are to be
accomplished by using the least damaging practical construction
techniques and equipment that retain as much of the existing
characteristics of the landscape and habitat as possible. Construction
of emergency practices may include, but are not limited to, timing
[[Page 500]]
of the construction to avoid impacting fish spawning, clearing of right-
of-ways, reshaping spoil, debris removal, use of bioengineering
techniques, and revegetation of disturbed areas. Mitigation actions
needed to offset potential adverse impacts of the EWP Program practices
should be planned for installation before, or concurrent with, the
installation of the EWP Program practices. In rare occurrences where
mitigation cannot be installed concurrently, plans will require
mitigation be accomplished as soon as practical.
(f) NRCS may determine that a measure is not eligible for assistance
for any reason, including economic and environmental factors or
technical feasibility.
[70 FR 16926, Apr. 4, 2005, as amended at 76 FR 19684, Apr. 8, 2011]
Sec. 624.7 Cost-sharing.
(a) Except as provided in paragraph (b) of this section, the Federal
contribution toward the implementation of emergency measures may not
exceed 75 percent of the construction cost of such emergency measures,
including work done to offset or mitigate adverse impacts as a result of
the emergency measures.
(b) If NRCS determines that an area qualifies as a limited resource
area, the Federal contribution toward the implementation of emergency
measures may not exceed 90 percent of the construction cost of such
emergency measures.
Sec. 624.8 Assistance.
(a) Sponsors must submit a formal request to the State
Conservationist for assistance within 60 days of the natural disaster
occurrence, or 60 days from the date when access to the sites becomes
available. Requests must include a statement that the sponsors
understand their responsibilities and are willing to pay its cost-shared
percentage as well as information pertaining to the natural disaster,
including the nature, location, and scope of the problems and the
assistance needed.
(b) On receipt of a formal request for EWP assistance, the State
Conservationist or designee shall immediately investigate the emergency
situation to determine whether EWP is applicable and to prepare an
initial cost estimation for submission to the NRCS Chief or designee.
The cost estimation will be submitted no later than 60 days from receipt
of the formal request from the sponsor. The State Conservationist will
take into account the funding priorities identified in paragraph (c) (3)
of this section. The State Conservationist will forward the damage
survey report, which provides the information pertaining to proposed EWP
practice(s) and indicates the amount of funds necessary to undertake the
Federal portion, to the NRCS Chief or designee. This information will be
submitted no later that 60 days from receipt of the formal request from
the sponsor, or no later than 60 days from the date funding is made
available to the State Conservationist, whichever is later. NRCS may not
commit funds until notified by the Chief, or designee, of the
availability of funds.
(c) Before the release of financial assistance, NRCS will enter into
a Cooperative Agreement with a sponsor that specifies the
responsibilities of the sponsor under this part, including any required
operation and maintenance responsibilities. NRCS will not provide
funding for activities undertaken by a sponsor prior to the signing of
the agreement between NRCS and the sponsor.
(1) NRCS will only provide funding for work that is necessary to
reduce applicable threats.
(2) Efforts must be made to avoid or minimize adverse environmental
impacts associated with the implementation of emergency measures, to the
extent practicable, giving special attention to protecting cultural
resources and fish and wildlife habitat.
(3) Funding priorities for recovery measures. NRCS will provide EWP
assistance based on the following criteria, which are ranked in the
order of importance:
(i) Exigency situations;
(ii) Sites where there is a serious, but not immediate threat to
human life;
(iii) Sites where buildings, utilities, or other important
infrastructure components are threatened;
(iv) When reviewing paragraphs (c)(3)(i) through (iii) of this
section,
[[Page 501]]
NRCS will take into account the following resources as they may affect
the priority, including, but not limited to:
(A) Sites inhabited by federally listed threatened and endangered
species or containing federally designated critical habitat where the
species or the critical habitat could be jeopardized, destroyed, or
adversely modified without the EWP practice;
(B) Sites that contain or are in the proximity to cultural sites
listed on the National Register of Historic Places where the listed
resource would be jeopardized if the EWP practice were not installed;
(C) Sites where prime farmland supporting high value crops is
threatened;
(D) Sites containing wetlands that would be damaged or destroyed
without the EWP practice;
(E) Sites that have a major effect on water quality; and
(F) Sites containing unique habitat, including but not limited to,
areas inhabited by State-listed threatened and endangered species, fish
and wildlife management areas, or State-identified sensitive habitats;
and
(v) Other funding priorities established by the Chief of NRCS.
Sec. 624.9 Time limits.
Funds must be obligated by the State Conservationist and
construction completed within 220 calendar days after the date funds are
committed to the State Conservationist, except for exigency situations
in which case the construction must be completed within 10 days after
the date the funds are committed.
Sec. 624.10 Floodplain easements.
(a) General. NRCS may purchase floodplain easements as an emergency
measure. NRCS will only purchase easements from landowners on a
voluntary basis.
(b) Floodplain easements. (1) Floodplain easements established under
this part will be:
(i) Held by the United States, through the Secretary of Agriculture;
(ii) Administered by NRCS or its designee; and
(iii) Perpetual in duration;
(2) Eligible land. NRCS may determine land is eligible under this
section if:
(i) The floodplain lands were damaged by flooding at least once
within the previous calendar year or have been subject to flood damage
at least twice within the previous 10 years; or
(ii) Other lands within the floodplain would contribute to the
restoration of the flood storage and flow, erosion control, or that
would improve the practical management of the easement; or
(iii) Lands would be inundated or adversely impacted as a result of
a dam breach.
(3) Ineligible land. NRCS may determine that land is ineligible
under this section if:
(i) Implementation of restoration practices would be futile due to
``on-site'' or ``off-site'' conditions;
(ii) The land is subject to an existing easement or deed restriction
that provides sufficient protection or restoration, as determined by the
Chief of NRCS, of the floodplain's functions and values; or
(iii) The purchase of an easement would not meet the purposes of
this part.
(4) Compensation for easements. NRCS will determine easement
compensation in accordance with applicable regulation and other law.
(5) NRCS will not acquire any easement unless the landowner accepts
the amount of the easement payment that is offered by NRCS. NRCS
reserves the right not to purchase an easement if the easement
compensation for a particular easement would be too expensive, as
determined by NRCS.
(6) NRCS may provide up to 100 percent of the restoration and
enhancement costs of the easement. NRCS may enter into an agreement with
the landowner or another third party to ensure that identified practices
are implemented. NRCS, the landowner, or other designee may implement
identified practices. Restoration and enhancement efforts may include
both structural and non-structural practices. An easement acquired under
this part shall provide NRCS with the full authority to restore,
protect, manage, maintain, and enhance the functions and values of the
floodplain.
(7) The landowner must:
[[Page 502]]
(i) Comply with the terms of the easement;
(ii) Comply with all terms and conditions of any associated
agreement; and
(iii) Convey title to the easement that is acceptable to NRCS and
warrant that the easement is superior to the rights of all others,
except for exceptions to the title that are deemed acceptable by NRCS.
(8) Structures, including buildings, within the floodplain easement
may be demolished and removed, or relocated outside the 100-year
floodplain or dam breach inundation area.
(c) Easements acquired under this part may not be modified or
terminated. However, in limited situations, as determined by the Chief
of NRCS and when in the best interest of the Government, land exchanges
may be authorized pursuant to (7 U.S.C. 428a) and other applicable
authorities.
(d) Enforcement. (1) In the event of a violation of an easement, the
violator will be given reasonable notice and an opportunity to correct
the violation within 30 days of the date of the notice, or such
additional time as NRCS may allow.
(2) NRCS reserves the right to enter upon the easement area at any
time to remedy deficiencies or easement violations. Such entry may be
made at the discretion of NRCS when such actions are deemed necessary to
protect important floodplain functions and values or other rights of the
United States under the easement. The landowner will be liable for any
costs incurred by the United States as a result of the landowner's
negligence or failure to comply with easement or agreement obligations.
(3) In addition to any and all legal and equitable remedies as may
be available to the United States under applicable law, NRCS may
withhold any easement and cost-share payments owing to landowners at any
time there is a material breach of the easement covenants or any
associated agreements. Such withheld funds may be used to offset costs
incurred by the United States, in any remedial actions, or retained as
damages pursuant to court order or settlement agreement.
(4) NRCS will be entitled to recover any and all administrative and
legal costs, including attorney's fees or expenses, associated with any
enforcement or remedial action.
(5) On the violation of the terms or conditions of the easement or
related agreement, the easement shall remain in force, and NRCS may
require the landowner to refund all or part of any payments received by
the landowner under this Part, together with interest thereon as
determined appropriate by NRCS.
(6) All the general penal statutes relating to crimes and offenses
against the United States shall apply in the administration of
floodplain easements acquired under this part.
Sec. 624.11 Waivers.
To the extent allowed by law, the NRCS Deputy Chief for Programs may
waive any provision of these regulations when the agency makes a written
determination that such waiver is in the best interest of the Federal
government.
PART 625_HEALTHY FORESTS RESERVE PROGRAM
Sec.
625.1 Purpose and scope.
625.2 Definitions.
625.3 Administration.
625.4 Program requirements.
625.5 Application procedures.
625.6 Establishing priority for enrollment in HFRP.
625.7 Enrollment of easements, contracts, and agreements.
625.8 Compensation for easements and 30-year contracts.
625.9 10-year restoration cost-share agreements.
625.10 Cost-share payments.
625.11 Easement participation requirements.
625.12 30-year contracts.
625.13 The HFRP restoration plan development and Landowner Protections.
625.14 Modification of the HFRP restoration plan.
625.15 Transfer of land.
625.16 Violations and remedies.
625.17 Payments not subject to claims.
625.18 Assignments.
625.19 Appeals.
625.20 Scheme and device.
Authority: 16 U.S.C. 6571-6578.
Source: 75 FR 6546, Feb. 10, 2010, unless otherwise noted.
[[Page 503]]
Sec. 625.1 Purpose and scope.
(a) The purpose of the Healthy Forests Reserve Program (HFRP) is to
assist landowners, on a voluntary basis, in restoring, enhancing, and
protecting forestland resources on private lands through easements, 30-
year contracts, and 10-year cost-share agreements.
(b) The objectives of HFRP are to:
(1) Promote the recovery of endangered and threatened species under
the Endangered Species Act of 1973 (ESA);
(2) Improve plant and animal biodiversity; and
(3) Enhance carbon sequestration.
(c) The regulations in this part set forth the policies, procedures,
and requirements for the HFRP as administered by the Natural Resources
Conservation Service (NRCS) for program implementation and processing
applications for enrollment.
(d) The Chief may implement HFRP in any of the 50 States, District
of Columbia, Commonwealth of Puerto Rico, Guam, Virgin Islands, American
Samoa, and the Commonwealth of the Northern Mariana Islands.
Sec. 625.2 Definitions.
The following definitions will be applicable to this part:
30-year Contract means a contract that is limited to acreage owned
by Indian tribes. The 30-year contract is not eligible for use on tribal
lands held in trust or subject to Federal restrictions against
alienation.
Acreage Owned by Indian Tribes means lands to which the title is
held by individual Indians and Indian tribes. This term does not include
land held in trust by the United States or lands where the fee title
contains restraints against alienation.
Biodiversity (Biological Diversity) means the variety and
variability among living organisms and the ecological complexes in which
they live.
Candidate Conservation Agreement with Assurances (CCAA) means a
voluntary arrangement between the U.S. Fish and Wildlife Service (FWS)
or the National Marine Fisheries Service (NMFS), and cooperating non-
Federal landowners under the authority of section 10(a)(1) of the
Endangered Species Act of 1973, 16 U.S.C. 1539(a)(1). Under the CCAA and
an associated enhancement of survival permit, the non-Federal landowner
implements actions that are consistent with the conditions of the
permit. CCAA with FWS are also subject to regulations at 50 CFR 17.22(d)
for endangered species or 50 CFR 17.32(d) for threatened species, or
applicable subsequent regulations.
Carbon sequestration means the long-term storage of carbon in soil
(as soil organic matter) or in plant material (such as in trees).
Chief means the Chief of the Department of Agriculture (USDA) NRCS,
or designee.
Confer means to discuss for the purpose of providing information; to
offer an opinion for consideration; or to meet for discussion, while
reserving final decision-making authority with NRCS.
Conservation practice means one or more conservation improvements
and activities, including structural practices, land management
practices, vegetative practices, forest management, and other
improvements that benefit the eligible land and optimize environmental
benefits, planned and applied according to NRCS standards and
specifications.
Conservation treatment means any and all conservation practices,
measures, activities, and works of improvement that have the purpose of
alleviating resource concerns, solving or reducing the severity of
natural resource use problems, or taking advantage of resource
opportunities, including the restoration, enhancement, maintenance, or
management of habitat conditions for HFRP purposes.
Coordination means to obtain input and involvement from others while
reserving final decision-making authority with NRCS.
Cost-share agreement means a legal document that specifies the
rights and obligations of any participant accepted into the program. A
HFRP cost-share agreement is a binding agreement for the transfer of
assistance from USDA to the participant to share in the costs of
applying conservation. A cost-share agreement under HFRP has a duration
of 10-years.
[[Page 504]]
Cost-share payment means the payment made by NRCS to a program
participant or vendor to achieve the restoration, enhancement, and
protection goals of enrolled land in accordance with the HFRP
restoration plan.
Easement means a conservation easement, which is an interest in land
defined and delineated in a deed whereby the landowner conveys certain
rights, title, and interests in a property to the United States for the
purpose of protecting the forest ecosystem and the conservation values
of the property.
Easement area means the land encumbered by an easement.
Easement payment means the consideration paid to a landowner for an
easement conveyed to the United States under the HFRP.
Fish and Wildlife Service is an agency of the Department of
Interior.
Forest Service is an agency of USDA.
Forest ecosystem means a dynamic set of living organisms, including
plants, animals, and microorganisms interacting among themselves and
with the environment in which they live. A forest ecosystem is
characterized by predominance of trees, and by the fauna, flora, and
ecological cycles (energy, water, carbon, and nutrients).
HFRP restoration plan means the document that identifies the
conservation treatments that are scheduled for application to land
enrolled in HFRP in accordance with NRCS standards and specifications.
Indian tribe means any Indian tribe, band, Nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601 et
seq.), which is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians.
Landowner means an individual or entity having legal ownership of
land. The term landowner may also include all forms of collective
ownership including joint tenants, tenants in common, and life tenants.
Landowner protections means protections and assurances made
available by NRCS to HFRP participants, when requested, and whose
voluntary conservation activities result in a net conservation benefit
for listed, candidate, or other species and meet other requirements of
the program. These Landowner Protections are subject to a HFRP
restoration plan and associated cost-share agreement, 30-year contract,
or easement being properly implemented. Landowner protections made
available by the Secretary of Agriculture to HFRP participants may
include an incidental take authorization received by NRCS from FWS or
NMFS, or may be provided by a Safe Harbor Agreement (SHA) or CCAA
directly between the HFRP participant and FWS or NMFS, as appropriate.
Liquidated damages means a sum of money stipulated in the HFRP
restoration agreement that the participant agrees to pay NRCS if the
participant fails to adequately complete the terms of the restoration
agreement. The sum represents an estimate of the expenses incurred by
NRCS to service the restoration agreement, and reflects the difficulties
of proof of loss and the inconvenience or non-feasibility of otherwise
obtaining an adequate remedy.
Maintenance means work performed to keep the applied conservation
practice functioning for the intended purpose during its life span.
Maintenance includes work to prevent deterioration of the practice,
repairing damage, or replacement of the practice to its original
condition if one or more components fail.
Measure means one or more specific actions that is not a
conservation practice, but has the effect of alleviating problems or
improving the treatment of the resources.
National Marine Fisheries Service is an agency of the United States
Department of Commerce.
Natural Resources Conservation Service is an agency of USDA which
has the responsibility for administering HFRP.
Participant means a person, entity, or Indian tribe who is a party
to a 10-year cost share agreement, 30-year contract, or an agreement to
purchase an easement.
Private land means land that is not owned by a local, State, or
Federal governmental entity, and includes land
[[Page 505]]
that meets the definition of ``acreage owned by Indian tribes.''
Restoration means implementing any conservation practice
(vegetative, management, or structural) or measure that improves forest
ecosystem values and functions (native and natural plant communities).
Restoration agreement means a cost-share agreement between the
program participant and NRCS to restore, enhance, and protect the
functions and values of a forest ecosystem for the purposes of HFRP
under either an easement, 30-year contract, or a 10-year cost-share
agreement enrollment option.
Safe Harbor Agreement means a voluntary arrangement between FWS or
NMFS and cooperating non-Federal landowners under the authority of
section 10(a)(1) of the Endangered Species Act of 1973, 16 U.S.C.
1539(a)(1). Under the SHA and an associated enhancement of survival
permit, the private property owner implements actions that are
consistent with the conditions of the permit. SHAs with FWS are also
subject to regulations at 50 CFR 17.22(c) for endangered species or 50
CFR 17.32(c) for threatened species, or applicable subsequent
regulations.
State-listed species means a species listed as threatened or
endangered under State endangered species laws, a candidate for such
listing, or a species listed in a State Wildlife Action Plan as a
Species of Greatest Conservation Need.
Sign-up notice means the public notification document that NRCS
provides to describe the particular requirements for a specific HFRP
sign-up.
State Conservationist means the NRCS employee authorized to
implement HFRP and direct and supervise NRCS activities in a State,
Caribbean Area, or Pacific Islands Area.
Technical service provider means an individual, private-sector
entity, or public agency certified by NRCS to provide technical services
to program participants in lieu of or on behalf of NRCS.
Sec. 625.3 Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Chief.
(b) The Chief may modify or waive a provision of this part if the
Chief determines that the application of such provision to a particular
limited situation is inappropriate and inconsistent with the goals of
the program. This authority cannot be further delegated. The Chief may
not modify or waive any provision of this part which is required by
applicable law.
(c) No delegation in this part to lower organizational levels will
preclude the Chief from determining any issue arising under this part or
from reversing or modifying any determination arising from this part.
(d) The State Conservationist will develop a list of eligible
restoration practices, payment rates and cost-share percentages, a
priority ranking process, and any related technical matters.
(e) NRCS will coordinate with FWS and NMFS in the implementation of
the program and in establishing program policies. In carrying out this
program, NRCS may confer with private forest landowners, including
Indian tribes, the Forest Service and other Federal agencies, State fish
and wildlife agencies, State forestry agencies, State environmental
quality agencies, other State conservation agencies, and nonprofit
conservation organizations. No determination by the FWS, NMFS, Forest
Service, any Federal, State, or tribal agency, conservation district, or
other organization will compel NRCS to take any action which NRCS
determines will not serve the purposes of the program established by
this part.
Sec. 625.4 Program requirements.
(a) General. Under the HFRP, NRCS will purchase conservation
easements from, or enter into 30-year contracts or 10-year cost-share
agreements with, eligible landowners who voluntarily cooperate in the
restoration and protection of forestlands and associated lands. To
participate in HFRP, a landowner will agree to the implementation of a
HFRP restoration plan, the effect of which is to restore, protect,
enhance, maintain, and manage the habitat conditions necessary to
increase the likelihood of recovery of listed species under the ESA, or
measurably improve the well-being of species that are not listed as
endangered
[[Page 506]]
or threatened under the ESA but are candidates for such listing, State-
listed species, or species identified by the Chief for special
consideration for funding. NRCS may provide cost-share assistance for
the activities that promote the restoration, protection, enhancement,
maintenance, and management of forest ecosystem functions and values.
Specific restoration, protection, enhancement, maintenance, and
management activities may be undertaken by the landowner or other NRCS
designee.
(1) Of the total amount of funds expended under the program for a
fiscal year to acquire easements and enter into 10-year cost-share
agreements, not more than 40 percent will be used for cost-share
agreements, and not more than 60 percent will be used for easements.
(2) The Chief may use any funds that are not obligated by April 1 of
the fiscal year for which the funds are made available to carry out a
different method of enrollment during that fiscal year.
(b) Landowner eligibility. To be eligible to enroll an easement in
the HFRP, an individual or entity must:
(1) Be the landowner of eligible land for which enrollment is
sought;
(2) Agree to provide such information to NRCS, as the agency deems
necessary or desirable, to assist in its determination of eligibility
for program benefits and for other program implementation purposes; and
(3) Comply with applicable registration and reporting requirements
of the Federal Funding Accountability and Transparency Act of 2006 (Pub.
L. 109-282, as amended), and 2 CFR parts 25 and 170.
(c) Eligible land. (1) NRCS, in coordination with FWS or NMFS, will
determine whether land is eligible for enrollment and whether once found
eligible, the lands may be included in the program based on the
likelihood of successful restoration, enhancement, and protection of
forest ecosystem functions and values when considering the cost of
acquiring the easement, 30-year contract, or 10-year cost share
agreement, and the restoration, protection, enhancement, maintenance,
and management costs.
(2) Land will be considered eligible for enrollment in the HFRP only
if NRCS determines that:
(i) Such private land will contribute to the restoration or
enhancement of the habitat or otherwise measurably increase the
likelihood of recovery for a selected species listed under section 4 of
the ESA; and
(ii) Such private land will contribute to the restoration or
enhancement of the habitat or otherwise measurably improve the well-
being of a selected species not listed under section 4 of the ESA but is
a candidate for such listing, or the selected species is a State-listed
species, or is a species identified by the Chief for special
consideration for funding.
(3) NRCS may also enroll land adjacent to eligible land if the
enrollment of such adjacent land would contribute significantly to the
practical administration of the easement area, but not more than it
determines is necessary for such contribution.
(4) To be enrolled in the program, eligible land must be configured
in a size and with boundaries that allow for the efficient management of
the area for easement purposes and otherwise promote and enhance program
objectives.
(5) In the case of acreage owned by an Indian tribe, NRCS may enroll
acreage into the HFRP which is privately owned by either the tribe or an
individual.
(d) Ineligible land. The following land is not eligible for
enrollment in the HFRP:
(1) Land owned by the United States, States, or units of local
government;
(2) Land subject to an easement or deed restriction that already
provides for the protection of fish and wildlife habitat or that would
interfere with HFRP purposes, as determined by NRCS; and
(3) Land that would not be eligible for HFRP under paragraphs (c)(1)
through (c)(5).
[75 FR 6546, Feb. 10, 2010, as amended at 76 FR 19684, Apr. 8, 2011]
Sec. 625.5 Application procedures.
(a) Sign-up process. As funds are available, the Chief will solicit
project proposals from the State Conservationist. The State
Conservationist may consult
[[Page 507]]
with other agencies at the State, Federal, and local levels to develop
proposals. The State Conservationist will submit the proposal(s) to the
Chief for funding selection. Upon selection for funding, the State
Conservationist will issue a public sign-up notice which will announce
and explain the rationale for decisions based on the following
information:
(1) The geographic scope of the sign-up;
(2) Any additional program eligibility criteria that are not
specifically listed in this part;
(3) Any additional requirements that participants must include in
their HFRP applications that are not specifically identified in this
part;
(4) Information on the priority order of enrollment for funding;
(5) An estimate of the total funds NRCS expects to obligate during a
given sign-up; and
(6) The schedule for the sign-up process, including the deadline(s)
for applying.
(b) Application for participation. To apply for enrollment through
an easement, 30-year contract, or 10-year cost-share agreement, a
landowner must submit an application for participation in the HFRP
during an announced period for such sign-up.
(c) Preliminary agency actions. By filing an application for
participation, the applicant consents to an NRCS representative entering
upon the land for purposes of determining land eligibility, and for
other activities that are necessary or desirable for NRCS to make offers
of enrollment. The applicant is entitled to accompany an NRCS
representative on any site visits.
(d) Voluntary reduction in compensation. In order to enhance the
probability of enrollment in HFRP, an applicant may voluntarily offer to
accept a lesser payment than is being offered by NRCS. Such offer and
subsequent payments may not be less than those rates set forth in
Sec. 625.8 and Sec. 625.10 of this part.
Sec. 625.6 Establishing priority for enrollment in HFRP.
(a) Ranking considerations. Based on the specific criteria set forth
in a sign-up announcement and the applications for participation, NRCS,
in coordination FWS and NMFS, may consider the following factors to rank
properties:
(1) Estimated conservation benefit to habitat required by threatened
or endangered species listed under section 4 of the ESA;
(2) Estimated conservation benefit to habitat required by species
not listed as endangered or threatened under section 4 of the ESA but
that are candidates for such listing, State-listed species, or species
identified by the Chief for special consideration for funding;
(3) Estimated improvement of biological diversity, if enrolled;
(4) Potential for increased capability of carbon sequestration, if
enrolled;
(5) Availability of contribution of non-Federal funds;
(6) Significance of forest ecosystem functions and values;
(7) Estimated cost-effectiveness of the particular restoration cost-
share agreement, contract, or easement, and associated HFRP restoration
plan; and
(8) Other factors identified in a HFRP sign-up notice.
(b) NRCS may place higher priority on certain forest ecosystems
based regions of the State or multi-State area where restoration of
forestland may better achieve NRCS programmatic and sign-up goals and
objectives.
(c) Notwithstanding any limitation of this part, NRCS may enroll
eligible lands at any time in order to encompass project areas subject
to multiple land ownership or otherwise to achieve program objectives.
Similarly, NRCS may, at any time, exclude otherwise eligible lands if
the participation of the adjacent landowners is essential to the
successful restoration of the forest ecosystem and those adjacent
landowners are unwilling to participate.
(d) If available funds are insufficient to accept the highest ranked
application, and the applicant is not interested in reducing the acres
offered to match available funding, NRCS may select a lower ranked
application that can be fully funded. In cases where HFRP funds are not
sufficient to cover the costs of an application selected for funding,
the applicant may lower the cost of the application by changing the
duration of the easement or agreement
[[Page 508]]
or reducing the acreage offered, unless these changes result in a
reduction of the application ranking score below that of the score of
the next available application on the ranking list.
Sec. 625.7 Enrollment of easements, contracts, and agreements.
(a) Offers of enrollment. Based on the priority ranking, NRCS will
notify an affected landowner of tentative acceptance into the program.
This notice of tentative acceptance into the program does not bind NRCS
or the United States to enroll the proposed project in HFRP, nor does it
bind the landowner to convey an easement, or to contract or agree to
HFRP activities. The letter notifies the landowner that NRCS intends to
continue the enrollment process on their land unless otherwise notified
by the landowner.
(b) Acceptance of offer of enrollment. An agreement to purchase or a
restoration cost-share agreement or contract will be presented by NRCS
to the landowner which will describe the easement, agreement, or
contract area; the easement, agreement, or contract terms and
conditions; and other terms and conditions for participation that may be
required by NRCS.
(c) Effect of the acceptance of the offer. After the agreement to
purchase or restoration cost-share agreement or contract is executed by
NRCS and the landowner, the land will be considered enrolled in the
HFRP. For easements, NRCS will proceed with various easement acquisition
activities, which may include conducting a survey of the easement area,
securing necessary subordination agreements, procuring title insurance,
and conducting other activities necessary to record the easement or
implement the HFRP, as appropriate for the enrollment option being
considered. For restoration cost-share agreements and contracts, the
landowner will proceed to implement the restoration plan with technical
assistance and cost-share from NRCS.
(d) Withdrawal of offers. Prior to execution of an agreement to
purchase, a restoration cost-share agreement, or contract between the
United States and the landowner, NRCS may withdraw the land from
enrollment at any time due to lack of availability of funds, inability
to clear title, or other reasons. An agreement to purchase will be void,
and the offer withdrawn, if not executed by the landowner within the
time specified.
Sec. 625.8 Compensation for easements and 30-year contracts.
(a) Determination of easement payment rates.
(1) NRCS will offer to pay not less than 75 percent, nor more than
100 percent of the fair market value of the enrolled land during the
period the land is subject to the easement, less the fair market value
of the land encumbered by the easement for permanent easements or
easements for the maximum duration allowed under State law.
(2) NRCS will offer to pay not more than 75 percent of the fair
market value of the enrolled land, less the fair market value of the
land encumbered by the easement for 30-year easements or 30-year
contracts.
(b) Acceptance and use of contributions. NRCS may accept and use
contributions of non-Federal funds to make payments under this section.
(c) Acceptance of offered easement or 30-year contract compensation.
(1) NRCS will not acquire any easement or 30-year contract unless
the landowner accepts the amount of the payment that is offered by NRCS.
The payment may or may not equal the fair market value of the interests
and rights to be conveyed by the landowner under the easement or 30-year
contract. By voluntarily participating in the program, a landowner
waives any claim to additional compensation based on fair market value.
(2) Payments may be made in a single payment or no more than 10
annual payments of equal or unequal size, as agreed to between NRCS and
the landowner.
(d) If a landowner believes they may be eligible for a bargain sale
tax deduction that is the difference between the fair market value of
the easement conveyed to the United States and the easement payment made
to the landowner, it is the landowner's responsibility to discuss those
matters with the Internal Revenue Service. NRCS disclaims any
representations concerning
[[Page 509]]
the tax implications of any easement or cost-share transaction.
(e) Per acre payments. If easement payments are calculated on a per
acre basis, adjustment to stated easement payment will be made based on
final determination of acreage.
(f) Ecosystem Services Credits for Conservation Improvements. USDA
recognizes that environmental benefits will be achieved by implementing
conservation practices and activities funded through HFRP, and that
environmental credits may be gained as a result of implementing
activities compatible with the purposes of a HFRP easement, 30-year
contract, or restoration cost-share agreement. NRCS asserts no direct or
indirect interest in these credits. However, NRCS retains the authority
to ensure the requirements of a HFRP easement, contract, cost-share
agreement, or restoration plan are met consistent with Sec. Sec. 625.9
through 625.13 of this part. Where activities required under an
environmental credit agreement may affect land covered under a HFRP
easement, restoration cost-share agreement, or 30-year contract,
participants are highly encouraged to request a compatibility assessment
from NRCS prior to entering into such agreements.
Sec. 625.9 10-year restoration cost-share agreements.
(a) The restoration plan developed under Sec. 625.13 forms the basis
for the 10-year cost-share agreement and its terms are incorporated
therein.
(b) A 10-year cost-share agreement will:
(1) Incorporate all portions of a restoration plan;
(2) Be for a period of 10 years;
(3) Include all provisions as required by law or statute;
(4) Specify the requirements for operation and maintenance of
applied conservation practices;
(5) Include any participant reporting and recordkeeping requirements
to determine compliance with the agreement and HFRP;
(6) Be signed by the participant;
(7) Identify the amount and extent of cost-share assistance that
NRCS will provide for the adoption or implementation of the approved
conservation treatment identified in the restoration plan; and
(8) Include any other provision determined necessary or appropriate
by the NRCS representative.
(c) Once the participant and NRCS have signed a 10-year cost-share
agreement, the land will be considered enrolled in HFRP.
(d) The State Conservationist may, by mutual agreement with the
parties to the 10-year cost-share agreement, consent to the termination
of the restoration agreement where:
(1) The parties to the 10-year cost-share agreement are unable to
comply with the terms of the restoration agreement as the result of
conditions beyond their control;
(2) Compliance with the terms of the 10-year cost-share agreement
would work a severe hardship on the parties to the agreement; or
(3) Termination of the 10-year cost-share agreement would, as
determined by the State Conservationist, be in the public interest.
(e) If a 10-year cost-share agreement is terminated in accordance
with the provisions of this section, the State Conservationist may allow
the participants to retain any cost-share payments received under the
10-year cost-share agreement where forces beyond the participant's
control prevented compliance with the agreement.
Sec. 625.10 Cost-share payments.
(a) NRCS may share the cost with landowners of restoring land
enrolled in HFRP as provided in the HFRP restoration plan. The HFRP
restoration plan may include periodic manipulation to maximize fish and
wildlife habitat and preserve forest ecosystem functions and values, and
measures that are needed to provide the Landowner Protections under
section 7(b)(4) or section 10(a)(1) of the ESA, including the cost of
any permit.
(b) Landowner Protections may be made available to landowners
enrolled in the HFRP who agree, for a specified period, to restore,
protect, enhance, maintain, and manage the habitat conditions on their
land in a manner that is reasonably expected to result in a net
conservation benefit that contributes to the recovery of listed species
[[Page 510]]
under the ESA, candidate, or other species covered by this regulation.
These protections operate with lands enrolled in the HFRP and are valid
for as long as the landowner is in compliance with the terms and
conditions of such assurances, any associated permit, the easement,
contract, or the restoration agreement.
(c) If the Landowner Protections, or any associated permit, require
the adoption of a conservation practice or measure in addition to the
conservation practices and measures identified in the applicable HFRP
restoration plan, NRCS and the landowner will incorporate the
conservation practice or measure into the HFRP restoration plan as an
item eligible for cost-share assistance.
(d) Failure to perform planned management activities can result in
violation of the easement, 10-year cost-share agreement, or the
agreement under which Landowner Protections have been provided. NRCS
will work with landowners to plan appropriate management activities.
(e) The amount and terms and conditions of the cost-share assistance
will be subject to the following restrictions on the costs of
establishing or installing NRCS approved conservation practices or
implementing measures specified in the HFRP restoration plan:
(1) On enrolled land subject to a permanent easement or an easement
for the maximum duration allowed under State law, NRCS will offer to pay
not less than 75 percent nor more than 100 percent of the average cost,
and;
(2) On enrolled land subject to a 30-year easement or 30-year
contract, NRCS will offer to pay not more than 75 percent of the average
cost.
(f) On enrolled land subject to a 10-year cost-share agreement
without an associated easement, NRCS will offer to pay not more than 50
percent of the average costs.
(g) Cost-share payments may be made only upon a determination by
NRCS that an eligible conservation practice or measure has been
established in compliance with appropriate standards and specifications.
Identified conservation practices and measures may be implemented by the
landowner or other designee.
(h) Cost-share payments may be made for the establishment and
installation of additional eligible conservation practices and measures,
or the maintenance or replacement of an eligible conservation practice
or measure, but only if NRCS determines the practice or measure is
needed to meet the objectives of HFRP, and the failure of the original
conservation practices or measures was due to reasons beyond the control
of the landowner.
Sec. 625.11 Easement participation requirements.
(a) To enroll land in HFRP through a permanent easement, an easement
for the maximum duration allowed under State law, or 30-year enrollment
option, a landowner will grant an easement to the United States. The
easement deed will require that the easement area be maintained in
accordance with HFRP goals and objectives for the duration of the term
of the easement, including the restoration, protection, enhancement,
maintenance, and management of habitat and forest ecosystem functions
and values.
(b) For the duration of its term, the easement will require, at a
minimum, that the landowner and the landowner's heirs, successors, and
assignees, will cooperate in the restoration, protection, enhancement,
maintenance, and management of the land in accordance with the easement
and with the terms of the HFRP restoration plan. In addition, the
easement will grant to the United States, through NRCS:
(1) A right of access to the easement area by NRCS or its
representative;
(2) The right to determine and permit compatible uses on the
easement area and specify the amount, method, timing, intensity, and
duration of the compatible use, if such use is consistent with the long-
term protection and enhancement of the purposes for which the easement
was established;
(3) The rights, title, and interest to the easement area as
specified in the conservation easement deed; and
(4) The right to perform restoration, protection, enhancement,
maintenance, and management activities on the easement area.
[[Page 511]]
(c) The landowner will convey title to the easement which is
acceptable to NRCS. The landowner will warrant that the easement granted
to the United States is superior to the rights of all others, except for
exceptions to the title which are deemed acceptable by NRCS.
(d) The landowner will:
(1) Comply with the terms of the easement;
(2) Comply with all terms and conditions of any associated agreement
or contract;
(3) Agree to the long-term restoration, protection, enhancement,
maintenance, and management of the easement in accordance with the terms
of the easement and related agreements;
(4) Have the option to enter into an agreement with governmental or
private organizations to assist in carrying out any landowner
responsibilities on the easement area; and
(5) Agree that each person who is subject to the easement will be
jointly and severally responsible for compliance with the easement and
the provisions of this part, and for any refunds or payment adjustment
which may be required for violation of any terms or conditions of the
easement or the provisions of this part.
Sec. 625.12 30-year contracts.
(a) To enroll land in HFRP through the 30-year contract option, a
landowner will sign a 30-year contract with NRCS. The contract will
require that the contract area be maintained in accordance with HFRP
goals and objectives for the duration of the term of the contract,
including the restoration, protection, enhancement, maintenance, and
management of habitat and forest ecosystem functions and values.
(b) For the duration of its term, the 30-year contract will require,
at a minimum, that the landowner and the landowner's assignees, will
cooperate in the restoration, protection, enhancement, maintenance, and
management of the land in accordance with the contract and with the
terms of the HFRP restoration plan. In addition, the contract will grant
to the United States through NRCS:
(1) A right of access to the contract area by NRCS or its
representative;
(2) The right to allow such activities by the landowner as hunting
and fishing, managed timber harvest, or periodic haying or grazing, if
such use is consistent with the long-term protection and enhancement of
the purposes for which the contract was established;
(3) The right to specify the amount, method, timing, intensity, and
duration of the activities listed in paragraph (b)(2) of this section,
as incorporated into the terms of the contract; and
(4) The right to perform restoration, protection, enhancement,
maintenance, and management activities on the contract area.
(c) The landowner will:
(1) Comply with the terms of the contract;
(2) Comply with all terms and conditions of any associated agreement
or contract; and
(3) Agree to the long-term restoration, protection, enhancement,
maintenance, and management of the contract area in accordance with the
terms of the contract and related agreements.
(d) A 30-year contract will:
(1) Be signed by the participant;
(2) Identify the amount and extent of cost-share assistance that
NRCS will provide for the adoption or implementation of the approved
conservation treatment identified in the restoration plan; and
(3) Include any other provision determined necessary or appropriate
by the NRCS representative.
(e) Once the landowner and NRCS have signed a 30-year contract, the
land will be considered enrolled in HFRP.
Sec. 625.13 The HFRP restoration plan development and Landowner
Protections.
(a) The development of the HFRP restoration plan will be made
through an NRCS representative, who will confer with the program
participant and with the FWS and NMFS, as appropriate.
(b) The HFRP restoration plan will specify the manner in which the
enrolled land under easement, 30-year
[[Page 512]]
contract, or 10-year cost-share agreement will be restored, protected,
enhanced, maintained, and managed to accomplish the goals of the
program.
(c) Eligible restoration practices and measures may include land
management, vegetative, and structural practices and measures that will
restore and enhance habitat conditions for listed species, candidate,
State-listed, and other species identified by the Chief for special
funding consideration. To the extent practicable, eligible practices and
measures will improve biodiversity and optimize the sequestration of
carbon through management that maintains diverse and high quality native
forests to accomplish the goals of the restoration plan. NRCS, in
coordination with FWS and NMFS, will determine the conservation
practices and measures. The State Conservationist will develop and make
available to the public a list of eligible practices, and will determine
payment rates and cost-share percentages within statutory limits.
(d) Landowner Protections. An HFRP participant who enrolls land in
HFRP and whose conservation treatment results in a net conservation
benefit for listed, candidate, or other species, may request such
Landowner Protections as follows:
(1) Incidental Take Authorization.
(i) NRCS will extend to participants the incidental take
authorization received by NRCS from FWS or NMFS through biological
opinions issued as part of the interagency cooperation process under
section 7(a)(2) of the ESA;
(ii) NRCS will provide assurances, as a provision of the restoration
plan, that when a participant is provided authorization for incidental
take of a listed species, NRCS will not require management activities
related to that species to be undertaken in addition to or different
from those specified in the restoration plan without the participant's
consent;
(iii) The program participant will be covered by the authorization
to NRCS for incidental take associated with restoration actions or
management activities. The incidental take may include a return to
baseline conditions at the end of the applicable period, if the
landowner so desires.
(iv) Provided the landowner has acted in good faith and without
intent to violate the terms of the HFRP restoration plan, NRCS will
pursue all appropriate options with the participant to avoid termination
in the event of the need to terminate an HFRP restoration plan that is
being properly implemented; and
(v) If the 30-year contract or 10-year restoration cost-share
agreement is terminated, any requested assurances, including an
incidental take authorization under this section, provided by NRCS will
be voided. As such, the landowner will be responsible to FWS or NMFS for
any violations of the ESA.
(2) SHA or CCAA.
(i) NRCS will provide technical assistance to help participants
design and use their HFRP restoration plan for the dual purposes of
qualifying for HFRP financial assistance and as a basis for entering
into a SHA or CCAA with FWS or NMFS and receiving an associated permit
under section 10(a)(1)(a) of the ESA.
(ii) In exchange for a commitment to undertake conservation
measures, the landowner may receive a permit under section 10 of the ESA
from FWS or NMFS authorizing incidental take of species covered by the
SHA or CCAA that may occur as a result of restoration actions,
management activities, and for a listed species covered by a SHA, a
return to baseline conditions at the end of the applicable period.
(iii) All SHAs and associated permits issued by FWS or NMFS are
subject to the Safe Harbor Policy jointly adopted by FWS and NMFS
according to the regulations at 64 FR 32717 or applicable subsequently
adopted policy, and SHAs with FWS also are subject to regulations at 50
CFR 17.22(c) for endangered species or 50 CFR 17.32(c) for threatened
species, or applicable subsequent regulations.
(iv) All CCAAs and associated permits issued by FWS or NMFS are
subject to the CCAAs policy jointly adopted by FWS and NMFS according to
the regulations at 64 FR 32706 or applicable subsequently adopted
policy, and CCAAs with FWS also are subject to
[[Page 513]]
regulations at 50 CFR 17.22(d) for endangered species or 50 CFR 17.32(d)
for threatened species, or applicable subsequent regulations.
(v) If the 30-year contract or 10-year restoration cost-share
agreement is terminated, the landowner will be responsible to notify and
coordinate with FWS and NMFS or any other relevant party to the specific
SHA or CCAA, as appropriate, for any modifications related to the SHA or
CCAA.
Sec. 625.14 Modification of the HFRP restoration plan.
The State Conservationist may approve modifications to the HFRP
restoration plan that do not modify or void provisions of the easement,
contract, restoration agreement, or Landowner Protections, and are
consistent with applicable law. NRCS may obtain and receive input from
the landowner and coordinate with FWS and NMFS to determine whether a
modification to the restoration plan is justified. Any HFRP restoration
plan modification must meet HFRP program objectives, and must result in
equal or greater wildlife benefits and ecological and economic values to
the United States. Modifications to the HFRP restoration plan which are
substantial and affect provisions of the contract, restoration cost-
share agreement, or Landowner Protections will require agreement from
the landowner, any relevant party to a specific SHA or CCAA, FWS, or
NMFS, as appropriate, and may require execution of an amended contract
or 10-year restoration cost-share agreement and modification to the
Landowner Protection provisions.
Sec. 625.15 Transfer of land.
(a) Offers voided prior to enrollment. Any transfer of the property
prior to the applicant's acceptance into the program will void the offer
of enrollment. At the option of the State Conservationist, an offer can
be extended to the new landowner if the new landowner agrees to the same
or more restrictive easement, agreement, and contract terms and
conditions.
(b) Actions following transfer of land.
(1) For easements or 30-year contracts with multiple annual
payments, any remaining payments will be made to the original landowner
unless NRCS receives an assignment of proceeds.
(2) Eligible cost-share payments will be made to the new landowner
upon presentation of an assignment of rights or other evidence that
title has passed.
(3) Landowner protections will be available to the new landowner,
and the new landowner will be held responsible for assuring completion
of all measures and conservation practices required by the contract,
deed, and incidental take permit.
(4) If a SHA or CCAA is involved, the previous and new landowner may
coordinate with FWS or NMFS, as appropriate, to transfer the agreement
and associated permits and assurances.
(5) The landowner and NRCS may agree to transfer a 30-year contract.
The transferee must be determined by NRCS to be eligible to participate
in HFRP and must assume full responsibility under the contract,
including operation and maintenance of all conservation practices and
measures required by the contract.
(c) Claims to payments. With respect to any and all payments owed to
a person, the United States will bear no responsibility for any full
payments or partial distributions of funds between the original
landowner and the landowner's successor. In the event of a dispute or
claim on the distribution of cost-share payments, NRCS may withhold
payments without the accrual of interest pending an agreement or
adjudication on the rights to the funds.
Sec. 625.16 Violations and remedies.
(a) Easement Violations.
(1) In the event of a violation of the easement or any associated
agreement involving a landowner, the landowner will be given reasonable
notice and an opportunity to voluntarily correct the violation within 30
days of the date of the notice, or such additional time as the State
Conservationist determines is necessary to correct the violation.
(2) Notwithstanding paragraph (a)(1) of this section, NRCS reserves
the right to enter upon the easement area at any time to remedy
deficiencies or easement violations. Such entry may be made at the
discretion of NRCS
[[Page 514]]
when such actions are deemed necessary to protect important listed
species, candidate species, and forest ecosystem functions and values or
other rights of the United States under the easement. The landowner will
be liable for any costs incurred by the United States as a result of the
landowner's negligence or failure to comply with easement or contractual
obligations.
(3) In addition to any and all legal and equitable remedies as may
be available to the United States under applicable law, NRCS may
withhold any easement and cost-share payments owed to landowners at any
time there is a material breach of the easement covenants, associated
restoration agreement, or any associated contract. Such withheld funds
may be used to offset costs incurred by the United States in any
remedial actions or retained as damages pursuant to court order or
settlement agreement.
(4) The United States will be entitled to recover any and all
administrative and legal costs, including attorney's fees or expenses,
associated with any enforcement or remedial action.
(b) 30-year Contract and 10-year Cost-Share Agreement Violations.
(1) If NRCS determines that a participant is in violation of the
terms of a 30-year contract, or 10-year cost-share agreement, or
documents incorporated by reference into the 30-year contract or 10-year
cost-share agreement, the landowner will be given reasonable notice and
an opportunity to voluntarily correct the violation within 30 days of
the date of the notice, or such additional time as the State
Conservationist determines is necessary to correct the violation. If the
violation continues, the State Conservationist may terminate the 30-year
contract or 10-year cost-share agreement.
(2) Notwithstanding the provisions of paragraph (b)(1) of this
section, a 10-year cost-share agreement or 30-year contract termination
is effective immediately upon a determination by the State
Conservationist that the participant has: submitted false information;
filed a false claim; engaged in any act for which a finding of
ineligibility for payments is permitted under this part; or taken
actions NRCS deems to be sufficiently purposeful or negligent to warrant
a termination without delay.
(3) If NRCS terminates a 10-year cost-share agreement or 30-year
contract, the participant will forfeit all rights for future payments
under the 10-year cost-share agreement or 30-year contract, and must
refund all or part of the payments received, plus interest, and
liquidated damages.
(4) When making any 30-year contract or 10-year cost-share agreement
termination decisions, the State Conservationist may provide equitable
relief in accordance with 7 CFR part 635.
Sec. 625.17 Payments not subject to claims.
Any cost-share, contract, or easement payment or portion thereof due
any person under this part will be allowed without regard to any claim
or lien in favor of any creditor, except agencies of the United States
Government.
Sec. 625.18 Assignments.
Any person entitled to any cash payment under this program may
assign the right to receive such cash payments in whole or in part.
Sec. 625.19 Appeals.
(a) A person participating in the HFRP may obtain a review of any
administrative determination concerning eligibility for participation
utilizing the administrative appeal regulations provided in 7 CFR parts
11 and 614.
(b) Before a person may seek judicial review of any administrative
action concerning eligibility for program participation under this part,
the person must exhaust all administrative appeal procedures set forth
in paragraph (a) of this section, and for purposes of judicial review,
no decision will be a final agency action except a decision of the Chief
under these procedures.
(c) Any appraisals, market analysis, or supporting documentation
that may be used by NRCS in determining property value are considered
confidential information, and will only be disclosed as determined at
the sole discretion of NRCS in accordance with applicable law.
(d) Enforcement actions undertaken by NRCS in furtherance of its
federally
[[Page 515]]
held property rights are under the jurisdiction of the Federal District
Court, and are not subject to review under administrative appeal
regulations.
Sec. 625.20 Scheme and device.
(a) If it is determined by NRCS that a person has employed a scheme
or device to defeat the purposes of this part, any part of any program
payment otherwise due or paid to such person during the applicable
period may be withheld or be required to be refunded with interest
thereon, as determined appropriate by NRCS.
(b) A scheme or device includes, but is not limited to, coercion,
fraud, misrepresentation, depriving any other person of payments for 10-
year cost-share agreements, contracts, or easements for the purpose of
obtaining a payment to which a person would otherwise not be entitled.
(c) A person who succeeds to the responsibilities under this part
will report in writing to NRCS any interest of any kind in enrolled land
that is held by a predecessor or any lender. A failure of full
disclosure will be considered a scheme or device under this section.
[[Page 516]]
SUBCHAPTER D_LONG TERM CONTRACTING
PART 630_LONG TERM CONTRACTING
Authority: Pub. L. 75-430, 49 Stat. 1151 (16 U.S.C. 590d); Pub. L.
84-1021, 70 Stat. 1115 (16 U.S.C. 590p(b); Pub. L. 91-118, 83 Stat. 194
(16 U.S.C. 590d).
Sec. 630.1 Purpose.
The purpose of this subchapter is to provide for programs to extend
cost sharing and technical assistance through long term contracts to
landowners and others for making land use changes and to install
measures to conserve, develop, and utilize the soil, water, and related
natural resources on their lands.
[40 FR 53370, Nov. 18, 1975]
PART 631_GREAT PLAINS CONSERVATION PROGRAM
Subpart A_General Provisions
Sec.
631.1 Purpose.
631.2 Definitions.
631.3 Administration.
631.4 Program applicability.
631.5 Land user eligibility.
631.6 Land eligible for the program.
631.7 Conservation treatment eligible for cost sharing.
631.8 Cost-share rates.
631.9 Conservation plan.
Subpart B_Contracts
631.10 Contracts.
631.11 Conservation practice maintenance.
631.12 Cost-share payments.
631.13 Disputes and appeals for matters other than contract violations.
631.14 Contract violations.
Subpart C_Miscellaneous
631.20 Setoffs.
631.21 Compliance with regulatory measures.
631.22 Access to operating unit.
631.23 State conservationist's authority.
Authority: 16 U.S.C. 590p(b).
Source: 49 FR 11142, Mar. 27, 1984, unless otherwise noted.
Subpart A_General Provisions
Sec. 631.1 Purpose.
(a) The Great Plains Conservation Program (GPCP) is a special
program targeted to the total conservation treatment of farm or ranch
units with the most severe soil and water resources problems. The
purpose of the program is to assist farm, ranch and other land users to
make changes in their cropping systems and land uses which are needed to
conserve, develop, protect, and utilize the soil and water resources of
their lands. This purpose is achieved by controlling erosion, conserving
water, and adjusting land use to mitigate climatic, soil, topographic,
flood, saline and other natural hazards.
(b) Program participation is voluntary and is carried out by
applying a conservation plan encompassing an entire operating unit. A
conservation plan is developed with the land user in consultation with
the local conservation district and is used to establish a GPCP
contract. This contract provides for cost sharing between the land user
and the Secretary of Agriculture for applying needed land use
adjustments and conservation treatment within a specified time schedule.
The program is supplemental to, not a substitution for, other programs
in the Great Plains area.
Sec. 631.2 Definitions.
The terms defined shall have the following meaning in this part and
in all contracts, forms, documents, instructions, and procedures in
connection therewith, unless the contract or subject matter requires
otherwise.
Applicant. A land user who has requested in writing to participate
in the GPCP.
Area conservationist. The NRCS employee who is the supervisor with
primary responsibility for quality control. This person serves as
contracting officer if designated by the state conservationist.
Chief. The Chief of the Natural Resources Conservation Service
(NRCS), USDA.
[[Page 517]]
Conservation district (CD). A conservation district, soil
conservation district, soil and water conservation district, natural
resource district, or similar legally constituted body with which the
Secretary of Agriculture cooperates pursuant to the Soil Conservation
and Domestic Allotment Act. The members of governing bodies of these
organizations may be known as supervisors, directors, or commissioners.
Conservation plan. A written record of the land user's decisions
regarding planned land use and treatment, including estimates of extent
and cost. The timing of applications for each practice and/or
identifiable unit is scheduled in the conservation plan.
Conservation practice. A specific treatment which is planned and
applied according to NRCS standards and specifications as a part of a
resource management system for land, water, and related resources.
Contract. A legal document that binds both the participants and the
federal government to carry out the terms and conditions of the
conservation plan. The contract forms the basis for GPCP sharing the
costs of implementing the conservation plan.
Contracting officer. The NRCS employee authorized to sign GPCP
contracts on behalf of NRCS.
County program committee. A group of Federal, State, and local
officials selected by the designated conservationist. The committee
provides ideas to the designated conservationist regarding program
development and interagency program coordination.
Designated county. A county within a Great Plains state that the
Chief has designated for participation.
Designated conservationist. A district conservationist or other NRCS
employee who the state conservationist has designated to be responsible
for administration of the GPCP in a designated county.
District conservationist. The NRCS employee assigned to direct and
supervise NRCS activities in one or more conservation districts.
Great Plains area. The area comprising those counties within the
Great Plains states designated for GPCP participation.
Great Plains states. Colorado, Kansas, Montana, Nebraska, New
Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming.
Identifiable unit. A discernibly distinct component of a
conservation practice.
Land user. An individual, partnership, firm, joint-stock company,
corporation, association, trust, estate, or other nonpublic legal entity
having control of a unit of land. This definition includes two or more
persons having a joint or common interest.
Life span. The period of time specified in the contract and/or
operation and maintenance agreement during which the resource management
systems of component practices are to be maintained and used for the
intended purpose. Most practices will have a useful life beyond the
specified life span.
Operation and maintenance agreement. A document signed by both the
participant and the contracting officer outlining the operation and
maintenance requirements for applied conservation treatment.
Operating unit. A parcel or parcels of land, whether contiguous or
noncontiguous, constituting a single management unit for agricultural
purposes.
Other land. Nonagricultural land on which erosion must be controlled
to protect agricultural land and which can be covered by contract.
Participant. A land user who is a party to a GPCP contract.
Resource management system. A combination of conservation practices
identified by the land or water use that, if installed, will protect or
improve the soil or water resource base.
Specifications. Minimum guantity or quality requirements established
by NRCS to meet the standard for a specific conservation practice.
State conservationist. The NRCS employee authorized to direct and
supervise NRCS activities within the state.
State program committee. A group of Federal, state, and local
officials selected by the state conservationist. The committee provides
ideas to the state conservationist regarding program development,
coordination, general policies, and operating procedures of GPCP in the
state.
[[Page 518]]
Technical assistance. Guidance provided to land users regarding the
use and treatment of soil, water, plant, animal, and related resources.
This assistance may include conservation plan formulation, application,
and maintenance and is usually confined to those activities which the
recipient could not reasonably be expected to do without specialized
assistance.
Technical guide. A document containing detailed information on the
conservation of soil, water, plant, animal, and related resources
applicable specifically to the area for which it is prepared.
Sec. 631.3 Administration.
(a) NRCS is responsible for the administration of the Great Plains
Conservation Program (GPCP).
(b) The program shall be carried out in close cooperation with
interested Federal, state, and local government units and organizations.
The program in designated counties shall be coordinated with the long-
range program of conservation districts operating in such counties and
with other USDA activities.
(c) Applicants who have USDA-Farmers Home Administration (FmHA)
loans must furnish to NRCS satisfactory evidence that the conservation
plan used as a basis for the GPCP contract is compatible with assistance
provided by FmHA. Such evidence may consist of written acknowledgement
by the authorized FmHA official that the GPCP conservation plan is
compatible with the farm management plan prepared for FmHA program
purposes.
Sec. 631.4 Program applicability.
The program is applicable only to designated counties within the
Great Plains states. County designation is a responsibility of the NRCS
Chief.
Sec. 631.5 Land user eligibility.
Any land user in a designated county may file an application for
participation in the GPCP with the NRCS field office. A land user who
develops an acceptable conservation plan in cooperation with NRCS and
the conservation district that is in compliance with the terms and
conditions of the program is eligible to sign a contract.
Sec. 631.6 Land eligible for the program.
The program is applicable to:
(a) Privately owned land,
(b) Nonfederally owned public land under private control for the
contract period and included in the participant's operating unit, and
(c) Federally owned land, if installation of conservation practices
would directly benefit nearby or adjoining privately owned land of
persons who maintain and use the Federal land.
Sec. 631.7 Conservation treatment eligible for cost sharing.
(a) The state conservationist, in consultation with the state
program committee, shall select the resource management systems,
conservation practices, or identifiable units eligible for GPCP cost
sharing in the state.
(b) The designated conservationist, in consultation with the county
program committee, shall select from the state list the eligible
conservation systems, practices, or identifiable units eligible for GPCP
cost sharing in the county.
Sec. 631.8 Cost-share rates.
(a) The Federal rate may not exceed 80 percent.
(b) The maximum Federal rate (percentage) within each state for each
practice or identifiable unit shall be established by the state
conservationist.
(c) The maximum rate (percentage) for each county is established by
the designated conservationist not to exceed the state rate
(percentage).
(d) The rate (percentage) established by a state conservationist or
a designated conservationist shall not exceed the amount necessary and
appropriate to apply conservation treatment.
Sec. 631.9 Conservation plan.
(a) An applicant is responsible for developing a conservation plan,
in cooperation with the conservation district, that protects the
resource base in a manner acceptable to NRCS. This plan will be used as
a basis for developing a contract. Conservation treatment is to be
planned and implemented as a resource management system.
(b) The applicant decides how the land will be used and selects the
resource management systems that will
[[Page 519]]
achieve the applicant's objectives and provide protection of soil,
water, and related resources acceptable to NRCS. Eligible practices may
be included in the conservation plan to enhance fish and wildlife and
recreation resources, promote the economic use of land, and reduce or
control agriculture-related pollution.
(c) Technical assistance will be provided by NRCS, as needed by the
land user. NRCS may utilize the services of private, local, state, and
other Federal agencies in discharging its responsibilities for technical
assistance.
(d) Participants are responsible for accomplishing the conservation
plan and may use all available sources of assistance, including other
USDA programs that are consistent with the conservation plan.
(e) All conservation practices scheduled in the conservation plan
are to be carried out in accordance with the applicable NRCS technical
guide.
Subpart B_Contracts
Sec. 631.10 Contracts.
(a) To participate in the program, an applicant must enter into a
contract agreeing to implement a conservation plan. All persons who
control or share control of the operating unit for the proposed contract
period must sign the contract or one person with power-of-attorney may
sign the contract for all persons. The applicant must provide the
contracting officer with satisfactory evidence of control of the
operating unit for the life of the proposed contract.
(b) Contracts may be entered into not later than September 30, 1991.
The contract shall be for a period needed to establish the conservation
treatment scheduled in the conservation plan and must extend at least 3
years but not more than 10 years.
(c) Contracts may be transferred or modified by mutual consent. The
transferee assumes full responsibility for the contract including
operation and maintenance of all land treatment installed under the
contract. Also included are payments made under the contract to the
participant or preceding participants before and after the transfer.
(d) Contracts may be terminated by mutual consent or by NRCS for
cause.
Sec. 631.11 Conservation practice maintenance.
(a) Each participant is obligated to maintain the resource
management systems or conservation practices applied under the contract
for the duration of the contract. Practices installed before execution
of the contract are to be maintained as specified in the contract.
(b) If the life span of the practices or resource management systems
extends beyond the period of the contract, state conservationists may
make the operation and maintenance of those practices or systems a
condition of the contract. The length of such operation and maintenance
shall extend for the expected life span.
Sec. 631.12 Cost-share payments.
(a) Federal cost sharing shall be adjusted so that the combined cost
share by Federal and state government or subdivision of a state shall
not exceed 100 percent of the cost.
(b) Cost-share payments for completing resource management systems
or a practice or an identifiable unit according to specifications will
be made by NRCS as specified in the contract or as adjusted according to
Sec. 631.12(a).
Sec. 631.13 Disputes and appeals for matters other than contract
violations.
Applicants or participants may appeal decisions regarding matters
other than contract disputes under this part in accordance with part 614
of this title.
[60 FR 67316, Dec. 29, 1995]
Sec. 631.14 Contract violations.
Contract violations, determinations and appeals will be handled in
accordance with the terms of the contract and attachments thereto.
Violations involving fraud are to be handled in accordance with current
USDA regulations.
[[Page 520]]
Subpart C_Miscellaneous
Sec. 631.20 Setoffs.
(a) If any participant to whom compensation is payable under the
program is indebted to U.S. Department of Agriculture (USDA), or any
agency thereof, or is indebted to any other agency of the United States,
and such indebtedness is listed on the county claim control record
maintained in the office of the county ASC committee, the compensation
due the participant shall be set off against the indebtedness.
Indebtedness owing to USDA, or any agency thereof, shall be given first
consideration. Setoffs made pursuant to this section shall not deprive
the participant of any right to contest the justness of the indebtedness
involved either by administrative appeal or by legal action.
(b) Participants who are indebted to this program for any reason
will be placed on the USDA claim control record promptly by the state
conservationist after the participant has been given opportunity to pay
the debt.
Sec. 631.21 Compliance with regulatory measures.
Participants who carry out conservation practices shall be
responsible for obtaining the authorities, rights, easements, or other
approvals necessary for the implementation and maintenance of the
conservation practices in keeping with applicable laws and regulations.
Participants shall save the United States harmless from any
infringements upon the rights of others or from any failure to comply
with applicable laws or regulations.
Sec. 631.22 Access to operating unit.
Any authorized NRCS representative shall have the right to enter an
operating unit for the purpose of ascertaining the accuracy of any
representations made in a contract or leading up to a contract, and as
to the performance of the terms and conditions of the contract. Access
shall include the right to measure acreages, render technical
assistance, and inspect any work undertaken under the contract.
Sec. 631.23 State conservationist's authority.
The state conservationist may take the initiative to revise or
require revision of any determination made by the contracting officer or
the district conservationist in connection with the program, except that
the state conservationist may not revise any executed contract other
than as may specifically be authorized herein.
PART 632_RURAL ABANDONED MINE PROGRAM
Subpart A_General
Sec.
632.1 Purpose and scope.
632.2 Objectives.
632.3 Responsibilities.
632.4 Definitions.
Subpart B_Qualifications
632.10 Applicability.
632.11 Availability of funds.
632.12 Funding priorities.
632.13 Eligible lands and water.
632.14 Eligible land users.
632.15 Eligible uses and treatment of reclaimed lands.
632.16 Methods of applying planned land use and treatment.
632.17 Cost-share rates.
632.18 Special projects.
632.19 Crop history and allotments.
Subpart C_Participation
632.20 Application for assistance.
632.21 Reclamation plan.
632.22 Contracts.
632.23 Access to land unit and records.
Subpart D_Cost-Share Procedures
632.30 Applicability.
632.31 Cost-share payment.
Subpart E_Appeals and Violations
632.40 Appeals.
632.41 Violations.
632.42 Violation procedures.
Subpart F_Environment
632.50 Environmental evaluation.
632.51 Accord with environmental laws and orders.
632.52 Identifying typical classes of action.
Authority: Sec. 406, Pub. L. 95-87; 91 Stat. 460 (30 U.S.C. 1236).
[[Page 521]]
Source: 43 FR 44749, Sept. 28, 1978, unless otherwise noted.
Subpart A_General
Sec. 632.1 Purpose and scope.
(a) The purpose of this part is to set forth the Natural Resources
Conservation Service (NRCS) rules and regulations to carry out the Rural
Abandoned Mine Program under section 406, Pub. L. 95-87; 91 Stat. 460
(30 U.S.C. 1236).
(b) The Rural Abandoned Mine Program:
(1) Through the NRCS delivery system, assists land users to
voluntarily develop reclamation plans and apply conservation treatment
for the reclamation, conservation, and development of eligible coal-
mined lands and water, and
(2) Provides cost sharing through long-term contracts according to
an approved reclamation plan, to land users for establishing land use
and conservation treatment on these lands.
Sec. 632.2 Objectives.
(a) The objectives of the program are to protect people and the
environment from the adverse effects of past coal-mining practices and
to promote the development of the soil and water resources of
unreclaimed mined lands by:
(1) Stabilizing mined lands.
(2) Controlling erosion and sediment on mined areas and areas
affected by mining.
(3) Reclaiming lands and water for useful purposes.
(4) Enhancing water quality or quantity where it has been disturbed
by past coal-mining practices.
Sec. 632.3 Responsibilities.
(a) The Rural Abandoned Mine Program is administered by the U.S.
Department of Agriculture (USDA) through NRCS in accordance with the
delegation of responsibility contained in Sec. 601.1(h) of this chapter.
(1) The Chief of NRCS is responsible for national program management
and administration and for coordinating program operations with the
Office of Surface Mining (OSM), U.S. Department of the Interior.
(2) State conservationists (Responsible Federal Officials) are
responsible for program operations within a State including program
coordination with the State reclamation agency and the representatives
of OSM.
(b) The primary public contacts for program assistance are the
district conservationists located in local NRCS field offices.
(c) NRCS is assisted by other USDA agencies in accordance with
existing authorities and agreements in carrying out the program.
(d) NRCS is to coordinate Rural Abandoned Mine Program activities
with NRCS programs and the other reclamation programs authorized by Pub.
L. 95-87 that are carried out by the Office of Surface Mining of the
U.S. Department of the Interior, State reclamation agencies, and Indian
tribes. Coordination includes program development, development of
reclamation standards, preparation of special reports, requests for
funding, and related actions required to achieve coordination between
programs.
(e) NRCS is to consult with State and local reclamation committees
to obtain recommendations on program operation, evaluation of
applications for reclamation assistance, and public participation. The
NRCS State Conservationist is to use existing reclamation committees or
encourage the organization of a new State committee for this purpose.
The State Conservationist is to serve as a member when the committee is
functioning for the purposes of this program. Representatives of the
Office of Surface Mining, State reclamation agency, State water quality
agency, State conservation agency, and other agencies or groups are to
be invited to participate as members. Individual citizens may
participate through the State committee. Local committees, if needed,
are to be organized on a multicounty, county, conservation district, or
other appropriate area with a local membership structure similar to the
State committee. The district conservationist is to be a member of a
local reclamation committee organized to provide program guidance.
[43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980]
[[Page 522]]
Sec. 632.4 Definitions.
Abandoned mined lands. Unreclaimed coal-mined lands that existed
before August 3, 1977, and for which there is no continuing reclamation
responsibility on the part of a mine operator, permittee, or agent under
State or Federal law or on the part of the State as a result of a bond
forfeiture. See Sec. 632.13.
Average costs. The calculated cost, determined by recent actual
costs and current cost estimates, considered necessary for a land user
to carry out a conservation practice or an identifiable unit of a
conservation practice.
Conservation district. A legal subdivision of State government
responsible for developing and carrying out programs of soil and water
conservation with which the Secretary of Agriculture cooperates under
the Soil Conservation and Domestic Allotment Act of 1935.
Conservation treatment. Specific conservation or reclamation
practices applied to the land according to current standards and
specifications in NRCS technical guides.
Contract. A binding agreement between NRCS and the land user that
includes the reclamation plan and provides for cost sharing the
conservation treatment.
Contracting officer. The NRCS official authorized to enter into and
administer contracts for the Rural Abandoned Mine Program.
Cost. The monetary amount actually paid or obligated to be paid by
the land user for equipment use, materials, and services for carrying
out a conservation practice or identifiable unit. If the land user uses
his own resources, it includes the computed value of his labor,
equipment use, and materials.
Cost-share payments. Payments made to or on behalf of land users at
established rates as specified in contracts for carrying out a
conservation practice or an identifiable unit of such practices
according to the contract.
Financial burden. The land user's cost of reclamation that cannot be
expected to be recovered within the contract period and that would
probably prevent participation in the program. The land user must sign a
statement to substantiate financial burden.
Identifiable unit. A component of a conservation practice that can
be clearly identified as a step in carrying out the conservation
practice.
Inadequately reclaimed. Lands or water that are mined for coal or
are affected by mining conducted before August 3, 1977, which continue
in their present condition to substantially degrade the quality of the
environment, prevent or damage beneficial use of land or water
resources, or endanger the health or safety of the public.
Landrights. An interest acquired by fee simple title, easements, and
rights-of-way to occupy or use land, buildings, structures, or other
improvements.
Land user. Any person, partnership, firm, company, corporation,
association, trust, estate, other entity, or agent that owns or has
management control of the surface rights of the land during the contract
period or owns water rights on eligible lands. Also included are State
or local public entities that own or control eligible land and water.
Main benefits. The principal values or benefits that can be
identified and/or quantified as a result of reclamation. Main offsite
benefits are those values that accrue to surrounding land users or the
public in general as a result of the reclamation. Main onsite benefits
are those that accrue to the participant. Examples of principal values
or benefits include but are not limited to human lives and property
protected, reduction of erosion or sediment damage, elimination of
public safety or health hazards, improvement of water quality, improved
visual quality, improved fish or wildlife habitat, or restoration of
beneficial uses of reclaimed areas.
Reclamation committee. A committee on a local or State level
consisting of representatives of Federal and State agencies and other
organizations or individuals that have responsibilities or interest in
abandoned mine reclamation. The committee provides guidance to NRCS on
the operation of the Rural Abandoned Mine Program.
Reclamation plan. A conservation and development plan as referred to
in Pub. L. 95-87, consisting of a written record of land user decisions
on proposed use,
[[Page 523]]
conservation treatment, and maintenance of eligible lands and water that
will protect, enhance, and maintain the resource base. A reclamation
plan contains pertinent soils data, a planned land use map or drawing, a
record of use and treatment decisions including a schedule of
conservation treatment, and other resource data as appropriate.
Specified maximum costs. The maximum amount of cost-share money that
is to be paid to a land user for carrying out a conservation practice or
an identifiable unit of a conservation practice.
Standards and specifications. Requirements that establish the
acceptable quality level for planning, designing, and installing a
conservation practice so it achieves its intended purpose. NRCS
standards and specifications are contained in the NRCS field office
technical guides and are designed to be sound and practicable under
local conditions. Technical guides are on file in local NRCS field
offices.
Water rights. Any interest acquired in, priority established for, or
permission obtained for the use of water.
[43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980]
Subpart B_Qualifications
Sec. 632.10 Applicability.
This program applies to any county or other designated area within a
State that had abandoned or inadequately reclaimed coal-mined lands
within its borders before August 3, 1977.
Sec. 632.11 Availability of funds.
(a) The provisions of the program are subject to the annual
appropriation by Congress of funds from the Abandoned Mine Reclamation
Fund and the transfer of as much as 20 percent of these funds from the
Office to Surface Mining to NRCS for program operation.
(b) Allotments of Rural Abandoned Mine Program funds to state
conservationists are to reflect the national program needs, the
geographic areas from which the funds were derived, the funding priority
assigned to applications for program assistance, including benefits
expected to be derived, and the practicability and feasibility of the
reclamation work proposed.
Sec. 632.12 Funding priorities.
(a) All eligible applications within a State are to be assigned a
funding priority and subpriority. Assignment of a priority and
subpriority establishes the order in which the proposed reclamation work
will be selected and evaluated for funding. (See Sec. 632.20(b) for
additional selection criteria.) Applications for individual, joint, or
special projects (See Sec. 632.18) for areas of different priorities or
subpriorities are to be assigned the highest applicable priority or
subpriority. The funding priorities are as follows:
(1) Priority 1. Protection of public health, safety, general
welfare, and property from extreme danger of adverse effects of coal-
mining practices. Extreme danger means a condition that could be
expected to cause substantial physical harm to persons, property, or the
environment and to which persons or improvements on real property are
exposed.
(2) Priority 2. Protection of public health, safety, and general
welfare from the adverse effects of coal-mining practices that do not
constitute an extreme danger.
(3) Priority 3. Restoration of the land and water resources and the
environment where previously degraded by the adverse effects of coal-
mining practices, including measures for the conservation and
development of soil, water (excluding channelization), woodland, fish
and wildlife, recreation resources, and agricultural productivity. First
consideration in this priority is to be the reduction of offsite damage
affecting the public. Second consideration is to be given to restoring
to beneficial uses for the main benefit of the land user.
(b) Eligible and feasible applications for program assistance within
each priority category (Sec. 632.12(a)) are to be funded in the
following order:
(1) Individual persons or public entities who owned the eligible
area before May 2, 1977, and who neither consented to nor exercised
control over the mining operation.
[[Page 524]]
(2) Individual persons who would actively use the area, if
reclaimed, for agricultural or silvicultural purposes.
(3) All other participants.
[43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980]
Sec. 632.13 Eligible lands and water.
Lands and water eligible for reclamation are those that were mined
for coal or were affected by coal-mining processes and were abandoned or
inadequately reclaimed before August 3, 1977. These lands and water are
not eligible if:
(a) There is continuing reclamation responsibility on the part of a
mine operator, permittee, or agent under State or Federal law or on the
part of the State as a result of bond forfeiture. However, if the amount
of the bond forfeiture was insufficient to reclaim the area covered by
the bond, the area will be considered eligible.
(b) They are under Federal ownership and control.
(c) The surface rights are under easement or lease to be remined for
coal or other minerals.
Sec. 632.14 Eligible land users.
Landowners holding surface land and water rights, residents,
tenants, or their agents who own or have management control of eligible
land and/or water are eligible to participate in the program. Residents
or tenants who do not own the land must have control of the land for the
period of the proposed contract and have the written consent of the
landowner. Land users may participate by operating as persons,
partnerships, associations, corporations, estates, trusts, or non-
Federal public entities, and by acting individually or jointly with
other eligible land users. However, joint participation with other
eligible land users is required if the primary purpose of reclamation is
enhancement of water quality or quantity.
Sec. 632.15 Eligible uses and treatment of reclaimed lands.
(a) Reclaimed lands and water may be used for cropland, hayland,
pasture land, rangeland, woodland, wildlife land, natural areas,
noncommercial recreation land, and the supporting uses associated with
these land uses. Other land uses proposed by public entities for public
use and benefit such as open space, conservation uses, natural areas,
and recreation sites may be approved by the NRCS State conservationist
in accordance with the priorities stated in Sec. 632.12. However,
development of public sites, such as the installation of recreation
facilities, is not eligible for cost sharing.
(b) Reclaimed land use is determined by the objectives of the land
user, compatibility of the land use with surrounding land use, and the
practicability and feasibility of restoring the soil and water resources
to support the use selected.
(c) The maximum acreage of eligible lands and water that may be
offered for contract under one ownership is 320 acres for the life of
the program.
(d) Conservation treatment eligible for Federal cost sharing
includes the combination of practices needed and feasible to achieve:
(1) Protection of life, property, and elimination of public health
and safety hazards, including land stabilization.
(2) Restoration of the environment where degraded by past mining,
including water quality, visual quality, recreation resources, fish and
wildlife habitat, and erosion and sediment control.
(3) A site that can be developed for a beneficial use as specified
in Sec. 632.15(a). Examples of eligible treatment that may be cost
shared include but are not limited to: Land shaping and grading,
critical area planting or other plantings for stabilization, improving
visual quality, wildlife food and cover, diversions or terraces,
waterways or lined ditches, grade stabilization structures, sediment
basins, and special practices for sealing shafts and tunnels, correcting
subsidence problems, or other unusual situations. Practices not eligible
for cost sharing are those that are solely applied to develop a
reclamation site (including sites developed by public entities for
public use), increase the production of crops, or for the recurring
maintenance of applied reclamation.
(e) Applied conservation treatment is to meet the applicable Federal
and State standards for the reclamation
[[Page 525]]
and conservation treatment of abandoned or inadequately reclaimed coal-
mined lands and water. Where needed, these standards are incorporated in
local NRCS technical guides as the NRCS standards and specifications
applicable to the program. Special practices as specified in
Sec. 632.15(d) are to be developed in cooperation with appropriate State
or Federal agencies having the expertise or responsibility for the
practices.
(f) NRCS State conservationists, in consultation with the State
reclamation committee, are to:
(1) Develop a list of practices that are eligible for cost sharing,
and
(2) Maintain, as applicable, lists of average costs of applying
conservation treatment to eligible lands and waters.
Sec. 632.16 Methods of applying planned land use and treatment.
(a) Land users may arrange to apply the planned land uses and
conservation treatment specified in the contract by one or more of the
following methods:
(1) By performing the required treatment with his own labor and
equipment.
(2) By hiring a qualified contractor to install the required
treatment.
(3) By requesting NRCS to award and administer a contract to perform
the required treatment in accordance with 41 CFR chapters I and IV.
(b) State conservationists are to develop criteria specifying the
conditions for which NRCS will award and administer a contract. Criteria
will consider: Type of equipment required, type and amount of
conservation treatment required, costs of the required reclamation,
needs of the land user, and the applicable cost-share rate. If the
Federal share is less than 100 percent, a land user must put up his
estimated share of the cost before NRCS awards the contract.
Sec. 632.17 Cost-share rates.
(a) Cost-share rates paid by the Federal Government are to be
established and issued as instructions by the NRCS Administrator in
accordance with the following criteria:
(1) For 120 acres or less, the cost-share rate is to provide up to
80 percent of the costs of land use and conservation treatment depending
on the income-producing potential of the land after reclamation.
However, this rate may be increased to a level required to obtain
participation if the main benefits of reclamation are offsite (in the
public interest) and there is a declaration of financial burden by the
participant.
(2) The rate on acreage in excess of 120 acres up to 320 acres
maximum is to be reduced by up to 0.5 percent per acre. This reduced
rate applies to the entire acreage offered for contract.
Sec. 632.18 Special projects.
(a) The NRCS State conservationist may approve the following types
of special projects subject to the eligibility requirements, funding
priorities, and cost-share rates as stated in Sec. Sec. 632.12, 632.13,
632.14, 632.15, and 632.17:
(1) Field trials or demonstration projects recommended by the State
reclamation committee.
(2) Projects to enhance water quality and quantity where past coal-
mining practices disturbed local water supplies and where joint action
by a group of eligible land users in cooperation with Federal and State
agencies is needed to restore the water resource.
Sec. 632.19 Crop history and allotments.
(a) Most crop history and allotments on eligible lands were
discontinued at the time of mining. However, if eligible lands are
classified as cropland at the time the contract is signed, the cropland
crop history and allotment, if any, may be:
(1) Preserved for a period not to exceed twice the length of the
contract as provided in 7 CFR part 719, or
(2) Voluntarily surrendered by the land user.
Subpart C_Participation
Sec. 632.20 Application for assistance.
(a) Land users must submit an application for program assistance
through the local conservation district or NRCS field office. NRCS is to
announce dates for receiving applications through local media.
Applications are to be reviewed by the conservation district and/or
local reclamation committee,
[[Page 526]]
which is to verify eligibility and recommend funding priorities to the
NRCS district conservationist. The NRCS district conservationist is to
assign funding priorities according to the recommendations unless he
determines that applications are incomplete, ineligible, or unfeasible.
Low priority applications that cannot be serviced within specific time
periods established by the State conservationist are to be returned to
the applicant with an appropriate explanation. These applicants may
reapply at a later date if they are still interested.
(b) Eligible applicants are serviced within each subpriority
according to the following criteria:
(1) The specific type, amount, and relative importance of benefits
to be derived. (Public benefits and offsite environmental improvement
will take precedence over onsite benefits.)
(2) Feasibility and practicability of reclaiming for the proposed
uses.
(3) Land user's ability to proceed.
(4) Date of the application.
Sec. 632.21 Reclamation plan.
(a) Responsibility. Land users are responsible for developing a
reclamation plan that will serve as a basis for a contract. Normally, a
land user will need the technical services of NRCS and the conservation
district or another professional to develop an acceptable plan.
(b) Objectives and priorities. The reclamation plan is to provide
for the appropriate program objectives and priorities as stated in
Sec. Sec. 632.2 and 632.12 and meet the definition of a reclamation plan
as defined in Sec. 632.4.
(c) Review. (1) In areas served by conservation districts,
reclamation plans are to be reviewed and signed by the district board to
insure that planned land use and treatment is compatible with
surrounding land uses and that proposed assistance is consistent with
the district plan of work and priorities. In areas not served by
conservation districts, the land use compatibility review may be
performed by the local reclamation committee.
(2) If reclamation plans include lands within or adjacent to Federal
lands, the plan is to be reviewed with the appropriate Federal land
management agency to insure that the planned land use is compatible with
that of the surrounding area.
(3) Land users are responsible for insuring that the proposed land
use and treatment is compatible with local land use ordinances.
(d) Approval. Proposed land use, conservation treatment, and
sequence of application contained in the plan are to be agreed to by
both NRCS and the land user. The district conservationist is to sign the
reclamation plan to indicate technical approval.
Sec. 632.22 Contracts.
(a) Cost-sharing contracts. A land user who has an approved
reclamation plan may enter into a contract with NRCS to receive Federal
cost-share assistance. All land users are to sign the contract. A land
user is required to furnish evidence of management control, such as a
long-term lease, recorded deed, or land contract, and must have the
written consent of the landowner. The NRCS contracting officer is to
sign the contract after determining that all documents meet program
requirements.
(b) Effect of contract. A land user who signs a contract is
obligated to apply or arrange for the application of the land use and
conservation treatment as scheduled in the reclamation plan according to
approved standards and specifications. A land user may request NRCS to
award and administer a contract to apply the conservation treatment as
scheduled in the reclamation plan in accordance with Sec. 632.16(a)(3).
(c) Permits, landrights, and water rights. The land user is
responsible for obtaining the permits, surface land- rights, and water
rights that may be required to perform the planned work. NRCS is to
assist land users in identifying the specific permit, landright, or
water right required.
(d) Operation and maintenance. During the contract period the land
user is responsible for the operation and maintenance of applied
conservation treatment. Operation and maintenance requirements are to be
included in the contract.
(e) Period of contract. The contract period is to be no less than 5
nor more than 10 years. A contract is to extend
[[Page 527]]
for at least 3 years after the application of the last cost-shared
conservation treatment to insure adequate establishment of vegetation
and other treatment. Exceptions to the 3-year provision may be granted
by the state conservationist for unusual circumstances.
(f) Transfer of contract. (1) If during the contract period all or
part of the right and interest in the land is transferred by sale or
other action, the contract is terminated on the land unit that was
transferred and the land user:
(i) Forfeits all right to any future cost-share payments on the
transferred land unit, and
(ii) Must refund cost-share payments that have been made on the
transferred land unit not to exceed the difference between the estimated
value of the land at the time of entering into the contract and at the
time of transfer, unless the new land user becomes a party to the
contract as provided in paragraph (f)(2) of this section.
(2) If the new land user becomes a party to the contract:
(i) He is to assume all obligations of the previous land user on the
transferred land unit.
(ii) The contract with the new land user is to remain in effect with
the original terms and conditions.
(iii) The contract is to be modified in writing to show the changes
caused by the transfer. If the modification is not acceptable to the
contracting officer, the provisions of paragraphs (f)(1) (i) and (ii) of
this section apply.
(3) The transfer of all or part of a land unit by a land user does
not affect the rights and obligations of other land users who have
signed the contract.
(g) Modification of contract. (1) A contract previously entered into
with a land user may be modified only with the approval of the State
conservationist or as authorized under established policies. No contract
may be modified unless it is determined that the modification is
desirable to carry out the program.
(2) Contracts may be modified to add, delete, substitute, or reapply
conservation treatment if:
(i) Applied conservation treatment failed to achieve the desired
results through no fault of the land user,
(ii) Applied treatment deteriorated because of conditions beyond the
control of the land user, or
(iii) Other treatment is substituted that will achieve the desired
results.
(h) Joint contract. A land user may enter a contract jointly with
other land users subject to the 320 acres maximum limitation per
landowner. However, joint participation is permitted only if it will
result in better land use and treatment than individual participation or
if it is required by Sec. Sec. 632.14 and 632.18(a)(2).
(i) Termination of contract. Contracts may be terminated by mutual
consent of the signatories only if the State conservationist determines
that the termination is authorized under established policies and is in
the public interest. In this case, the State conservationist is to
determine the amount of refund.
Sec. 632.23 Access to land unit and records.
Any authorized NRCS employee or agent is to have the right of access
to land under application or contract and the right to examine any
program records to ascertain the accuracy of any representations made in
the application or contract. This includes the right to furnish
technical assistance and to inspect work done under the contract.
Subpart D_Cost-Share Procedures
Sec. 632.30 Applicability.
This subpart contains procedures for making cost-share payments to a
land user when land use and conservation treatment is applied as
specified in Sec. 632.16(a)(1) or (2).
Sec. 632.31 Cost-share payment.
(a) Amount of cost-share payment. Cost-share payments are to be made
at rates specified in the contract. The cost-share payment is to be
determined by one of the following methods:
(1) Average cost.
(2) Actual cost but not more than the average cost.
(3) Specified maximum cost. If the average cost or the specified
maximum cost at the time of starting the installation of a conservation
practice or
[[Page 528]]
identifiable unit is less than the cost specified in the contract,
payment is to be made at the lower rate. If the cost at the start of
installation is higher, payment may be made at the higher rate. A
contract modification is necessary if NRCS determines that the higher
cost is a significant increase in the total cost-share obligation. If
costs are significant, cost-share payment is not to be made until the
modification reflecting the increase is approved. If the higher costs
are not significant, cost-share payments may be made if funds are
available.
(b) Time of payment. Cost-share payments are to be made to the land
user after a practice or an identifiable unit has been satisfactorily
applied. The land user is to submit claims for payment to the district
conservationist no later than September 30 of the year after
application. Late claims require approval of the State conservationist
before payment can be made. A claim is to show the proportion of each
land user's contribution to the applied practice or identifiable unit.
(c) Approval. The district conservationist must certify that a
practice or identifiable unit has been satisfactorily applied before
NRCS can make cost-share payments.
(d) Ineligible claim. A land user is not eligible to receive cost-
share payments for a practice or an identifiable unit that was not
carried out under program requirements.
(e) Authorization for payment. (1) Materials or services needed to
carry out contracts are to be obtained by land users. Contracts may
provide for part or all of the cost-share payment for a practice or
identifiable unit to be made directly to suppliers of materials or
services. The materials or services must be delivered or performed
before payment is made.
(2) The contracting officer is to authorize payment for materials or
services not exceeding:
(i) The cost share of the material or service used, or
(ii) The total cost share of the practices or identifiable unit if
requested by the land user.
(3) The land user who purchases materials or services to carry out a
contract is responsible for them until the district conservationist
determines that the material or service was used for the intended
purpose. If a material or service cost-shared by NRCS is used for a
purpose other than to carry out the contract, the land user is indebted
to the United States for the cost of the misused material or service.
This indebtedness is to be repaid to NRCS as a refund or withheld from
cost-share payments otherwise due the land user under the contract.
(4) NRCS has the right to inspect materials or services and to take
samples for testing. Inspections by NRCS will not be necessary if NRCS
considers State inspection regulations adequate.
(5) Materials or services must meet the quality standards as
specified. NRCS may make exceptions for materials or services that do
not meet the standards only if they will satisfactorily serve the
intended purpose. NRCS is to deduct from the cost-share payment the
difference between the price of the materials or services specified and
the actual value of the different materials or services.
(f) Division of cost-share payments. Federal cost-share payments
made directly to suppliers of materials or services are credited to the
land user who was issued the authorization. The remainder of the cost
share is credited to the land user who carried out the remainder of the
practice or identifiable unit. If more than one land user contributed to
carrying out a practice or identifiable unit, the cost-share payment is
to be divided proportionately according to the contribution made by each
of the land users. Furnishing a landright or water right is not a
contribution for cost-share payment purposes.
(g) Other aid. Non-Federal public entities may furnish all or part
of the land user's portion of the cost of applying a practice or
identifiable unit with no reduction in the Federal cost share.
(h) Assignments and claims. Land users may not assign cost-share
payments except as provided under the authority of 31 U.S.C. 203, as
amended by 41 U.S.C. 15. Federal cost-share payments due any land user
are not subject to claims for advances except as provided in this
section.
[[Page 529]]
Subpart E_Appeals and Violations
Sec. 632.40 Appeals.
Land users may appeal decisions under this part in accordance with
part 614 of this title.
[60 FR 67316, Dec. 29, 1995]
Sec. 632.41 Violations.
(a) Actions causing violation. The following actions constitute
violation of a contract by a land user:
(1) Knowingly or negligently damaging or causing conservation
treatment to be impaired.
(2) Adopting land use or treatment that tends to defeat the program
purposes during the period of the contract.
(3) Failing to comply with the terms of the contract.
(4) Filing a false claim.
(5) Misusing an authorization.
(b) Effect of violation--(1) Contract to be terminated. (i) By
signing a contract, the land user agrees to forfeit all rights to
further cost-share payments under a contract and to refund cost-share
payments received not to exceed the difference between the estimated
value of the land at time of entering into the contract and the value at
time of termination, if the contracting officer, with approval of the
State conservationist, determines that:
(A) There was a violation of the contract during the time the land
user had control of the land, and
(B) The violation was of a nature as to warrant termination of the
contract.
(ii) The land user is to be obligated to refund cost-share payments
and cost shares paid under authorizations not to exceed the difference
between the estimated value of the land at time of entering into the
contract and the value at time of termination.
(2) Contract not terminated. (i) By signing a contract, the land
user agrees to refund cost-share payments received under the contract or
to accept payment adjustment if the contracting officer, with the
approval of the State conservationist, determines that:
(A) There was a violation of the contract during the time the land
user had control of the land, and
(B) The nature of the violation does not warrant termination of the
contract.
(ii) Payment adjustments may include decreasing the rate of a cost
share, deleting a cost-share commitment from the contract, or
withholding cost-share payments earned but not paid. The land user who
signs the contract may be obligated to refund cost-share payments and
cost shares paid under authorizations.
Sec. 632.42 Violation procedures.
(a) Scope. This section prescribes the regulations dealing with
contract violations. The Chief reserves the right to revise or
supplement any of the provisions of this section at any time if the
action does not adversely affect the land user, or if the land user has
been officially notified before this action is taken. No cost-share
payment shall be made pending the decision on whether a contract
violation has occurred.
(b) Determination by contracting officer. On notification that a
contract violation may have occurred, the contracting officer is to:
(1) Determine, with the approval of the State conservationist, that
a violation did not occur or that the violation was of such a nature
that no penalty of forfeiture, refund, or payment adjustment is
necessary. No notice is issued to the land user, and no further action
is to be taken; or
(2) Determine that a violation did occur, but the land user agrees
to accept the penalty. If the land user agrees in writing to accept a
penalty of forfeiture, refund, payment adjustment or termination, no
further action is to be taken. The land user's agreement to accept the
penalty must be approved by the contracting officer and State
conservationist.
(c) Notice of possible violation. (1) When the State conservationist
is notified that a contract violation may have occurred that may warrant
a penalty of forfeiture, refund, payment adjustment, or termination, he
is to notify, in writing, each land user who signed the agreement of the
alleged violation. This notice may be personally delivered or sent by
certified or registered mail. A land user is considered to have
[[Page 530]]
received the notice at the time of personal receipt acknowledged in
writing, at the time of the delivery of a certified or registered
letter, or at the time of the return of a certified or registered letter
where delivery was refused.
(2) The notice setting forth the nature of the alleged violation is
to give the land user an opportunity to appear at a hearing before a
hearing officer designated by the State conservationist. The land user's
request for a hearing is to be submitted in writing and must be received
in the NRCS field office within 30 days after receipt of the notice. The
land user is to be notified in writing by the hearing officer of the
time, date, and place for the hearing. The land user is to have no right
to a hearing if he does not file a written request for a hearing, or if
he or his representative does not appear at the appointed time, unless
the hearing officer, at his discretion, permits an appearance. A request
for a hearing filed by a land user is considered to be a request by all
land users who signed the contract.
(d) Hearing. A public hearing is to be conducted to obtain the facts
about the alleged violation. The hearing officer is to limit the hearing
to relevant facts and evidence and is not to be bound by the strict
rules of evidence as required in courts of law. Witnesses may be sworn
in at the discretion of the hearing officer.
(1) The land user or his representative is to be given full
opportunity to present oral or documentary evidence about the alleged
violation. Likewise, the United States may submit statements and
evidence. Individuals not otherwise represented at the hearing may be
permitted, at the discretion of the hearing officer, to give information
of evidence. The hearing officer, at his discretion, may permit
witnesses to be cross-examined.
(2) The hearing officer is to make a record of the hearing so that
the testimony can be summarized. A summary of the testimony may be made
if both the land user and the State conservationist agree. A transcript
of the hearing is to be made if requested by either the State
conservationist or the land user within 10 days of the hearing. If a
transcript is requested by the land user, the land user may be assessed
the cost of a copy of the transcript.
(3) The hearing officer is to close the hearing after a reasonable
period of time if the land user or his representative is not present at
the scheduled time. The hearing officer may, at his discretion, accept
information and evidence submitted by others present for the hearing.
(4) The hearing officer is to furnish the State conservationist with
a written report setting forth his findings, conclusions, and
recommendations. The report is to include the summary of testimony or
transcript made of the hearing and any other information that would aid
the State conservationist in reaching his decision.
(e) Decision by State conservationist. The State conservationist is
to make a decision after considering the hearing officer's report,
including recommendations of the conservation district board if any, and
any other information available to him, including, if applicable, the
amount of the forfeiture, refund, or payment adjustment. The decision is
to state whether the violation is of such a nature as to warrant
termination of the contract. The State conservationist is to notify, in
writing, each land user who signed the contract of his decision. The
State conservationist may authorize or require the reopening of any
hearing before a hearing officer for any reason at any time before his
decision.
(f) Appeal to Chief. Any land user affected by a decision of the
State conservationist has the right of appeal to the Chief. The appeal
and any briefs or statements must be received in the Office of the Chief
within 30 days after the land user has received notice of the State
conservationist's decision. The State conservationist is to file a brief
or statement in the Office of the Chief within 20 days after the land
user's brief or statement is received there. The appeal is to be limited
to the records and the issues made before the State conservationist. The
Chief's decision is final. The decision is to be determined by the
record before him and the issues presented in the appeal, and the land
user is to be notified in writing.
[[Page 531]]
(1) If the decision provides for termination of the contract, it is
to state that the contract is terminated, that all rights to further
cost-share payments under the contract are forfeited, and that cost-
share payments received under the contract are to be refunded, but the
refund is not to exceed the difference between the estimated value of
the land at time of entering into the contract and the value at time of
termination. The decision is to state the amount of refund and method of
payment.
(2) If the decision does not provide for termination of the
contract, the land user may be required to make a refund of cost-share
payments or to accept payment adjustments. The decision is to state the
amount of refunds of cost-share payments or payment adjustments. In
determining amounts of refund or payment adjustments, the following are
to be considered:
(i) The extent of the violation.
(ii) Whether the violation was deliberate or the result of
negligence or was caused by circumstances beyond the control of the land
user.
(iii) The effect on the program if no refund or payment adjustment
is required.
(iv) The extent to which the land user benefited by the violation.
(v) The effect of the violation on the contract as a whole.
(vi) Other considerations including the appropriateness and
reasonableness of the refund or payment adjustment.
[43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980]
Subpart F_Environment
Sec. 632.50 Environmental evaluation.
(a) Environmental evaluation is an integral part of planning used by
NRCS in developing each reclamation plan under this program. Planning
includes site inventory and analysis, evaluation of reasonable
alternatives, and identification of significant environmental impacts.
Major points in planning when NRCS or the land user can make decisions
concerning further action are:
(1) After an evaluation of the application for program assistance to
verify eligibility, land user objectives, and priorities for funding.
(2) After a site-specific inventory and analysis to evaluate
feasible treatment alternatives, costs, and environmental impacts.
(3) After development of an acceptable reclamation plan as a basis
for contract.
(4) Before the signing of a mutually acceptable contract for
financial cost-share assistance.
(b) The scope and complexity of the assessment is to be consistent
with the scope and complexity of the proposed reclamation.
(c) An interdisciplinary team, consisting of NRCS and/or other
cooperating agency personnel as needed, is used in making the
assessment.
(d) The Responsible Federal Official (RFO) is to use the
environmental evaluation to make a decision concerning the need to
prepare an environmental impact statement (EIS) in accordance with
Sec. 632.52.
[43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980]
Sec. 632.51 Accord with environmental laws and orders.
(a) A final program EIS is available in compliance with section
102(2)(c) of the National Environmental Policy Act of 1969 (NEPA). This
statement discloses the cumulative program impacts that significantly
affect the quality of the human environment.
(b) The program is to be conducted in accordance with other laws and
Executive orders concerning environmental protection.
(c) Channelization of streams is prohibited under this program.
Channelization as used herein means the overall widening, deepening,
realining, or constructing a nonvegetative protective lining over all or
part of the perimeter of a perennial stream channel as described in NRCS
Channel Modification Guidelines, Part B, Items 4, 5, 6, and 7, as
published in the Federal Register on March 1, 1978 (43 FR 8278).
[[Page 532]]
Sec. 632.52 Identifying typical classes of action.
(a) The RFO will analyze the environmental assessment of the
proposed action to determine which of the following classes of action
applies. This determination will be recorded and will be available to
the public on request.
(1) Actions not requiring a site-specific EIS. All proposed actions
and their impacts that are determined to be adequately discussed in the
program EIS or determined not to be major Federal actions will not
require a site-specific EIS. However, if the assessment reveals that
these proposed actions will have significant adverse effects on the
quality of the human environment, the RFO will:
(i) Modify the action to eliminate or mitigate the significant
adverse impacts, or
(ii) Withdraw further Federal assistance if significant adverse
impacts cannot be eliminated or mitigated.
(2) Actions requiring a site-specific EIS. A site-specific EIS is
required for proposed actions if their impacts are not adequately
discussed in the program EIS, and the proposal is determined to be a
major Federal action significantly affecting the quality of the human
environment in accordance with Sec. 650.7(b) of this chapter. When a
decision is made to prepare an EIS, a Notice of Intent will be published
in the Federal Register. The content and format of the EIS is to be
consistent with the format of the program EIS and use scoping and
tiering techniques to focus on the significant environmental issues.
(3) Actions excluded from the EIS requirements. Those actions taken
to prevent loss of life or property under the extreme danger provisions
of priority 1 as described in Sec. 632.12. These actions are determined
by a limited environmental assessment that reasonably identifies the
possible loss of life or property.
PART 633_WATER BANK PROGRAM
Sec.
633.1 Purpose and scope.
633.2 Definitions.
633.3 Administration.
633.4 Program requirements.
633.5 Application procedures.
633.6 Program participation requirements.
633.7 Annual payments.
633.8 Cost-share payments.
633.9 Conservation plan.
633.10 Modifications.
633.11 Transfer of an interest in an agreement.
633.12 Termination of agreements.
633.13 Violations and remedies.
633.14 Debt collection.
633.15 Payments not subject to claims.
633.16 Assignments.
633.17 Appeals.
633.18 Scheme and device.
Authority: 16 U.S.C. 1301-1311.
Source: 62 FR 48472, Sept. 16, 1997, unless otherwise noted.
Sec. 633.1 Purpose and scope.
The regulations in this part set forth the policies, procedures, and
requirements for the Water Bank Program (WBP) as administered by the
Natural Resources Conservation Service (NRCS) for program
implementation.
Sec. 633.2 Definitions.
The following definitions shall be applicable to this part:
Adjacent land means land on a farm which adjoins designated types 1
through 7 wetlands and is considered essential for the protection of the
wetland or for the nesting, breeding, or feeding of migratory waterfowl.
Adjacent land need not be contiguous to the land designated as wetland,
but cannot be located more than one quarter of a mile away.
Agreement means the document that specifies the obligations and
rights of any person who has been accepted for participation in the WBP.
Annual payment means the consideration paid to a participant each
year for entering an agreement with the NRCS under the WBP.
Chief means the Chief of the Natural Resources Conservation Service
or the person delegated authority to act for the Chief.
Conservation District is a subdivision of a State government
organized pursuant to applicable State law to promote and undertake
actions for the conservation of soil, water, and other natural
resources.
[[Page 533]]
Conservation plan means a written record of the land user's decision
on the use and management of the wetland and adjacent areas covered by
the agreement.
Cost-share payment means the payment made by the NRCS to achieve the
protection of the wetland functions and values of the agreement area in
accordance with the conservation plan.
Landowner means a person or persons having legal ownership of
farmland, including those who may be buying farmland under a purchase
agreement. Landowner may include all forms of collective ownership
including joint tenants, tenants in common, and life tenants and
remaindermen in a farm property.
Natural Resources Conservation Service (NRCS) is an agency of the
United States Department of Agriculture, formerly called the Soil
Conservation Service.
Operator means the person who is in general control of the farming
operations on the farm during the crop year.
Person means one or more individuals, partnerships, associations,
corporations, estates or trusts, or other business enterprises or other
legal entities and, whenever applicable, a State, a political
subdivision of a State, or any agency thereof.
Practice means a measure necessary or desirable to accomplish the
desired program objectives.
State Technical Committee means a committee established by the
Secretary of the United States Department of Agriculture in a State
pursuant to 16 U.S.C. 3861. The State Conservationist will be the
chairperson of the State Technical Committee.
U.S. Fish and Wildlife Service is an agency of the United States
Department of the Interior.
Wetlands mean the inland fresh areas defined under 16 U.S.C. 1302
and described as types 1 through 7 in Circular 39, Wetlands of the
United States, as published by the United States Department of the
Interior.
Wetlands functions and values mean the hydrological and biological
characteristics of wetlands and the social worth placed upon these
characteristics, including:
(1) Habitat for migratory birds and other wildlife, in particular at
risk species;
(2) Protection and improvement of water quality;
(3) Attenuation of water flows due to flooding;
(4) The recharge of ground water;
(5) Protection and enhancement of open space and aesthetic quality;
(6) Protection of flora and fauna which contributes to the Nation's
natural heritage; and
(7) Contribution to educational and scientific scholarship.
WBP means the Water Bank Program.
Sec. 633.3 Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Chief.
(b) As determined by the Chief and the Administrator of the Farm
Service Agency, the NRCS will seek the agreement of the Farm Service
Agency in establishing policies, priorities, and guidelines related to
the implementation of this part.
(c) The State Conservationist will consultation with the State
Technical Committee, on program administration and related policy
matters. No determination by the State Technical Committee shall compel
the NRCS to take any action which the NRCS determines will not serve the
purposes of the program established by this part.
(d) The NRCS may enter into cooperative agreements with Federal or
State agencies and with private conservation organizations to assist the
NRCS with educational efforts, agreement management and monitoring,
program implementation assistance, and to assure a solid technical
foundation for the program.
(e) The NRCS shall consult with the U.S. Fish and Wildlife Service
in the implementation of the program and in establishing program
policies.
(f) The Chief may allocate funds for such purposes related to
special pilot programs for wetland management and monitoring,
emergencies, cooperative agreements with other Federal or State agencies
for program implementation, coordination of enrollment
[[Page 534]]
across State boundaries, or for other goals of the WBP found in this
part.
Sec. 633.4 Program requirements.
(a) General. Under the WBP, the NRCS will enter 10-year agreements
with eligible persons who voluntarily cooperate in the protection of
wetlands and associated lands. To participate in WBP, a person will
agree to the implementation of a conservation plan, the effect of which
is to protect, enhance, maintain, and manage the hydrologic conditions
of inundation or saturation of the soil, native vegetation, and natural
topography of eligible lands. The NRCS may provide cost-share assistance
for the activities that promote the protection of wetland functions and
values. Specific protection actions may be undertaken by the participant
or other NRCS designee.
(b) Participant eligibility. To be eligible to participate in the
WBP, a person must:
(1) Be the landowner of eligible land for which enrollment is
sought; or
(2) Have possession of the land by written lease over all designated
acreage in the agreement for at least two years preceding the date of
the agreement and will have possession over the all designated acreage
for the agreement period.
(c) Eligible land. (1) The NRCS shall determine whether land is
eligible for enrollment and whether, once found eligible, the lands may
be included in the program based on the likelihood of successful
protection of wetland functions and values when considering the cost of
entering the agreement and protection costs. Land placed under an
agreement shall be specifically identified and designated for the period
of the agreement.
(2) The following land is eligible for enrollment in the WBP:
(i) Privately owned inland fresh wetland areas of types 1 through 7.
(ii) Privately owned inland fresh wetland areas of types 1 through 7
which are under a drainage easement with the U.S. Department of the
Interior or with a State government which permits agricultural use; or
(iii) Other privately owned land which is adjacent to or within one
quarter mile of designated types 1 through 7 wetlands and which is
determined by the State Conservationist to be essential for the nesting,
breeding, or feeding of migratory waterfowl, or for the protection of
wetland.
(d) Ineligible land. The following land is not eligible for
enrollment in the WBP:
(1) Converted wetlands if the conversion was in violation of 16
U.S.C. 3821 et seq.;
(2) Lands owned by an agency of the United States;
(3) Land which is set aside or diverted under any other program
administered by the Department of Agriculture;
(4) Land which is harvested in the first year of the agreement
period prior to being designated, except for land on which timber is
harvested in accordance with a Forest Management Plan which is included
in the conservation plan and is approved by the State forester or
equivalent State official;
(5) Lands where implementation of agreement practices would be
futile due to on-site or off-site conditions; and
(6) Land on which the ownership has changed during the 2-year period
preceding the first year of the agreement period unless:
(i) The new ownership was acquired by will or succession as a result
of the death of the previous owner,
(ii) The land was acquired by the owner or operator to replace
eligible land from which he was displaced because of its acquisition by
any Federal, State, or other agency having the right of eminent domain,
or
(iii) The new owner operated the land to be designated for as long
as 2 years preceding the first year of the agreement and has control of
such land for the agreement period.
Sec. 633.5 Application procedures.
(a) Application for participation. To apply for enrollment, a person
must submit an application for participation in the WBP.
(b) Preliminary agency actions. The NRCS must certify that the
designated acreage that would be placed under an agreement constitutes a
viable wetland unit, contains sufficient adjacent land
[[Page 535]]
to protect the wetland, and provides essential habitat for the nesting,
breeding or feeding of migratory waterfowl.
(c) Where funds allocated to the State do not permit accepting all
requests which are filed, the State Conservationist, in consultation
with the State Technical Committee, may establish ranking criteria and
limit the approval of requests for agreements in accordance with the
ranking scheme. Any ranking scheme shall consider estimated costs of the
agreement, costs of protection, availability of matching funds,
significance of wetland functions and values, and estimated success of
protection measures.
(d) The NRCS may place higher priority on certain geographic regions
of the State where the protection of wetlands may better achieve NRCS
State and regional goals and objectives.
(e) Notwithstanding any limitation of this part, the State
Conservationist may enroll eligible lands at any time in order to
encompass total wetland areas subject to multiple ownership or otherwise
to achieve program objectives. Similarly, the State Conservationist may,
at any time, exclude otherwise eligible lands if the participation of
the adjacent landowners is essential to the successful protection of the
wetlands and those adjacent landowners are unwilling to participate.
Sec. 633.6 Program participation requirements.
(a) WBP Agreement. An agreement shall be executed for each
participating farm. The agreement shall be signed by the owner of the
designated acreage and any other person who, as landlord, tenant, or
share cropper, will share in the payment or has an interest in the
designated acreage. There may be more than one agreement for a farm.
(b) Agreement period. The agreement period shall:
(1) Be for a term of 10 years;
(2) Become effective on January 1 of the year in which the agreement
is approved except that the agreement shall become effective on January
1 of the next succeeding year in cases where, at the time the agreement
is approved, the NRCS determines that the agreement signers will be
unable to comply with the provisions of paragraph (c) of this section in
the year in which such agreement is approved.
(c) Agreement terms and conditions. The acreage designated under an
agreement shall:
(1) Be maintained for the agreement period in a manner which will
preserve, restore, or improve the wetland character of the land;
(2) Not be drained, burned, filled, or otherwise used in a manner
which would destroy the wetland character of the acreage, except that
the provisions of this paragraph shall not prohibit the carrying out of
management practices which are specified in a conservation plan for the
farm;
(3) Not be used as a dumping area for draining other wetlands,
except where the State Conservationist determines that such use is
consistent with the sound management of wetlands and is specified in the
conservation plan;
(4) Not be used as a source of irrigation water;
(5) Not be used for the harvesting of a crop;
(6) Not be hayed except for during periods of severe drought and
only under conditions prescribed by the State Conservationist in
consultation with the Secretary of the Interior or his designee; and
(7) Not be grazed, except as may be specified in the conservation
plan.
Sec. 633.7 Annual payments.
(a) Person on the farm having an interest in the designated acreage,
including tenants and sharecroppers, shall be eligible for an annual
payment in the manner agreed upon by them as representing their
respective contributions to compliance with the agreement. The State
Conservationist shall not approve an agreement if it is determined that
the proposed division of payment is not fair and equitable.
(b) The annual per acre payment rates for wetlands and for adjacent
land shall be determined for each county by the State Conservationist,
based on recommendations of the State Technical Committee.
(c) Maximum payments. In order to ensure that limited program funds
are expended to maximize program benefits, the State Conservationist, in
consultation with the State Technical
[[Page 536]]
Committee, may establish uniform maximum annual payment limits for
agreements within a State or for geographic areas within a State.
(d) Preliminary estimates of annual payments. Upon request prior to
filing an application for enrollment, a person may be apprised of the
maximum annual payment rates.
(e) Adjustment of annual rates.
(1) The State Conservationist, in consultation with the State
Technical Committee, shall reexamine the payment rates with respect to
each agreement at the beginning of the fifth year of any ten-year
initial or renewal period and before the renewal expires.
(2) An adjustment in the payment rates shall be made for any initial
or renewal period taking into consideration the current land rental
rates and crop values in the area. No adjustment shall be made in a
payment rate which will result in a reduction of an annual payment rate
from the rate which is specified in the initial or renewal agreement.
(3) The rate or rates of annual payments may be increased if the
program participant permits access by the general public to the
designated acreage for hunting, trapping, fishing, and hiking, subject
to applicable State and Federal regulations.
Sec. 633.8 Cost-share payments.
(a) In addition to annual payments, the NRCS may share the cost with
program participants of protecting the wetland functions and values of
the enrolled land as provided in the conservation plan. The NRCS may pay
up to 75 percent of such costs.
(b) Cost-share payments may be made only upon a determination by the
NRCS that an eligible practice or an identifiable unit of the practice
has been established in compliance with appropriate standards and
specifications. Identified practices may be implemented by the program
participant or other designee.
(c) A program participant may seek additional cost-share assistance
from other public or private organizations as long as the activities
funded are in compliance with this part. In no event shall the program
participant receive an amount which exceeds 100 percent of the total
actual cost of the practices.
Sec. 633.9 Conservation plan.
(a) The program participant, with assistance from NRCS and in
consultation with the Conservation District, shall prepare a
conservation plan for the acreage designated under an agreement.
(b) The conservation plan is the basis for the agreement and is
incorporated therein. It includes a schedule of conservation treatment
and management required to protect and to maintain the wetland and
adjacent land as a functional wetland unit for the life of the
agreement.
(c) Conservation treatment and management of the vegetation for
wetland protection, wildlife habitat, or other authorized objectives are
consistent with the program objectives and priorities.
Sec. 633.10 Modifications.
The NRCS may approve modifications to the agreement or associated
conservation plan after consultation with the Conservation District. Any
modification must meet WBP program objectives, and must be in compliance
with this part.
Sec. 633.11 Transfer of interest in an agreement.
(a) If the ownership or operation of a farm changes in such a manner
that the agreement no longer contains the signatures of the persons
required by Sec. 633.6(a) to sign the agreement, the agreement shall be
modified to reflect the new interested persons and new divisions of
payments.
(b) If such persons are not willing to become parties to the
modified agreement or for any other reason a modified agreement is not
executed, the agreement shall be terminated and all unearned payments
shall be forfeited or refunded.
(c) The annual payment for the year in which the change of ownership
or operation occurs shall not be considered to have been earned unless
the designated acreage is continued in the program and there is
compliance with the agreement for the full agreement year.
[[Page 537]]
(d) The signatories to the agreement prior to the change of
ownership or operation shall be jointly and severally responsible for
refunding the unearned payments previously made.
Sec. 633.12 Termination of agreements.
(a) The State Conservationist may, by mutual agreement with the
parties to the agreement, consent to the termination of the agreement
where:
(1) The parties to the agreement are unable to comply with the terms
of the agreement as the result of conditions beyond their control;
(2) Compliance with the terms of the agreement would work a severe
hardship on the parties to the agreement; or
(3) Termination of the agreement would be in the public interest.
(b) If an agreement is terminated in accordance with the provisions
of this section, the annual payment for the year in which the agreement
is terminated shall not be considered to have been earned unless there
is compliance with the terms and conditions of the agreement for the
entire calendar year.
Sec. 633.13 Violations and remedies.
(a) In the event of a violation of an agreement or any associated
conservation plan, the parties to the agreement shall be given
reasonable notice and an opportunity to voluntarily correct the
violation within 30 days of the date of the notice, or such additional
time as the State Conservationist may allow.
(b) In addition to any and all legal and equitable remedies as may
be available to the NRCS under applicable law, the NRCS may withhold any
annual or cost-share payments owing to the parties of the agreement at
any time there is a material breach of the agreement or any conservation
plan. Such withheld funds may be used to offset costs incurred by the
NRCS in any remedial actions or retained as damages pursuant to court
order or settlement agreement.
(c) The NRCS shall be entitled to recover any and all administrative
and legal costs, including attorney's fees or expenses, associated with
any enforcement or remedial action.
Sec. 633.14 Debt collection.
Any debts arising under this program are governed with respect to
their collection by the Federal Claims Collection Act of 1966 (31 U.S.C.
3701) and the regulations found in 4 CFR chapter II.
Sec. 633.15 Payments not subject to claims.
(a) Any payments due any person shall be determined and allowed
without regard to State land and without regard to any claim or lien
against any crop, or proceeds thereof, which may be asserted by any
creditor, except as provided in paragraph (b) of this section.
(b) The regulations governing setoffs and withholdings, in part 13
of this title, as amended, shall be applicable to this program.
Sec. 633.16 Assignments.
Any person entitled to any cash payment under this program may
assign the right to receive such cash payments, in whole or in part.
Sec. 633.17 Appeals.
(a) Any person may obtain reconsideration and review of
determinations affecting participation in this program in accordance
with part 614 of this chapter.
(b) Before a person may seek judicial review of any action taken
under this part, the person must exhaust all administrative appeal
procedures set forth in paragraph (a) of this section, and for purposes
of judicial review, no decision shall be a final agency action except a
decision of the Chief of NRCS under these procedures.
Sec. 633.18 Scheme and device.
(a) If it is determined by the NRCS that a person has employed a
scheme or device to defeat the purposes of this part, any part of any
program payment otherwise due or paid such person during the applicable
period may be withheld or be required to be refunded with interest
thereon, as determined appropriate by the NRCS.
(b) A scheme or device includes, but is not limited to, coercion,
fraud, misrepresentation, depriving any other person of an annual
payment or payments for cost-share practices for the
[[Page 538]]
purpose of obtaining a payment to which a person would otherwise not be
entitled.
(c) A program participant who succeeds to the responsibilities under
this part shall report in writing to the NRCS any interest of any kind
in enrolled land that is held by a predecessor or any lender. A failure
of full disclosure will be considered a scheme or device under this
section.
PART 634_RURAL CLEAN WATER PROGRAM
Subpart A_General
Sec.
634.1 Purpose and scope.
634.2 Objective.
634.3 Administration.
634.4 Responsibilities.
634.5 Definitions.
Subpart B_Project Authorization and Funding
634.10 Applicability.
634.11 Availability of funds.
634.12 Eligible project areas.
634.13 Project applications.
634.14 Review and approval of project applications.
634.15 Agreements.
634.16 Suspension of grants.
634.17 Termination of grant agreement.
634.18 Termination of project.
634.19 Project completion and closeout.
Subpart C_Participant RCWP Contracts
634.20 Eligible land.
634.21 Eligible participants.
634.22 Application for assistance.
634.23 Water quality plan.
634.24 Cost sharing.
634.25 Contracting.
634.26 Contract modifications.
634.27 Cost-share payment.
634.28 Appeals not related to contract violations.
634.29 Violations.
634.30 Appeals in USDA administered projects.
634.31 Appeals of contract violations.
Subpart D_Financial Management
634.40 Financial management.
Subpart E_Monitoring and Evaluation
634.50 Program and project monitoring and evaluation.
Authority: Sec. 35, Pub. L. 95-217, 91 Stat. 1579 (33 U.S.C. 1288).
Source: 43 FR 50855, Nov. 1, 1978, unless otherwise noted.
Subpart A_General
Sec. 634.1 Purpose and scope.
(a) The purpose of this part is for the U.S. Department of
Agriculture (USDA), with the concurrence of the U.S. Environmental
Protection Agency (EPA), to set forth regulations to carry out a Rural
Clean Water Program (RCWP) under section 35, Pub. L. 95-217; 91 Stat.
1579; 33 U.S.C. 1288.
(b) The Rural Clean Water Program provides financial and technical
assistance to private landowners and operators (participants) having
control of rural land. The assistance is provided through long-term
contracts (5 to 10 years) to install best management practices (BMP's)
in project areas which have critical water quality problems resulting
from agricultural activities. The proposed project area must be within a
high priority area in an approved agricultural portion of a 208 water
quality management plan. Participation in RCWP is voluntary.
(c) The program is a new USDA program and an extension of existing
water-quality management programs of EPA.
Sec. 634.2 Objective.
The RCWP is designed to reduce agricultural nonpoint source
pollutants to improve water quality in rural areas to meet water quality
standards or water quality goals. The objective is to be achieved in the
most cost-effective manner possible in keeping with the provision of
adequate supplies of food and fiber and a quality environment.
Sec. 634.3 Administration.
At the national level, the Secretary of Agriculture, with the
concurrence of the Administrator, EPA, administers RCWP. The Secretary
of Agiculture has delegated responsibility for administration of the
program (43 FR 8252) to the Administrator, Natural Resources
Conservation Service (NRCS). NRCS will be assisted by other USDA
agencies in accordance with existing authorities.
[[Page 539]]
(a) A National Rural Clean Water Coordinating Committee (NRCWCC),
chaired by the Administrator, NRCS, is to assist in carrying out the
Rural Clean Water Program.
(b) At the State level, a State Rural Clean Water Coordinating
Committee (SRCWCC) is to assist the State Conservationist, NRCS, in
administering the program. The State Conservationist will chair the
SRCWCC.
(c) To assure coordination at the project level, a local Rural Clean
Water Coordinating Committee is to be established at the time the
application is developed. An existing local committee may be used, where
practicable, to perform the functions of this committee.
(d) The Administrator, NRCS, through the State Conservationists,
NRCS, is to enter into agreements, where practicable, with soil
conservation districts, State soil and water conservation agencies, or
State water quality agencies to administer all or part of the program
for a project area. That portion of program administration to be
conducted by these agencies will be defined in the project application
and grant agreement. Where this is not practicable, USDA will administer
the program in a project area. In those instances where USDA retains
administration of the program in a project area, NRCS will enter into
agreements for the transfer of funds to the Agricultural Stabilization
and Conservation Service (ASCS) for the administration of part of the
program.
Sec. 634.4 Responsibilities.
(a) Environmental Protection Agency (EPA) will--
(1) Approve 208 water quality management plans,
(2) Participate in the National and State Rural Clean Water
Coordinating Committees,
(3) Review and concur in project applications approved for funding
in accordance with Sec. 634.14,
(4) Advise the Secretary of Agriculture of practices which tend to
defeat the purposes of contracts with rural landowners or operators in
accordance with section 208(j)(1)(iv) of the act,
(5) Assist USDA in evaluating the effectiveness of the program in
improving water quality, and
(6) Concur in the selection of project areas and the criteria for
comprehensive, joint USDA-EPA water quality monitoring, evaluation, and
analysis in accordance with Sec. 634.50.
(b) U.S. Department of Agriculture (USDA) will--
(1) With the concurrence of EPA, administer a program to enter into
contracts to install and maintain best management practices to control
agricultural nonpoint source pollution for improved water quality,
(2) Act through NRCS and such other USDA agencies as the Secretary
may designate,
(3) Provide technical assistance and share the cost of carrying out
best management practices that are set forth in the contracts,
(4) Where practicable, enter into agreements with soil conservation
districts, State soil and water conservation agencies, or State water
quality agencies to administer all or part of the program for a project
area,
(5) Administer the program where it is not practicable for soil
conservation districts, State soil and water conservation agencies, or
State water quality agencies to administer all or part of the program
for a project area,
(6) Together with local soil conservation districts, determine the
priorities for assistance to individual participants to assure that the
most critical water quality problems are addressed,
(7) Assist in evaluating the overall effectiveness of the program in
improving water quality, and
(8) Within the framework of the 208 planning process, make
additional investigations or plans, where necessary, to supplement
information contained in the approved agricultural portion of 208 water
quality management plans for the purpose of selecting among projects to
be funded.
(c) Natural Resources Conservation Service (NRCS) will--
(1) Provide RCWP leadership,
(2) Retain major technical responsibility for RCWP, and provide
leadership to assure the adequacy of standards and specifications for
use by all administering agencies,
[[Page 540]]
(3) Manage budgeting, accounting, and reporting,
(4) Chair NRCWCC and assure that RCWP applications are distributed
to the NRCWCC, including EPA, for review,
(5) For the Secretary of Agriculture, with the concurrence of the
Administrator, EPA, approve RCWP projects for funding,
(6) For the Secretary of Agriculture, select and enter into
agreements with either soil conservation districts, State soil and water
conservation agencies, or State water quality agencies, where
practicable, to adminster all or part of the program,
(7) Enter into fund transfer agreements to transfer funds to ASCS in
those instances where the administration of contracts is retained by
USDA,
(8) Enter into agreements with other USDA agencies, as appropriate,
for support which they are to provide,
(9) Chair SRCWCC,
(10) For the Secretary of Agriculture, in coordination with NRCWCC,
determine the maximum Federal contribution to the total cost of the
project,
(11) Provide technical assistance through soil conservation
districts or arrange for other Federal, State, local agencies, or
private individuals or firms to provide technical assistance as
appropriate,
(12) Provide technical assistance to soil conservation districts and
County Agricultural Stabilization and Conservation (ASC) Committees to
assist them in determining priorities of assistance among individual
participants,
(13) Develop appropriate technical and administrative training
programs,
(14) Provide leadership for USDA for comprehensive joint USDA-EPA
water quality monitoring, evaluation, and analysis in selected project
areas,
(15) Provide leadership for USDA in evaluating the effectiveness of
the program in improving water quality,
(16) Carry out the function of soil conservation districts for
approving water quality plans where no soil conservation district
exists, and
(17) Through the State Conservationist, after considering
recommendations of the SRCWCC, reach agreement with the Governor on the
recommended administering agency to be included in the project
application.
(d) The Agricultural Stabilization and Conservation Service (ASCS)
will--
(1) Participate on the National, State, and local coordinating
committees.
(2) Provide guidance to State and County ASC Committees and
coordinate the Agricultural Conservation Program (ACP) and the Forestry
Incentives Program (FIP) with RCWP,
(3) Where the administration of contracts is retained by USDA, enter
into agreements with NRCS for the transfer of funds to be allocated to
County ASC Committees,
(4) Consolidate reports of the annual cost-share disbursements made
by the State ASC Committee, and report these disbursements to NRCS,
(5) Furnish data on land use, crop history, and cost-shared
conservation measures,
(6) Review plans and contracts to assure coordination with other
farm programs, and
(e) The Forest Service (FS) will--
(1) Retain technical responsibility for forestry,
(2) Provide technical assistance through the State forestry agency
(State Forester as appropriate) for planning, applying, and maintaining
forestry best management practices, and
(3) Participate on the National, and as appropriate, State, and
local coordinating committees.
(f) The Science and Education Administration (SEA) will--
(1) Develop, implement, and coordinate educational programs for
agricultural nonpoint source water pollution control,
(2) Participate on the National, and as appropriate, State, and
local coordinating committees, and
(3) Provide technical assistance for appropriate BMP's.
(g) The Economics, Statistics, and Cooperatives Service (ESCS) will:
(1) Participate on the National coordinating committee and, as
appropriate, particpate in State, and local coordinating committee
activities,
(2) Assist in the economic evaluation of best management practices
and RCWP projects,
[[Page 541]]
(3) Make data available from existing and planned ESCS surveys
relating to water quality and related matters,
(4) Assist in RCWP evaluation by making available the ESCS land and
water resource economic modeling systems, and
(5) Conduct socioeconomic research, within ESCS authorities and
funds, on relevant policy and program issues pertinent to RCWP.
(h) The Farmers Home Administration (FmHA) will--
(1) Participate on the National, and as appropriate, State and local
coordinating committees, and
(2) Provide assistance and coordinate their farm loan and grant
programs with RCWP.
(i) The NRCWCC is chaired by the Administrator, NRCS. Other members
of the National Committee are the Administrators of ASCS, FmHA, and
ESCS; the Chief of FS; the Director of SEA; and the Assistant
Administrator for Water and Waste Management, EPA. Non-Federal agencies
such as conservation districts, State soil and water conservation
agencies, State water quality agencies, and other organizations are
invited to attend as observers. The duties of the Committee are to:
(1) Coordinate individual agency programs with the Rural Clean Water
Program,
(2) Recommend to the Administrator, NRCS, the project applications
to be funded,
(3) Advise the Administrator, NRCS, on the maximum Federal
contribution to the total cost of the project,
(4) Assist the Administrator, NRCS, in mediating agency differences
at the State level,
(5) Periodically advise the Secretary and Assistant Secretary for
Conservation, Research and Education of program and policy issues, and
(6) Recommend project areas and criteria for comprehensive, joint
USDA/EPA water quality monitoring, evaluation, and analyses.
(j) The SRCWCC is chaired by the State Conservationist, NRCS. Other
members of the State committee are the State 208 water quality agency, a
designated representative of the areawide agencies, the State soil and
water conservation agency, a designated representative of soil and water
conservation districts, other State and local agencies or individuals as
the Governor deems appropriate, and representatives of the agency
members of the NRCWCC. The duties of the committee are to insure that a
process exists:
(1) To consult with the Governor or his designee on the Governor's
determination of priority project areas,
(2) To assure coordination of activities at the project level by
assisting in determining the composition and responsibilities of the
local rural clean water coordinating committee,
(3) To prepare the RCWP applications for the Governor to submit to
the State Conservationist, NRCS, based on priorities established by the
Governor,
(4) To incorporate adequate public participation, including public
meeting(s), and appropriate environmental assessment in the preparation
of RCWP applications,
(5) To monitor and evaluate the RCWP in the State and to assist USDA
and EPA in their comprehensive, joint water quality monitoring and
evaluation of selected project areas in accordance with Sec. 634.50,
(6) To develop procedures for coordination between conservation
districts and county ASC committees and between RCWP and other water
quality programs at the local level,
(7) To assist the State Conservationist, NRCS, in mediating agency
differences at the local level,
(8) To initiate a written agreement setting forth any or all of the
above activities when the Governor and the Secretary of Agriculture or
his designee deem it appropriate, and
(9) To make recommendations to the State Conservationist, NRCS,
concerning the selection of the administering agency to be included in
the project application.
(k) The State soil and water conservation agency will, as
appropriate:
(1) Assist in preparing and submitting applications for RCWP,
(2) Administer all or part of the RCWP for a project area,
(3) Carry out the responsibilities of soil conservation districts
for determining priority for assistance among
[[Page 542]]
individual participants where no soil conservation district exists, and
(4) Participate on the State and local coordinating committees.
(l) The State 208 water quality agency will, as appropriate:
(1) Assist in preparing and submitting applications for rural clean
water projects,
(2) Administer all or part of the RCWP for a project area,
(3) Participate on the State and local coordinating committees, and
(4) Assist in monitoring and evaluating the water quality
effectiveness of projects.
(m) The soil conservation district will:
(1) As appropriate, assist in the preparation and submission of
applications for rural clean water projects,
(2) As appropriate, administer all or part of the RCWP in a project
area.
(3) As appropriate, participate on the local coordinating
committees,
(4) Approve participants' water quality plans, and
(5) Together with the county ASC Committee, determine the priority
for assistance among individual participants to assure that the most
critical water quality problems are addressed.
(n) The county ASC committee will:
(1) Together with the soil conservation district, determine the
priorty for assistance among individual participants to assure that the
most critical water quality problems are addressed,
(2) Receive applications for assistance for individual participants
where USDA retains administration of the program,
(3) Make cost-share payments to individual participants where USDA
retains administration of the program, and
(4) As appropriate, participate on the local coordinating
committees.
(o) The designated management agency(s) for the agricultural portion
of a 208 plan for the project area will:
(1) Assist in preparing and submitting an application for a rural
clean water project in an area for which they were designated,
(2) Submit a letter, as part of the project application, certifying
that the BMP's proposed for cost sharing are consistent with the BMP's
in the approved 208 plan,
(3) Submit a letter, including a schedule, giving assurance that an
adequate level of participation in the project will be achieved within 5
years, and
(4) As appropriate, serve as the administering agency.
(p) The administering agency will:
(1) As appropriate, enter into a grant agreement or fund transfer
agreement with the Natural Resources Conservation Service for:
(i) Receiving funds from the Natural Resources Conservation Service
for administrative costs, cost sharing, and technical assistance, as
appropriate, associated with carrying out the project,
(ii) Establishing detailed work schedules in accordance with the
approved project application,
(iii) Establishing the maximum amount of administrative costs
chargeable to the grant,
(iv) Establishing an adequate financial management system,
(v) Preparing a cost allocation plan,
(vi) Monitoring and reporting performance,
(vii) Reviewing applications for assistance from landowners or
operators,
(viii) Certifying availability of funds, and
(ix) Complying with OMB Circular A-102 and other appropriate
regulations,
(2) Enter into contracts with participants for the installation and
maintenance of BMP's based on water quality plans developed by
participants,
(3) Make cost-share payments to participants upon receipt of
certification by NRCS,
(4) Issue modifications to participant RCWP contracts,
(5) Develop average cost rates for each practice applicable in the
project area.
(6) Sample and inspect materials used in the installation of BMP's,
(7) Establish a contract violations and appeals and collections
process,
(8) Provide for public involvement in the implementation of RCWP in
a project area, and maintain a mailing list of interested individuals
and organizations for informing the public
[[Page 543]]
about the activities contemplated and carried out in the project area,
and
(9) Maintain records, provide necessary facilities, personnel, and
legal counsel for carrying out these responsibilities.
(q) The Governor of each State will:
(1) In order to qualify for assistance under RCWP:
(i) Establish priorities for RCWP project areas in the State,
(ii) Coordinate the development of RCWP project applications with
the SRCWCC and local agencies,
(iii) Submit, in order of priority, RCWP project applications to the
Administrator, NRCS, through the State Conservationist, NRCS, and
(iv) Recommend an eligible State or local agency to serve as the
administering agency of the project, or request USDA to be the
administering agency.
(2) Where appropriate, with the State Conservationist, NRCS, set
forth the activities of the SRCWCC in a written agreement,
(3) Assign additional State and local agencies or individuals to
membership on the SRCWCC, as appropriate, and
(4) Reach agreement with the State Conservationist, NRCS, in
selecting the administering agency.
Sec. 634.5 Definitions.
(a) Adequate level of participation. An adequate level of
participation is reached when participants, having control of 75 percent
of the identified critical area or source of the pollution problem in
the project area, are under contract. Exceptions may be made where the
approved agricultural portion of the 208 plan provides data and analyses
which indicate that a greater or lesser percentage of the critical area
or source treated is needed to attain water quality standards or water
quality goals. Fifty (50) percent of the adequate level of participation
is to be achieved within 3 years; the remainder within 5 years.
(b) Administering agency. A soil conservation district, State soil
and water conservation agency, or State water quality agency that enters
into an agreement with the State Conservationist, NRCS, to administer
assigned responsibilities for RCWP projects; or ASCS, when USDA retains
contract administration.
(c) Administrative cost. Grant and fund transfer costs, including
allowable costs incurred by the Administering agency in contract
administration. These costs, indirect and direct, include charges for
personnel, travel, materials, and supplies. The costs are limited to a
maximum of 5 percent of the Federal share for BMP cost.
(d) Agreement. A legal instrument reflecting the relationship
between NRCS and the administering agency for performance of RCWP
activities.
(e) Agricultural nonpoint source pollution. Pollution originating
from existing nonpoint sources that are (a) agriculturally related,
including runoff from animal waste disposal areas and from land used for
livestock and crop production, or (b) silviculturally related pollution.
(f) Agricultural portion of a 208 plan. That portion of the 208 plan
that deals with agriculture and those silvicultural activities related
to farming and ranching enterprises.
(g) Appeals board. A group of three or more individuals, including a
hearing officer, established by the administering agency with the
concurrence of the State conservationist, NRCS, to review asserted
contract violations, hear associated appeals, and report its findings,
conclusions, decisions, and recommendations in State or locally
administered projects.
(h) Average cost. The calculated cost, determined by recent actual
local costs and current cost estimates, considered necessary for
carrying out BMP's or an identifiable unit thereof.
(i) Best Management Practice (BMP). A single practice or a system of
practices included in the approved RCWP application that reduces or
prevents agricultural nonpoint source pollution to improve water
quality.
(j) BMP cost. The amount of money actually paid or obligated to be
paid by the participant for equipment use, materials, and services for
carrying out BMP's or an identifiable unit of a BMP. If the participant
uses his or her own resources, the cost includes the computed value of
his or her own labor, equipment use, and materials.
[[Page 544]]
(k) Contract. The legal document, that includes the water-quality
plan and is executed by the participant and the administering agency. It
details the agreement between parties for carrying out BMP's on the
participant's land.
(l) Cost-share level. The percentage of the total cost of installing
BMP's included in the participant's contract that is paid by the
administering agency.
(m) Critical areas or sources. Those finite areas or sources of
agricultural nonpoint source pollutants identified as having the most
significant impact on the quality of the receiving waters.
(n) Federal Management Circular FMC 74-4. ``Cost Principles
Applicable to Grants and Contracts with State and Local Governments.''
(o) Financal burden. The participant's contribution to the total
cost of BMP's that would be inequitable or probably prevent
participation in RCWP.
(p) Identifiable unit. A component of a BMP that can be clearly
identified in carrying out BMP's in the water quality plan.
(q) Letter of Credit--Treasury Regional Disbursing Officer System.
The system whereby the letters of credit are maintained and serviced by
Treasury disbursing centers and Treasury regional disbursing officers.
(r) Management agency. The Federal, State, interstate, regional, or
local agency designated by the Governor to carry out the approved
agricultural portion of the 208 water-quality management plan.
(s) OMB Circular A-34. ``Instructions on Budget Execution.''
(t) OMB Circular A-102 (Rev.) Office of Management and Budget
Uniform Administrative Requirements for Grants-in-Aid to State and local
governments.
(u) Offsite benefits. Those favorable effects of BMP's that occur
away from the land of the participant receiving RCWP assistance and
accrue to the public as a result of improved water quality.
(v) Participant. A landowner or operator who applies for and
receives assistance under RCWP.
(w) Participants water quality plan. The plan which identifies
critical agricultural nonpoint source(s) of water quality problems and
sets forth BMP's which contribute to meeting the water quality
objectives of the project.
(x) Privately owned rural land. Those lands not held by Federal,
State, or local governments which include cropland, pastureland, forest
land, rangeland, and other associated lands.
(y) RCWP projects. The total system of BMP's, institutional
arrangements, and technical, cost-sharing, and administrative assistance
activities that are authorized in a RCWP project area.
(z) Standards and specifications. Requirements that establish the
minimum acceptable quality level for planning, designing, installing,
and maintaining BMP's.
(aa) State. Any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern
Marianas, and the Trust Territory of the Pacific Islands.
(bb) Technical assistance cost. Those direct and indirect costs
associated with the preparation and review of participant water quality
plans; design, layout and application of BMP's; and investigations
associated with monitoring and evaluating progress toward meeting
project objectives.
(cc) Treasury Circular 1075 (Rev.). Uniform Administrative
Requirements for Grants-in-Aid to State and local governments.
Subpart B_Project Authorization and Funding
Sec. 634.10 Applicability.
RCWP is applicable in project areas that meet the criteria for
eligibility contained in Sec. 634.12 and are authorized for funding by
the Administrator, NRCS.
Sec. 634.11 Availability of funds.
(a) The provisions of the program are subject to the appropriation
of funds by Congress to the U.S. Department of Agriculture.
(b) The allocation of funds to the administering agencies is to be
made on the basis of the total funds needed to carry out the project.
(c) The obligation of Federal funds for RCWP contracts with
participants
[[Page 545]]
is to be made on the basis of the total contract costs.
Sec. 634.12 Eligible project areas.
(a) Only those project areas which are included in an approved
agricultural portion of a 208 water quality management plan, or revised
portions thereof, and have identified agricultural nonpoint source water
quality problems are eligible for authorization under RCWP. Those
critical areas or sources of pollutants significantly contributing to
the water quality problems are eligible for financial and technical
assistance.
(b) The management agency designated by the Governor under section
208(c)(1) of the Act to implement the agricultural portion of the 208
plan must assure in writing in the project application that there will
be an adequate level of participation by land owners or operators with
critical areas or sources in a project area.
(c) An RCWP project area is a hydrologically related land area.
Exceptions may be made for ease of administration, or to focus on
concentrated critical areas. To be designated as an RCWP project area
eligible for authorization, the area's water quality problems must be
related to agricultural nonpoint source pollutants, including sediment
animal waste, irrigation return flows, runoff, or leachate that contain
high concentrations of nitrogen, phosphorus, dissolved solids, toxics
(pesticides and heavy metals), or high pathogen levels. Generally, the
project areas will be less than 200,000 acres.
Sec. 634.13 Project applications.
(a) The SRCWCC is to assure that a process exists to prepare the
RCWP project applications for submission by the Governor in order of
priority to the Administrator, NRCS, through the State Conservationst,
NRCS. This process must include the opportunity for public
participation, especially participation by potential RCWP participants.
Applications will be submitted in conformance with OMB Circular A-95.
(b) The preparation and submission of applications are to be based
on the priorities established by the Governor and data and information
in the approved agricultural portion of the State or areawide 208 water
quality management plan.
(c) Applications shall contain the following components. Additional
material may be added when, in the judgment of the applicant, it is
needed to fully support the application and/or would enhance the
probability of project authorization. Information provided under each
component shall be in sufficient detail to permit the NRCWCC to evaluate
the application using priority criteria in Sec. 634.14.
(1) Description of the project area,
(2) Severity of the water quality problem
(3) Objectives and planned action,
(4) Schedule for carrying out the plan, and
(5) Estimated cost. This component is to identify and show the basis
for those costs associated with completing the project. The project
application shall include an estimate of the total cost of the project,
the Federal contribution, and the non-Federal contribution. The Federal
contribution shall not exceed 50 percent unless the application, based
on offsite benefits and financial burden, show that a higher level is
appropriate.
(6) Estimated water quality benefits and effects.
(7) Arrangements for project administration. This component is to
set out the applicant's plan for carrying out the program in the project
area. The plan should:
(i) Identify the administering agency and document the capability of
the agency to carry out the responsibilities described in Sec. 634.4(p).
In addition, information should be included to describe the
administering agency staff, the location of that staff relative to the
project area, and the experience of the agency in administering
comparable grant programs.
(ii) Where appropriate, describe the specific arrangements that have
been made, or that are anticipated, for local, State, and Federal agency
participation such as technical assistance and other cost-sharing
programs.
(8) Attachments. The following attachments are the minimum required
with each application:
[[Page 546]]
(i) A letter from the water-quality management agency designated by
the Governor to carry out the approved agricultural portion of the 208
water quality management plan for the area or source certifying that the
BMPs to be cost shared are consistent with the BMP's in the 208 plan,
(ii) A letter from the designated management agency which assures
and sets out a strategy for reaching an adequate level of participation
(Sec. 634.5(a)).
(iii) As appropriate, the preapplication for Federal assistance (OMB
Circular A-102) from the identified administering agency, and
(iv) A listing of the prevailing cost-share levels of other programs
in the project area.
Sec. 634.14 Review and approval of project applications.
(a) In reviewing applications and recommending priorities, the
NRCWCC will consider the following:
(1) Severity of the water quality problem caused by agricultural and
silvicultural related pollutants, including:
(i) State designated uses of the water affected,
(ii) Kinds, sources, and effects of pollutants, and
(iii) Miles of stream or acres of water bodies affected,
(2) Demonstration of public benefits from the project, including:
(i) Effects on human health,
(ii) Population benefited by improved water quality,
(iii) Effects on the natural environment, and
(iv) Additional beneficial uses of the waters that result from
improvement of the water quality,
(3) Economic, and technical feasibility to control water quality
problems within the life of the project, including:
(i) Cost effectiveness of BMP's,
(ii) Size of the area and BMP's needed, and
(iii) Cost per participant and cost per acre for solution of
problem,
(4) State and local input in the project area, including:
(i) Funds for cost-sharing, technical, and administrative costs.
States or local governments with their own cost-share programs may
receive greater consideration for the funding of RCWP projects,
(ii) Commitment of local leadership to promote the program, and
(5) The project area's contribution to meeting the national water
quality goals.
(b) Based on the project applications, the NRCWCC is to recommend an
upper limit of the Federal contribution to the total cost of the
project.
(c) All project applications will be reviewed by EPA. Project
applications approval for funding require written EPA concurrence,
except that the Administrator, NRCS, may assume EPA's concurrence if EPA
does not act within 45 days following receipt of the project
application. EPA review of project applications will occur concurrently
with review by the NRCWCC.
(d) The Administrator, NRCS, will approve projects for funding. The
NRCWCC acting through the Chairman will announce the approval of the
project. The State Conservationist, NRCS, through the SRCWCC, will also
inform the other involved Federal, State, and local agencies of the
approval.
Sec. 634.15 Agreements.
The State Conservationist, NRCS, upon receiving notice of an
approved project, is to enter into a grant agreement with the
administering agency, except in those cases where USDA is to administer
the program. When USDA retains administration, the State
Conservationist, NRCS, is to enter into a fund transfer agreement with
the State Executive Director, ASCS.
(a) Grant agreements. Grant agreements detail the working
arrangements and applicable operating regulations between NRCS and the
administering agency. A written grant agreement identifying the parties
involved, their responsibilities for carrying out the program, and the
amount of program funds to be encumbered by NRCS is to be executed by
the parties. This agreement is the fund obligating document. It also
sets out the necessary working arrangements between parties for
determining and allocating the administering agency's costs. All grants
to administering agencies are to be in
[[Page 547]]
accordance with OMB Circular No. A-102, Department of the Treasury
Circular No. 1075, and Federal Management Circular No. 74-4. State or
local administering agency grants will be funded under Letter-of-Credit
serviced by the U.S. Treasury Regional Disbursing Office, or by NRCS
approved advance/reimbursement financing arrangements subject to the
terms and conditions of the grant agreement.
(1) The grant agreement will provide for payment of cost-sharing for
BMP (Sec. 634.5(j)) and administrative costs (Sec. 634.5(c)).
(2) The grant agreement may provide for payment of technical
assistance costs when the administering agency has the capability, and
the NRCS designates that agency to provide this assistance to RCWP
participants.
(3) The administering agency is to monitor the performance of
activities supported by RCWP grant funds to assure that time schedules
and participant RCWP contract requirements are being met. Performance
goals are to be measured against the terms of the grant agreement and
program directives. When NRCS determines that onsite technical
inspections, certified completion data, and financial status reports do
not provide adequate grant evaluation data, the following information
may be requested:
(i) A comparison of actual accomplishments with the objectives
established for the plan,
(ii) Reasons why established objectives were not met, and
(iii) Objectives established for the next reporting period.
(4) Grant agreements may be amended by mutural agreement of the
parties to the agreement. NRCS may unilaterally amend agreements when
the sole consideration is a change in the cost and the Administrator,
NRCS, based on NRCWCC recommendations, determines that such an
adjustment is necessary to carry out the program efficiently and
effectively.
(b) Fund transfer agreements. When it is impractical for NRCS to
enter into agreements with local soil conservation districts, State soil
and water conservation agencies, or State water quality agencies to
administer the program in a project area, USDA will retain program
administration. In this case, the State Executive Director, ASCS, and
the State Conservationist, NRCS, are to enter into an agreement for the
transfer of funds to ASCS through county ASC committees for activities
included in administrative cost (Sec. 634.5(c)) and BMP cost
(Sec. 634.5(j)). The following general working arrangements are to
apply:
(1) Administering contracts, making cost-share payment, and program
reporting are to be provided by ASCS as the administering agency.
(2) NRCS, or its designee, with appropriate Federal or State agency
support, will provide technical assistance to participants in preparing
RCWP contracts and in carrying out their water-quality plans.
(c) Agreements for services. NRCS may enter into an agreement for
services with a State or local agency. The designee must meet the
requirements of OMB Circular No. A-102.
(d) Contracts for services. NRCS may enter into contracts for
services with individuals or firms for providing technical assistance.
Sec. 634.16 Suspension of grants.
(a) Suspension orders. Work on a project or on a portion or phase of
a project for which a grant has been awarded, may be suspended by order
of the State Conservationist, NRCS. Suspension does not affect RCWP
contracts existing at the time the suspension order is issued, or the
administering agency's responsibility to make payments under such
contracts unless specifically provided for in the suspend order. In no
event will the participant's right to cost-share payment be diminished
by action taken under this section.
(b) Use of suspension orders. Suspension may be required for good
cause, such as default by the administering agency, failure to comply
with the terms and conditions of the grant, realignment of programs, or
advancements in the state of the art.
(c) Contents of suspension orders. Prior to issuance, suspension
orders will be discussed with the administering agency and may be
appropriately modified, in the light of such discussions. Suspension
orders are to include:
[[Page 548]]
(1) A clear description of the work to be suspended,
(2) Instructions as to the issuance of further orders by the
administering agency for materials or services,
(3) Instructions as to the administering agency entering into new
RCWP contracts in the project area,
(4) Instructions as to the administering agency servicing existing
RCWP contracts in the project area, and
(5) Other instructions to the administering agency for minimizing
Federal costs.
(d) Issuance of suspension order. Suspension orders are issued by
the State Conservationist, NRCS, by letter to the administering agency
(certified mail, return receipt requested). A suspension order may not
exceed forty-five (45) calendar days.
(e) Effect of suspension order. (1) Upon receipt of a suspension
order, the administering agency shall promptly comply with its terms and
take all reasonable steps to minimize costs allocable to the work
covered by the order during the period of work suspension. During the
suspension period, NRCS shall either:
(i) Cancel the suspension order, in full or in part, and authorize
resumption of work, or
(ii) Take action to terminate the work covered by such order as
provided by Sec. 634.17.
(2) If a suspension order is canceled, or the period of the order
expires, the administering agency shall promptly resume the suspended
work. An equitable adjustment shall be made in the grant period, the
project period, or grant amount, or all of these, and the grant
agreement may be amended:
(i) The suspension order results in an increase in the time, or cost
properly allocable to, the performance of any part of the project; and
(ii) The administering agency asserts a written claim for such
adjustment within thirty (30) days after the end of the period of work
suspension. If no written claim is made, NRCS may unilaterally make such
adjustments.
(iii) Reasonable costs resulting from the suspension order shall be
allowed in arriving at any terminations settlement.
(3) Costs incurred by the administering agency after a suspension
order is delivered that are not authorized by this section or
specifically authorized in writing by the State Conservationist, NRCS,
shall not be allowable costs.
Sec. 634.17 Termination of grant agreement.
(a) Termination agreement or notice. (1) The State Conservationist,
NRCS, may, based on evidence of failure to comply with the terms of the
grant agreement, issue a notice of intent to terminate the grant
agreement. The notice of intent to terminate has the force and effect of
extending or modifying the conditions of the suspend order. Any
modification of the conditions of the suspend order shall be shown in
the notice and discussed with the administering agency. The State
Conservationist shall give not less than ten (10) days written notice to
the administering agency (certified mail, return receipt requested) of
intent to terminate the grant in whole or in part.
(2) After the administering agency has been afforded an opportunity
for consultation, the State Conservationist, NRCS, may request
authorization from the Administrator, NRCS, to terminate the grant in
whole or in part. If the Administrator, NRCS, concurs in the termination
action, the proposed termination notice will be forwarded to the
Administrator, EPA, for concurrence.
(3) After the Administrators, NRCS and EPA, have been informed of
any expressed views of the administering agency and concurred in the
proposed termination, the State Conservationist, NRCS, may, in writing
(certified mail, return receipt requested), terminate the grant in whole
or in part.
(4) Termination of all or part of the grant agreement may be carried
out by either execution of a termination agreement by the State
Conservationist, NRCS, or issuance of a grant termination notice by the
State Conservationist, NRCS. The agreement or notice shall establish the
effective date of termination of the grant, the basis for settlement of
grant termination
[[Page 549]]
costs, and the amount and date of payment of any sums due either party.
(b) Basis for termination. A grant may be terminated by NRCS for
good cause subject to negotiation and payment of appropriate termination
settlement costs. Cause for termination by NRCS includes:
(1) Failure by the administering agency to make satisfactory
progress toward achieving an adequate level of participation; or other
evidence satisfactory to the NRCWCC, Administrator, EPA, and the
Administrator, NRCS, that the administering agency has failed or is
unable to perform in accordance with the provisions of the grant
agreement; or
(2) Failure through no fault of the administering agency to achieve
an adequate level of participation; or other evidence satisfactory to
the NRCWCC, Administrator, EPA, and the Administrator, NRCS, that the
planned actions approved in the project application cannot be achieved.
(c) Effect of grant termination. (1)(i) In those cases where cause
for grant termination is based on the administering agency's failure or
inability to perform (Sec. 634.17(b)(1)), upon termination, the
administering agency must refund or credit to the United States that
portion of the grant funds paid or owed to the administering agency and
allocable to the terminated project work. Funds needed to meet
unavoidable commitments may be retained. All other funds, including
unexpended cost-sharing monies for existing RCWP contracts executed
prior to the termination date, shall be refunded to the United States.
The administering agency shall not make any new commitments or enter
into any new RCWP contracts. The administering agency shall reduce the
amount of other outstanding commitments insofar as possible and report
to the State Conservationist, NRCS, the uncommitted balance of funds
awarded under the grant. The allowability of termination costs will be
determined in conformance with applicable Federal cost principles.
(ii) Upon termination of a grant agreement, existing RCWP contracts
and their related obligations will immediately, and in no case later
than 5 calendar days be transferred to the ASCS county office to assure
continuity in payments to participants. The State Conservationist, NRCS,
will immediately initiate action under Sec. 634.15 to establish a new
administering agency for completion of the project.
(2) In those cases where cause for grant termination is based on
failure to achieve the planned actions through no fault of the
administering agency, the termination agreement and amended grant
agreement are to permit the administering agency to fulfill the
obligations of its existing RCWP contracts. The administering agency
shall not make any new commitments or enter into any new RCWP contracts
without NRCS approval.
Sec. 634.18 Termination of project.
(a) An RCWP project is terminated by the State Conservationist
because an adequate level of participation cannot be achieved. Upon this
determination, the State Conservationist shall publish in a newspaper of
public record in the project area a notice of intent to terminate all or
part of the grant agreement and the project (Sec. 634.7(c)), and an
announcement of the time and place of a public hearing.
(b) No sooner than 15 days from the publication of the notice of
intent to terminate all or part of the project and grant agreement, the
State Conservationist will conduct a public hearing in the project area.
(c) If, based on the hearing record, the performance record of the
administering agency, and the recommendations of the SRCWCC, the State
Conservationist determines that the project will be terminated pursuant
to Sec. 634.17(c), the State Conservationist will enter into a grant
termination agreement or issue a grant termination notice.
(d) The existing RCWP contracts will be transferred to the ASCS
county office pursuant to Sec. 634.17(c)(1)(ii).
(e) The State Conservationist will prepare a project close-out
report summarizing the actions accomplished.
[[Page 550]]
Sec. 634.19 Project completion and closeout.
(a) The maximum total life of a project shall be fifteen (15) years
or less.
(b) The allowable contracting period may be increased if an adequate
level of participation has been achieved and the designated management
agency assures a significant increase in participation can be reached in
a reasonable time.
(c) The grant or fund transfer agreement with an administering
agency shall expire when the administering agency has fulfilled all of
its obligations in the long-term RCWP contracts.
(d) When a project is completed, the administering agency is to
provide the State Conservationist, NRCS, a closeout report which
summarizes the actions accomplished.
Subpart C_Participant RCWP Contracts
Sec. 634.20 Eligible land.
RCWP is only applicable to privately owned land. Land owned by
corporations whose ownership is public (i.e., their stock is publicly
traded over the market) is eligible for program assistance only if the
corporation can document that the installation of BMP's places an
inappropriate financial burden on the corporation.
Sec. 634.21 Eligible participants.
(a) Any landowner or operator whose land or activities in a project
area is contributing to the area's agricultural nonpoint source water
quality problems and who has an approved water quality plan is eligible
to enter into an RCWP contract.
(b) This program will be conducted in compliance with all
nondiscrimination requirements as contained in the Civil Rights Act of
1964 and amendments thereto and the Regulations of the Secretary of
Agriculture (7 CFR 15.1 through 15.12).
Sec. 634.22 Application for assistance.
(a) Landowners or operators must apply for RCWP assistance through
the office of the administering agency or its designee(s) by completing
the prescribed application form.
(b) The priority for assistance among landowners and operators in
developing water quality plans is to be determined jointly, through an
agreed-to process, by the county ASC committee and the soil conservation
district, with technical assistance from NRCS.
(c) Applications that are ineligible or technically infeasible are
to be returned to the applicant with a letter stating the reasons for
disapproval. Applications that are of a low priority will be retained
and the applicant will be sent a notice that the application is being
held for a period to be determined locally for future consideration.
Sec. 634.23 Water quality plan.
(a) The participant's water quality plan, developed with technical
assistance by the NRCS or its designee, is to include appropriate BMP's
identified in the approved agricultural portion of the 208 water quality
management plan. Such BMP's must reduce the amount of pollutants that
enter a stream or lake by:
(1) Methods, such as reducing the application rates or changing the
application methods of potential pollutants, and
(2) Methods, such as practices or combinations of practices which
prevent potential pollutants from leaving source areas or reduce the
amount of potential pollutants that reach a stream or lake after leaving
a source area.
(b) Participant's water quality plans shall as a minimum include
BMP's for all critical areas or sources. The plans will include BMP's
which are required but not cost-shared. Non-cost-shared BMP's, essential
for the performance and maintenance of cost-shared BMP's shall be
required as a condition of the RCWP contract.
(c) The participant is responsible for compliance with all other
applicable Federal, State, and local laws that deal with the
participant's nonpoint source water quality problems, such as the
treatment, storage, and disposal of hazardous waste. BMP's required for
compliance may be cost shared.
(d) It is recognized that the participants' water-quality plans upon
which
[[Page 551]]
the RCWP contracts are to be based may include conservation measures
other than those related to water quality improvement. These measures
are not eligible for cost sharing under this program. The installation
of such conservation measures will not be required as a condition of the
RCWP contract and will not be shown in the time schedules for
implementing BMP's.
(e) Time schedules for implementing BMP's are to be provided in the
participant's water quality plan. The time schedule is to establish the
length of the contract within the 5 to 10 year period established by
law.
(f) The Natural Resources Conservation Service will certify as to
the technical adequacy of the water-quality plan.
(g) The soil conservation districts are to review and approve all
water-quality plans and modifications.
Sec. 634.24 Cost sharing.
(a) The portion of BMP cost (including labor) to be cost shared
shall be that part which the Secretary determines is necessary and
appropriate. The value of land upon which BMP's are applied, or the
participant's water rights, cannot be considered a part of the
participant's share of the cost.
(b) The administering agency, in consultation with the county ASC
committee(s), soil conservation district(s), and designated management
agency will annually set maximum individual BMP cost-share levels for
the project area. However, the Federal share of the cost of the contract
cannot exceed 50 percent unless a variance has been granted.
(c) Recommended variances exceeding the 50 percent level must be in
the public interest and based on the following criteria:
(1) The main benefits to be derived from measures are related to
improving offsite water quality, and
(2) The matching share requirements would place a burden on the
landowner or operator which would probably prevent him or her from
participating in the program.
(d) BMP's to be cost shared must have a positive effect on water
quality by reducing the amount of agricultural nonpoint source
pollutants that enter a stream or lake.
(e) Cost sharing is not to be made available for:
(1) Measures installed primarily for bringing additional land into
crop production, including but not limited to land clearing and brush
removal;
(2) Measures installed primarily for increasing production on
existing cropland, including but not limited to bedding, field ditches,
open drains, and tile drains;
(3) Measures having flood protection as the primary purpose,
including but not limited to open channels, clearing and snagging, and
obstruction removal;
(4) Structural measures authorized for installation under Pub. L.
83-566.
(f) The Federal cost-share level is not to be reduced by the
contribution of a State or subdivision thereof. Total payments from
Federal, State, and local sources for a BMP may not exceed the total
cost of that BMP.
Sec. 634.25 Contracting.
(a) To participate in RCWP, a landowner or operator must enter into
a contract in which he or she agrees to apply his or her water-quality
plan. Any person who controls, or shares control, of the farm, ranch, or
other land for the proposed contract period (5 to 10 years) must sign
the contract.
(b) Cost-sharing payments cannot be provided for any measure that is
initiated before the contract is approved by the administering agency.
(c) The participant must furnish satisfactory evidence of his or her
control of the farm, ranch, or other land. The administering agency is
to determine the acceptability of the evidence and maintain current
ownership evidence in the contract file.
(d) RCWP contracts shall include the basic contract document,
special provisions as needed, the participant's water-quality plan,
schedule of operations, and any other data necessary.
(e) NRCS or its designee shall approve the technical adequacy of the
RCWP contract and obtain the required signature of the participants. The
NRCS or its designee will provide the contract to the administering
agency for certification of fund availability and for execution.
[[Page 552]]
(f) Participants shall install best management practices according
to the specifications that are applicable at the time measures are
installed.
(g) NRCS will provide technical assistance to participants for
installing BMPs. The State Conservationist, NRCS, or its designee may
enter into contracts with qualified soil conservation districts or
others to provide technical assistance.
(h) The RCWP contract is to require BMPs to be operated and
maintained by the participant at no cost to that administering agency.
(i) The contract period is to be not less than 5 and not more than
10 years. A contract is to extend for at least 1 year after the
application of the last cost-shared BMPs. All contract items are to be
accomplished prior to contract expiration.
(j) A land owner or operator may enter into a contract jointly
(pooling ageement) with other land owners or operators to solve mutual
water quality problems. Each participant must enter into an RCWP
contract to treat water quality problems not covered by the joint
arrangement.
(k) Participants may use all available sources of assistance to
accomplish their water-quality objectives. They are responsible for:
(1) Accomplishing the water-quality plan;
(2) Keeping the administering agency informed of their current
mailing address;
(3) Obtaining, having in hand, and maintaining any required permits
and landrights necessary to perform the planned work;
(4) Applying or arranging for the application of BMPs, as scheduled
in the plan, according to approved standards and specifications;
(5) The operation and maintenance of BMPs installed during the
contract period; and
(6) Obtaining the authorities, rights, easements, or other approvals
necessary to maintain BMPs in keeping with applicable laws and
regulations.
(l) Unless otherwise approved by the Administrator, NRCS, and
Administrator, EPA, the administering agency shall not enter into any
new RCWP contracts after five (5) years of elapsed time from the date
when RCWP funds are first made available to begin the project.
(m) Contracts may be terminated due to hardship by mutual agreement
if the administering agency and the State Conservationist, NRCS,
determine that such action would be in the public interest.
Sec. 634.26 Contract modifications.
(a) The administering agency may modify contracts previously entered
into if it is determined to be desirable to carry out the purposes of
the program, facilitate the practical administration thereof, or to
accomplish equitable treatment with respect to other conservation, land-
use, or water-quality programs.
(b) Requirements of active contracts may be waived or modified by
the administering agency only if such waiver or modification is
specifically provided for in these regulations. NRCS concurrence in
modifications is necessary when modifications involve a technical aspect
of the participant's water-quality plan. A contract may be modified only
if it is determined that such modifications are desirable to carry out
purposes of the program or to facilitate the program's practical
administration.
(c) Contracts may be modified to add, delete, substitute, or
reinstall best management practices when:
(1) The installed measure failed to achieve the desired results
through no fault of the participant,
(2) The installed measure deteriorated because of conditions beyond
the control of the participant, or
(3) Another BMP is substituted that will achieve the desired
results.
(d) Contract modifications are not required when items of work are
accomplished prior to scheduled completion or within 1 year following
the year of scheduled completion.
(e) If, during the contract period, all or part of the right and
interest in the land is transferred by sale or other transfer action,
the contract is terminated on the land unit that was transferred and the
participant having control over such land:
[[Page 553]]
(1) Forfeits all right to any future cost-share payments on the
transferred land unit, and
(2) Must refund with interest all cost-share payments that have been
made on the transferred land unit unless the new land owner or operator
becomes a party to the contract, except that where it is determined by
the administering agency, with the approval of the State
conservationist, NRCS, that the established BMPs will provide water
quality benefits for the design life of the BMP, the payment may be
retained.
(f) If the new land owner or operator becomes a party to the
contract:
(1) Payment which has been earned, but not made to the participant
who applied the BMPs and had control prior to the transfer, can be made,
(2) Such land owner or operator is to assume all obligations of the
previous participant on the transferred land unit,
(3) The contract with the new participant is to remain in effect
with the original terms and conditions, and
(4) The contract is to be modified in writing to show the changes
caused by the transfer. If the modification is not acceptable to the
administering agency, the provisions of paragraphs (e) (1) and (2) of
this section apply.
(g) The transfer of all or part of a land unit by a participant does
not affect the rights and obligations of other participants who have
signed the contract.
Sec. 634.27 Cost-share payment.
(a) General. Participants are to obtain or contract for materials or
services as needed to install BMPs. Federal Cost-share payments are to
be made by the administering agency upon certification by the District
Conservationist, NRCS, or its designee, that the BMPs, or an
identifiable unit thereof, have been properly carried out and meet the
appropriate standards and specifications.
(b) Payment maximum. The maximum total Federal cost-share payment to
a participant shall be limited to $50,000. Exceptions to this limit may
be made by the administering agency with concurrence of the
Administrator, NRCS, upon recommedation of the NRCWCC, where it
determines that the main benefits to be derived are essential for
meeting the water quality objectives in the project area.
(c) Basis for cost-share payment. (1) Cost-share payments are to be
made by the administering agency at the cost-share percentage and by one
of the following methods designated by the administering agency and set
out in the contract:
(i) Average cost, or
(ii) Actual cost not to exceed average cost.
(2) If the average cost at the time of starting the installation of
a BMP or identifiable unit is less than the costs specified in the
contract, payment is to be at the lower rate. If the costs at the start
of installation are higher, payment may be made at the higher rate. A
modification will be necessary if the higher cost results in a
significant increase in the total cost-share obligation. Cost-share
payment is not to be made until the modification reflecting the increase
is approved.
(d) Average cost development. Average costs are to be developed by
the administering agency for each project using cost data from the local
area. These costs should be reviewed by the SRCWCC for consistency with
average costs in other USDA programs. The average cost list is to be
updated annually by the administering agency.
(e) Application for payment. Cost-share payments can be made by the
administering agency after a participant has carried out a BMP or an
identifiable unit of a BMP. Application for payment must be submitted to
the administering agency, be certified by the NRCS or its designee, and
be supported by such cost receipts as are required by the administering
agency. It is the participant's responsibility to apply for payments.
(f) Authorizations for payments to suppliers. (1) The contract may
authorize that part or all of the Federal cost share for a BMP or an
identifiable unit be made directly to suppliers of materials or
services. The materials or services must be delivered or performed
before payment is made.
(2) Federal cost shares will not be in excess of the cost share
attributable to the material or service used or not in
[[Page 554]]
excess of the cost share for all identifiable units as may be requested
by the participant.
(g) Material inspection and analysis. When authorizations for
payments to suppliers are specified, the administering agency, its
representatives, or the Government reserve the right to inspect, sample,
and analyze materials or services prior to their use.
(h) Assignments, set-offs, and claims. (1) A State or local
administering agency may allow the assignment of payments to the extent
provided by State law. When ASCS is designated as the administering
agency, assignments by any participant who may be entitled to cost-share
payment under the program are prohibited unless they are made in
accordance with the provisions of section 203, Title 31, U.S.C., as
amended, and section 15, Title 41, U.S.C., as amended.
(2) If any participant to whom compensation is payable under RCWP is
indebted to the United States and such indebtedness is listed on the
county register of indebtedness maintained by the County ASC committee,
the compensation due the participant must be used (set-off) to reduce
that idebtedness. Indebtedness to USDA is to be given first
consideration. Deductions for setoffs involving a nonresident alien
shall be made as provided by 26 U.S.C. 871. Setoffs made pursuant to
this section are not to deprive the participant of any right to contest
the justness of the indebtedness involved, either by administrative
appeal or by legal action.
(3) Any cost-share payment due any participant shall be allowed
without deduction of claims for advances except as provided for above
and without regard to any claim or lien against any crop, or proceeds
thereof, in favor of the participant or any other creditor.
(i) Access to land unit and records. Any authorized administering
agency, or NRCS employees or agents, shall have the right of access at
reasonable times to land under application or contract, and the right to
examine any program records to ascertain the accuracy of any
representations made in the application or contract. This is limited to
the right to furnish technical assistance and to inspect work performed
under the contract.
(j) Suspension of payments. No cost-share payments will be made
pending a decision on whether or not a contract violation has occurred.
(k) Ineligible payments. The filing of requests for payment for
BMP's not carried out, or for BMP's carried out in such a manner that
they do not meet contract specifications, constitutes a violation of the
contract.
Sec. 634.28 Appeals not related to contract violations.
(a) The participant may, prior to execution of the contract, request
that the administering agency review or reconsider criteria being used
in developing his or her contract. Such review or reconsideration may
include the eligibility of BMP's which had not been approved for
application in the project area, cost-sharing levels for BMP's,
priorities for developing water quality plans, and standards and
specifications.
(1) If verbal agreement is not reached, the participant may make a
written request within 30 days after receiving notice of the decision of
his or her verbal request.
(2) The administering agency shall have 30 days in which to make a
decision and notify the participant in writing.
(3) The decision of the administering agency shall be final.
(b) If, after the contract has been executed, the participant and
the administering agency are unable to reach written agreement relative
on matters which are not related to contract violations, the participant
may request and receive a review by the appeals board. The administering
agency will:
(1) Notify the participant, in writing, of the date the appeals
board will consider the appeal.
(2) Within 30 days after receiving the administering agency's
notice, the participant may file a request to appear and present oral
and other evidence. If the participant does not request an appearance,
the administering agency appeals board will decide the dispute on
[[Page 555]]
the evidence available to them, including statements or briefs of the
authorized representatives of the soil conservation district and NRCS.
The administering agency shall notify the participants of the appeals
board's decision in writing. There shall be no further administrative
appeal of this decision.
(c) Filing of documents. A document is considered filed when it is
received in the office of the person or agency concerned.
Sec. 634.29 Violations.
(a) Actions causing violations. The following actions constitute
violation of a contract by a participant:
(1) Knowingly or negligently damaging or causing BMP's to become
impaired.
(2) Adopting a land use or practice during the contract period which
tends to defeat the purposes of the program.
(3) Failing to comply with the terms of the contract.
(4) Filing a false claim.
(5) Misusing authorizations for payment.
(b) Contract termination as a result of violations. (1) By signing a
contract, the participant agrees to forfeit all rights to further cost-
sharing payments under a contract and to refund all cost-share payments
received, with interest, if the administering agency, with the
concurrence of the State Conservationist, NRCS, determines that:
(i) There was a violation of the contract during the time the
participant had control of the land; and
(ii) The violation was of such a nature as to warrant termination of
the contract.
(2) The participant shall be obligated to refund all cost-share
payments and all cost shares paid under authorizations, with interest,
at the rates established by the Secretary of the Treasury pursuant to
Pub. L. 92-41, 85 Stat. 97.
(c) Payment adjustments and refunds resulting from violations. (1)
By signing a contract, the participant agrees to refund cost-share
payments received under the contract or to accept payment adjustments if
the administering agency determines and the State Conservationist, NRCS,
concurs that:
(i) There was a violation of the contract during the time the
participant had control of the land; and
(ii) The nature of the violation does not warrant termination of the
contract.
(2) Payment adjustments may include decreasing the rate of cost
share, or deleting from the contract a cost-share commitment, or
withholding cost-share payments earned but not paid. The participant who
signs the contract may be obligated to refund cost-share payments.
Sec. 634.30 Appeals in USDA administered projects.
The participant in a USDA-administered RCWP project may appeal
decisions of the administering agency in accordance with part 614 of
this title.
[60 FR 67316, Dec. 29, 1995]
Sec. 634.31 Appeals of contract violations.
(a) Scope. This section prescribes the regulations dealing with
contract violations. The Administrator, NRCS, reserves the right to
revise or supplement any of the provisions of this section at any time
if the action does not adversely affect the participant, or if the
participant has been officially notified before this action is taken.
(b) Determination by administering agency. Upon notification that a
contract violation may have occurred, the administering agency:
(1) Determines that a violation did not occur or that the violation
was of such a nature that no further action is to be taken; or
(2) Determines that a violation did occur and the participant agrees
to accept a written penalty of forfeiture, refund, payment adjustment,
or termination. If no agreement is reached, further action is to be
taken.
(c) Notice of possible violation. (1) When the administering agency
is notified that a contract violation may have occurred and the matter
is not resolved under Sec. 634.31(b)(1) it shall notify, in writing,
each participant who signed the contract of the alleged violation. This
notice setting forth the alleged violation may be personally delivered
or sent by certified or registered mail.
[[Page 556]]
A participant is considered to have received the notice at the time of
personal receipt acknowledged in writing, at the time of delivery of a
certified or registered letter, or at the time of the return of a
refused certified or registered letter.
(2) The notice shall give the participant an opportunity to appear
at a hearing before an appeals board. The participant's request for a
hearing shall be submitted in writing, and must be received by the
appeals board within 30 days after receipt of the notice. The
participant shall be notified in writing by the appeals board of the
time, date, and place for the hearing. The participant shall have no
right to a hearing if he does not file a written request for a hearing,
or if he or his representative does not appear at the appointed time,
unless the appeals board, at its discretion, permits an appearance. A
request for a hearing filed by a participant shall be considered to be a
request by all participants who signed the contract.
(d) Hearing. The appeals board shall conduct an open hearing to
obtain the facts about the alleged violation. The appeals board shall
limit the hearing to relevant facts and evidence, and shall not be bound
by the strict rules of evidence. Witnesses may be sworn in at the
discretion of the appeals board.
(1) The participant or his or her representative shall be given full
opportunity to present oral or documentary evidence about the alleged
violation. Likewise, the administering agency may submit statements and
evidence. Individuals not otherwise represented at the hearing may, at
the discretion of the appeals board, be permitted to give information or
evidence. The appeals board, at its discretion, may permit witnesses to
be cross-examined.
(2) The appeals board shall make a record of the hearing. A summary
of the testimony may be made if both the participant and the appeals
board agree. A transcript of the hearing shall be made if requested by
either the appeals board or the participant within 10 days prior to the
hearing. If a transcript is requested by the participant, the
participant may be assessed the cost of a copy of the transcript.
(3) The appeals board shall, after a reasonable period of time,
close the hearing if the participant or his or her representative is not
present at the scheduled time. The appeals board may, at its discretion,
accept information and evidence submitted by others present for the
hearing.
(4) The appeals board shall furnish the administering agency and the
State Conservationist, NRCS, with a written report setting forth their
findings, conclusions, and recommendations. The report shall include the
summary of testimony or transcript made of the hearing and any other
information which would aid the administering agency in reaching a
decision.
(e) Decision by the administering agency. The administering agency
shall make a decision within 30 days on the basis of the appeals board
report, recommendations of soil conservation district board, if any, and
any other information available, including if applicable, the amount of
the forfeiture, refund, or payment adjustment. The decision shall state
whether the violation is of such a nature as to warrant termination of
the contract. The administering agency shall notify, in writing, each
participant who signed the contract of its decision. The administering
agency may authorize or require the reopening of any hearing before the
appeals board for any reason at any time before their decision. The
administering agency's decision shall be final.
(1) If the decision provides for termination of the contract, it
shall state that the contract is terminated and that all rights to
further cost-share payments under the contract are forfeited and that
all cost-share payments received under the contract shall be refunded
with interest. The decision is to state the amount of refund and method
of payment.
(2) If the decision does not provide for termination of the
contract, the participant may be required to make a refund of cost-share
payments or to accept payment adjustments. The decision shall state the
amount and justification for refunds of cost-share payments or payment
adjustments.
[[Page 557]]
Subpart D_Financial Management
Sec. 634.40 Financial management.
(a)(1) Finance and accounting will be in conformance with Office of
Management & Budget Circular A-102, (Rev.); U.S. Department of Health,
Education & Welfare Brochure OASC-10, Federal Management Circular FMC
74-4, ``Cost Principles Applicable to Grants and Contracts with State
and Local Government''; Department of the Treasury, Department Circular
No. 1075 (4th Rev.), ``Withdrawal of Cash from the Treasury for Advances
under Federal Grant and other Programs''; Office of Management & Budget
Circular No. A-34, ``Instruction on Budget Execution''; U.S. Treasury
Requirements Manual for Guidance of Departments and Agencies; and
General Accounting Office Policy & Procedures Manual for Guidance of
Federal Agencies.
(2) Administering agency RCWP grants will be funded under Letter-of-
Credit serviced by the U.S. Treasury Regional Disbursing Office (RCO),
subject to the terms and conditions of the grant agreement or by NRCS
approved advance/reimbursement financing agreements.
(3) The State of local administering agency shall maintain a
financial management system which provides accurate and complete
disclosure of the financial status of the RCWP grant in accordance with
prescribed reporting requirements.
(4) The State or local administering agency shall upon request make
its financial management system records available to NRCS, USDA Office
of Inspector General, and the General Accounting Office.
(5) Participation in comprehensive USDA/EPA joint water quality
monitoring, evaluating, and analysis will be funded according to the
plan approved in Sec. 634.50(a)(3).
(b)(1) The carrying out of RCWP will require both financial and
performance reporting to the Natural Resources Conservation Service by
participating USDA and State or local agencies.
(2) USDA participating agencies shall furnish NRCS with reports
prescribed by the U.S. Treasury Department; Office of Management and
Budget; Administrative Regulations of the U.S. Department of
Agriculture; and other reports required by law, regulation, or
agreement.
(3) State or local administering agencies shall furnish financial
status reports to NRCS on a quarterly basis as required by the grant
agreement. The administering agency is also to provide an audit report
upon request. The audit report is to be prepared in sufficient detail to
allow NRCS to determine that funds have been used in compliance with
applicable laws, regulations, and the grant agreement.
Subpart E_Monitoring and Evaluation
Sec. 634.50 Program and project monitoring and evaluation.
(a) Comprehensive USDA/EPA joint water quality monitoring,
evaluation, and analysis. (1) Representative RCWP project areas will be
selected to evaluate the improvement in water quality in the project
area and to make projections on a nationwide basis. Water-quality
monitoring, evaluation, and analysis will be conducted to evaluate the
overall cost and effectiveness of projects and BMPs to provide
information on the impact of the program on improved water quality and
for general RCWP program management.
(2) Monitoring, evaluation, and analysis is a joint USDA/EPA
responsibility. Subject to appropriation of funds, the Administrator,
NRCS, and EPA are jointly to select the project areas to be monitored
and evaluated based on a list of project areas recommended by the
NRCWCC.
(3) The Administrator, NRCS, and Administrator, EPA, are jointly to
determine the criteria to be used for comprehensive water-quality
monitoring, evaluation, and analysis in the selected project areas. A
monitoring and evaluation plan is to be developed and agreed to by NRCS
and EPA prior to initiating a project selected for monitoring and
evaluation. The State water-quality agency and other Federal, State, and
local agencies will be involved in the development of the plan for
water-quality evaluation. The involvement of concerned agencies in
[[Page 558]]
implementing the plan will be determined at the time the plan is
prepared.
(4) The project areas selected for detailed analysis are to be
representative of agricultural and silvicultural nonpoint source
pollution problems, categories of agriculture and silvicutural nonpoint
source pollutants, agricultural enterprises, and BMPs used in the RCWP.
(5) Preference in the selection of project areas for comprehensive
evaluation is to be given to those project areas for which long-term
baseline information exists on land use, hydrologic data, and water
quality.
(6) Monitoring and evaluation of selected project areas is to begin
sufficiently in advance of the installation of BMPs to document, in a
statistically satisfactory manner, existing land-use practices and
baseline water-quality problems.
(7) The water quality monitoring and evaluation plan will provide
sufficient basic information to adequately describe the land use,
hydrologic water quality relationship. As a minimum, the plan will
contain the following components:
(i) Chemical and physical water quality monitoring,
(ii) Biological monitoring,
(iii) Appropriate hydrologic data,
(iv) Soils properties and characteristics, topographic information,
(v) Land use and farm inventory.
(b) Program and project evaluation. (1) There will be a continuing
evaluation of the Rural Clean Water Program to measure its effectiveness
and for each project for which cost-sharing funds are provided.
(2) Program and project evaluations will be conducted under the
direction of the Assistant Secretary for Conservation, Research and
Education, USDA, the Director of Economics, Policy Analysis, and Budget,
USDA; and the Assistant Administrator for Water and Waste Management,
EPA; or their representatives working through NRCWCC.
(3) Evaluative reports for the program and each project area will be
submitted annually to the Secretary of Agriculture and the
Administrator, EPA.
(c) Funding. (1) Research oriented activities will be from sources
other than RCWP.
(2) Funding for program and project monitoring and evaluation will
be provided through RCWP and other authorizations.
PART 635_EQUITABLE RELIEF FROM INELIGIBILITY
Sec.
635.1 Definitions and abbreviations.
635.2 Applicability.
635.3 Reliance on incorrect actions or information.
635.4 Failure to fully comply.
635.5 Forms of relief.
635.6 Equitable relief by State Conservationists.
635.7 Procedures for granting equitable relief.
Authority: 7 U.S.C. 7996.
Source: 69 FR 56347, Sept. 21, 2004, unless otherwise noted.
Sec. 635.1 Definitions and abbreviations.
The following terms apply to this part:
Covered program means a natural resource conservation program
specified in Sec. 635.3.
Chief means the Chief of the Natural Resources Conservation Service
or the person delegated authority to act for the Chief.
FSA means the Farm Service Agency of the United States Department of
Agriculture.
NRCS means the Natural Resources Conservation Service of the United
States Department of Agriculture.
OGC means the Office of the General Counsel of the United States
Department of Agriculture.
Secretary means the Secretary of the U.S. Department of Agriculture.
State Conservationist means the NRCS employee authorized to direct
and supervise NRCS activities in a State, the Caribbean Area, or the
Pacific Basin area, or the State Conservationist's designee.
[[Page 559]]
Sec. 635.2 Applicability.
(a) This part is applicable to all covered conservation programs
administered by the Natural Resources Conservation Service, except for
the Highly Erodible Land and Wetland Conservation provisions of Title
XII, subtitles B and C of the Food Security Act of 1985, as amended, (16
U.S.C. 3811 et seq.). Administration of this part shall be under the
supervision of the Chief, except that such authority shall not limit the
exercise of authority by State Conservationists of the Natural Resources
Conservation Service provided in Sec. 635.6.
(b) The equitable relief available under this part does not apply
where the action for which relief is requested occurred before May 13,
2002. In such cases, authority that was effective prior to May 13, 2002,
shall be applied.
(c) This part does not apply to a conservation program administered
by the Farm Service Agency of the United States Department of
Agriculture.
Sec. 635.3 Reliance on incorrect actions or information.
(a) The Chief, or designee, may grant relief by extending benefits
or payments in accordance with Sec. 635.5 when any participant that has
been determined to be not in compliance with the requirements of a
covered NRCS program, and therefore ineligible for a loan, payment, or
other benefit under the covered program, if the participant, acting in
good faith, relied upon the action or advice of an NRCS employee or
representative of the United States Department of Agriculture, to the
detriment of the participant.
(b) This section applies only to a participant who relied upon the
action of, or information provided by, an NRCS employee, or
representative of USDA, and the participant acted, or failed to act, as
a result of that action or information. This part does not apply to
cases where the participant had sufficient reason to know that the
action or information upon which they relied was improper or erroneous
or where the participant acted in reliance on their own misunderstanding
or misinterpretation of program provisions, notices or information.
Sec. 635.4 Failure to fully comply.
(a) When a participant fails to fully comply with the terms and
conditions of a covered program, the Chief, or designee, may grant
relief in accordance with Sec. 635.5 if the participant made a good
faith effort to comply fully with the requirements of the covered
program.
(b) This section only applies to participants who are determined by
the Chief to have made a good faith effort to comply fully with the
terms and conditions of the program and rendered substantial
performance.
(c) In determining whether a participant acted in good faith and
rendered substantial performance under paragraph (b) of this section,
the Chief, or designee, shall consider such factors as whether--
(1) Performance of the primary conservation program requirements
were completed; or
(2) The actions of the participant resulted in minimal damages or
failure that were minor in nature.
Sec. 635.5 Forms of relief.
(a) The Chief, or designee, may authorize a participant in a covered
program to:
(1) Retain loans, payments, or other benefits received under the
covered program;
(2) Continue to receive loans, payments, and other benefits under
the covered program;
(3) Continue to participate, in whole or in part, under any contract
executed under the covered program;
(4) In the case of a conservation program, re-enroll all or part of
the land covered by the program; and
(5) Receive such other equitable relief as determined to be
appropriate.
(b) As a condition of receiving relief under this part, the
participant may be required to remedy their failure to meet the program
requirement or mitigate its affects.
Sec. 635.6 Equitable relief by State Conservationists.
(a) General nature of the authority. Notwithstanding provisions in
this part providing supervision and relief authority to other officials,
the State
[[Page 560]]
Conservationist, without further review by other officials (other than
the Secretary), may grant relief as set forth in Sec. 635.5 to a
participant under the provisions of Sec. Sec. 635.3 and 635.4 so long
as:
(1) The program matter with respect to which the relief is sought is
a program matter in a covered program which is operated within the State
under the control of the State Conservationist;
(2) The total amount of relief which will be provided to the
participant (that is, to the individual or entity that applies for the
relief) under this authority for errors during the fiscal year is less
than $20,000 (included in that calculation, any loan amount or other
benefit of any kind payable for the fiscal year);
(3) The total amount of such relief which has been previously
provided to the participant using this authority for errors in a fiscal
year, as calculated in paragraph (a)(2) of this section, is not more
than $5,000;
(4) The total amount of loans, payments, and benefits of any kind
for which relief is provided to similarly situated participants by a
State Conservationist for errors for a fiscal year under the authority
provided in this section, as calculated in paragraph (a)(2), is not more
than $1,000,000.
(b) Additional limits on the authority. The authority provided under
this section does not extend to the administration of:
(1) Payment limitations under 7 CFR part 1400;
(2) Payment limitations under a conservation program administered by
the Secretary; or
(3) The highly erodible land and wetland conservation requirements
under subtitles B or C of Title XII of the Food Security Act of 1985 (16
U.S.C. 3811 et seq.).
(c) Relief shall only be made under this part after consultation
with, and the approval of, the Office of the General Counsel.
(d) Secretary's reversal authority. A decision made under this part
by the State Conservationist may be reversed only by the Secretary, who
may not delegate that authority.
(e) Relation to other authorities. The authority provided under this
section is in addition to any other applicable authority that may allow
relief.
Sec. 635.7 Procedures for granting equitable relief.
(a) Application for equitable relief by covered program
participants. For the purposes of this part, the following conservation
programs administered by NRCS are identified as ``covered programs'':
(1) Agricultural Management Assistance (AMA);
(2) Conservation Security Program (CSP);
(3) Emergency Watershed Protection, Floodplain Easement Component
(EWP-FPE);
(4) Environmental Quality Incentives Program (EQIP);
(5) Farm and Ranch Lands Protection Program (FRPP);
(6) Grassland Reserve Program (GRP);
(7) Resource Conservation and Development Program (RC&D);
(8) Water Bank Program (WBP);
(9) Watershed Protection and Flood Prevention Program, (WPFPP)
(long-term contracts only);
(10) Wetlands Reserve Program (WRP);
(11) Wildlife Habitat Incentives Program (WHIP);
(12) Any other conservation program administered by NRCS which
subsequently incorporates these procedures within the program
regulations or policies.
(b) Participants may request equitable relief from the Chief or the
State Conservationist with respect to:
(1) Reliance on the actions or advice of an authorized NRCS
representative; or
(2) Failure to fully comply with the program requirements but made a
good faith effort to comply.
(c) Only a participant directly affected by the non-compliance with
the covered program requirements may seek equitable relief under
Sec. 635.6.
(d) Requests for equitable relief must be made in writing, no later
than 30 calendar days from the date of receipt of the notification of
non-compliance
[[Page 561]]
with the requirements of the covered conservation program.
(e) Requests for equitable relief shall include the following
information:
(1) The reason why the participant was unable to comply with the
requirements of the conservation program;
(2) Details regarding how much of the required action had been
completed;
(3) Why the participant did not have sufficient reason to know that
the action or information relied upon was improper or erroneous;
(4) Whether the participant did not act in reliance on their own
misunderstanding or misinterpretation of the conservation program
provisions, notices, or information; and
(5) Any other pertinent facts or supporting documentation.
PART 636_WILDLIFE HABITAT INCENTIVE PROGRAM
Sec.
636.1 Applicability.
636.2 Administration.
636.3 Definitions.
636.4 Program requirements.
636.5 National priorities.
636.6 Establishing priority for enrollment in WHIP.
636.7 Cost-share payments.
636.8 WHIP plan of operation.
636.9 Cost-share agreements.
636.10 Modifications.
636.11 Transfer of interest in a cost-share agreement.
636.12 Termination of cost-share agreements.
636.13 Violations and remedies.
636.14 Misrepresentation and scheme or device.
636.15 Offsets and assignments.
636.16 Appeals.
636.17 Compliance with regulatory measures.
636.18 Technical services provided by qualified personnel not
affiliated with USDA.
636.19 Access to operating unit.
636.20 Equitable relief.
636.21 Environmental services credits for conservation improvements.
Authority: 16 U.S.C. 3839bb-1.
Source: 75 FR 71338, Nov. 23, 2010, unless otherwise noted.
Sec. 636.1 Applicability.
(a) The purpose of the Wildlife Habitat Incentive Program (WHIP) is
to help participants develop fish and wildlife habitat on private
agricultural land, nonindustrial private forest land (NIPF), and Indian
land.
(b) The regulations in this part set forth the requirements for
WHIP.
(c) The Chief, Natural Resources Conservation Service (NRCS), may
implement WHIP in any of the 50 States, District of Columbia, Puerto
Rico, Guam, the Virgin Islands of the United States, American Samoa, and
the Commonwealth of the Northern Mariana Islands.
Sec. 636.2 Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Chief. The funds, facilities,
and authorities of the Commodity Credit Corporation (CCC) are available
to NRCS to carry out WHIP. Accordingly, where NRCS is mentioned in this
part, it also refers to CCC's funds, facilities, and authorities, where
applicable.
(b) The State Conservationist may accept recommendations from the
State Technical Committee and Tribal Conservation Advisory Council (for
tribal land) in the implementation of the program and in establishing
program direction for WHIP in the applicable State or tribal land. The
State Conservationist has the authority to accept or reject the State
Technical Committee and the Tribal Conservation Advisory Council's (for
tribal land) recommendation; however, the State Conservationist will
give strong consideration to the State Technical Committee and the
Tribal Conservation Advisory Council's recommendation.
(c) NRCS may enter into agreements with Federal and State agencies,
Indian tribes, conservation districts, local units of government, public
and private organizations, and individuals to assist with program
implementation, including the provision of technical assistance. NRCS
may make payments pursuant to said agreements for program implementation
and for other goals consistent with the program provided for in this
part.
(d) NRCS will provide the public with notice of opportunities to
apply for participation in the program.
[[Page 562]]
(e) No delegation in this part to lower organizational levels will
preclude the Chief, or designee, from determining any issues arising
under this part or from reversing or modifying any determination made
under this part.
Sec. 636.3 Definitions.
The following definitions will apply to this part, and all documents
issued in accordance with this part, unless specified otherwise:
Agricultural lands means cropland, grassland, rangeland,
pastureland, and other land determined by NRCS to be suitable for fish
and wildlife habitat development on which agricultural and forest-
related products or livestock are or have the potential to be produced.
Agricultural lands may include cropped woodland, wetlands, waterways,
streams, incidental areas included in the agricultural operation, and
other types of land used for or have the potential to be used for
production.
Applicant means a person, legal entity, joint operation, or Indian
tribe that has an interest in agricultural land, NIPF, Indian land, or
other lands identified in 636.4(c)4, who has requested in writing to
participate in WHIP.
At-risk species means any plant or animal species listed as
threatened or endangered; proposed or candidate for listing under the
Endangered Species Act (ESA); a species listed as threatened or
endangered under State law or tribal law on tribal land; State or tribal
land species of conservation concern; or other plant or animal species
or community, as determined by the State Conservationist, with advice
from the State Technical Committee and Tribal Conservation Advisory
Council (for tribal land), that has undergone, or likely to undergo,
population decline and may become imperiled without direct intervention.
Beginning farmer or rancher means an individual or entity who:
(1) Has not operated a farm or ranch, or who has operated a farm or
ranch for not more than 10 consecutive years. This requirement applies
to all members of an entity, who will materially and substantially
participate in the operation of the farm or ranch.
(2) In the case of a cost-share agreement with an individual,
individually, or with the immediate family, material and substantial
participation requires that the individual provide substantial day-to-
day labor and management of the farm or ranch consistent with the
practices in the county or State where the farm is located.
(3) In the case of a cost-share agreement with an entity or joint
operation, all members must materially and substantially participate in
the operation of the farm or ranch. Material and substantial
participation requires that each of the members provide some amount of
the management, or labor and management necessary for day-to-day
activities, such that if each of the members did not provide these
inputs, operation of the farm or ranch would be seriously impaired.
Chief means the Chief of NRCS or designee.
Conservation activities means conservation systems, practices, or
management measures needed to address a resource concern or improve
environmental quality through the treatment of natural resources, and
includes structural, vegetative, and management activities, as
determined by NRCS.
Conservation district means any district or unit of State, tribal,
or local government formed under State, tribal, or territorial law for
the express purpose of developing and carrying out a local soil and
water conservation program. Such district or unit of government may be
referred to as a conservation district, soil conservation district, soil
and water conservation district, resource conservation district, natural
resource district, land conservation committee, or similar name.
Conservation practice means one or more conservation improvements
and activities, including structural practices, land management
practices, vegetative practices, forest management, and other
improvements that benefit the eligible land and achieve program
purposes. Approved conservation practices are listed in the NRCS Field
Office Technical Guide (FOTG).
Cost-share agreement means a financial assistance document that
specifies
[[Page 563]]
the rights and obligations of any participant accepted into the program.
A WHIP cost-share agreement is a binding agreement for the transfer of
assistance from the Department of Agriculture (USDA) to the participant
to share in the costs of applying conservation activities.
Cost-share payment means the payments under the WHIP cost-share
agreement to develop fish and wildlife habitat or accomplish other goals
consistent with the program provided for in this part.
Designated conservationist means an NRCS employee whom the State
Conservationist has designated as responsible for WHIP administration in
a specific area.
Field Office Technical Guide means the official local NRCS source of
resource information and interpretations of guidelines, criteria, and
requirements for planning and applying conservation practices and
conservation management systems. It contains detailed information on the
conservation of soil, water, air, plant, and animal resources applicable
to the local area for which it is prepared.
Habitat development means the conservation activities implemented to
establish, improve, protect, enhance, or restore the conditions of the
land for the specific purpose of improving conditions for fish and
wildlife.
Historically underserved producer means an eligible person, joint
operation, legal entity, or Indian tribe who is a beginning farmer or
rancher, socially disadvantaged farmer or rancher, limited resource
farmer or rancher, or NIPF landowner who meets the beginning, socially
disadvantaged, or limited resource qualifications set forth in
Sec. 636.3.
Indian land means:
(1) Land held in trust by the United States for individual Indians
or Indian tribes, or
(2) Land, the title to which is held by individual Indians or Indian
tribes subject to Federal restrictions against alienation or
encumbrance, or
(3) Land which is subject to rights of use, occupancy, and benefit
of certain Indian tribes, or
(4) Land held in fee title by an Indian, Indian family, or Indian
tribe.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) that is
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.
Joint operation means, as defined in 7 CFR part 1400, a general
partnership, joint venture, or other similar business organization in
which the members are jointly and severally liable for the obligations
of the organization.
Legal entity means, as defined in 7 CFR part 1400, an entity created
under Federal or State law that:
(1) Owns land or an agricultural commodity, product, or livestock;
or
(2) Produces an agricultural commodity, product, or livestock.
Lifespan means the period of time during which a conservation
practice is to be operated and maintained for the intended purpose.
Limited resource farmer or rancher means:
(1) A person with direct or indirect gross farm sales of not more
than $142,000 in each of the previous 2 years (this is the amount for
2010, and adjusted for inflation using Prices Paid by Farmer Index as
compiled by National Agricultural Statistical Service); and
(2) Has a total household income at or below the national poverty
level for a family of four, or less than 50 percent of county median
household income in each of the previous 2 years (to be determined
annually using the Department of Commerce Data).
Liquidated damages means a sum of money stipulated in the WHIP cost-
share agreement that the participant agrees to pay NRCS if the
participant fails to adequately complete the terms of the cost-share
agreement. The sum represents an estimate of the technical assistance
expenses incurred to service the agreement, and reflects the
difficulties of proof of loss and the inconvenience or non-feasibility
of otherwise obtaining an adequate remedy.
[[Page 564]]
Livestock means all animals produced on farms and ranches, as
determined by the Chief.
Natural Resources Conservation Service is an agency of USDA, which
has the responsibility for administering WHIP using the funds,
facilities, and authorities of the CCC.
Nonindustrial private forest land means rural land, as determined by
the Secretary, that has existing tree cover or is suitable for growing
trees and is owned by any nonindustrial private individual, group,
association, corporation, Indian tribe, or other private legal entity
that has definitive decisionmaking authority over the land.
Operation and maintenance means work performed by the participant to
keep the applied conservation activities functioning for the intended
purpose during the conservation practice lifespan. Operation includes
the administration, management, and performance of non-maintenance
actions needed to keep the completed activity functioning as intended.
Maintenance includes work to prevent deterioration of the practice,
repairing damage, or replacement of the practice to its original
condition if one or more components fail.
Operation and maintenance agreement means the document that, in
conjunction with the WHIP plan of operations, specifies the operation
and maintenance (O&M) responsibilities of the participants for
conservation activities implemented with WHIP assistance.
Participant means a person, legal entity, joint operation, or Indian
tribe that is receiving payment or is responsible for implementing the
terms and conditions of a WHIP cost-share agreement.
Person means, as defined in 7 CFR part 1400, an individual, natural
person and does not include a legal entity.
Producer means, as defined in 7 CFR part 1400, a person, legal
entity, joint operation, or Indian tribe who has an interest in the
agricultural operation or who is engaged in agricultural production or
forestry management.
Resource concern means a specific natural resource problem that
represents a significant concern in a State or region, and is likely to
be addressed successfully through the implementation of the conservation
activities by participants.
Secretary means the Secretary of USDA.
Socially disadvantaged farmer or rancher means a farmer or rancher
who has been subjected to racial or ethnic prejudices because of their
identity as a member of a group without regard to their individual
qualities. Those groups include African Americans, American Indians or
Alaskan Natives, Hispanics, and Asians or Pacific Islanders.
State Conservationist means the NRCS employee authorized to
implement WHIP and direct and supervise NRCS activities in a State,
Caribbean Area, or the Pacific Islands Area.
State Technical Committee means a committee established by the
Secretary in a State pursuant to 16 U.S.C. 3861.
Technical assistance means technical expertise, information, and
tools necessary for the conservation of natural resources on land active
in agricultural, forestry, or related uses. The term includes the
following:
(1) Technical services provided directly to farmers, ranchers, and
other eligible entities, such as conservation planning, technical
consultation, and assistance with design and implementation of
conservation practices; and
(2) Technical infrastructure, including activities, processes,
tools, and agency functions needed to support delivery of technical
services, such as technical standards, resource inventories, training,
data, technology, monitoring, and effects analyses.
Technical service provider means an individual, entity, Indian
tribe, or public agency either:
(1) Certified by NRCS and placed on the approved list to provide
technical services to participants; or
(2) Selected by the Department to assist the Department in the
implementation of conservation programs covered by this part through a
procurement contract, contribution agreement, or cooperative agreement
with the Department.
Tribal Conservation Advisory Council means a committee established
by a State Conservationist to implement consultation as defined in
General Manual 410 Part 405.
[[Page 565]]
WHIP plan of operations means the document that identifies the
location and timing of conservation activities that the participant
agrees to implement on eligible land in order to develop fish and
wildlife habitat and provide environmental benefits. The WHIP plan of
operations is a part of the WHIP cost-share agreement.
Wildlife means non-domesticated birds, fishes, reptiles, amphibians,
invertebrates, and mammals.
Wildlife habitat means the aquatic and terrestrial environments
required for fish and wildlife to complete their life cycles, providing
air, food, cover, water, and spatial requirements.
Sec. 636.4 Program requirements.
(a) To participate in WHIP, an applicant must:
(1) Be in compliance with the highly erodible and wetland
conservation provisions found in 7 CFR part 12;
(2) Be in compliance with the terms of all other USDA-administered
conservation program contracts to which the participant is a party;
(3) Develop and agree to comply with a WHIP plan of operations and
O&M agreement, as described in Sec. 636.8;
(4) Enter into a cost-share agreement for the development of fish
and wildlife habitat as described in Sec. 636.9;
(5) Provide NRCS with written evidence of ownership or legal control
of land for the term of the proposed cost-share agreement, including the
O&M agreement. An exception may be made by the Chief in the case of land
allotted by the Bureau of Indian Affairs (BIA) or Indian land where
there is sufficient assurance of control;
(6) Agree to provide all information to NRCS determined to be
necessary to assess the merits of a proposed project and to monitor
cost-share agreement compliance;
(7) Agree to grant to NRCS or its representatives access to the land
for purposes related to application, assessment, monitoring,
enforcement, verification of certifications, or other actions required
to implement this part;
(8) Provide a list of all members of the legal entity and embedded
entities along with members' tax identification numbers and percentage
interest in the entity. Where applicable, American Indians, Alaska
Natives, and Pacific Islanders may use another unique identification
number for each individual eligible for payment;
(9) With regard to cost-share agreements with individual Indians or
Indians represented by the BIA, payments exceeding the payment
limitation may be made to the tribal participant if a BIA or tribal
official certifies in writing that no one individual, directly or
indirectly, will receive more than the payment limitation. The BIA or
tribal entity must also provide annually, a listing of individuals and
payments made, by tax identification number or other unique
identification number, during the previous year for calculation of
overall payment limitations. The tribal entity must also produce, at the
request of NRCS, proof of payments made to the person or legal entity
that incurred costs related to conservation activity implementation;
(10) Supply information, as required by NRCS, to determine
eligibility for the program including, but not limited to, information
to verify the applicant's status as a limited resource farmer or rancher
or beginning farmer or rancher and payment eligibility as established by
7 CFR part 1400, Adjusted Gross Income (AGI);
(11) With regard to any participant that utilizes a unique
identification number as an alternative to a tax identification number,
the participant will utilize only that identifier for any and all other
WHIP cost-share agreements to which the participant is a party.
Violators will be considered to have provided fraudulent representation
and are subject to Sec. 636.13; and
(12) Comply with applicable registration and reporting requirements
of the Federal Funding Accountability and Transparency Act of 2006 (Pub.
L. 109-282, as amended) and 2 CFR parts 25 and 170.
(b) Eligible land includes:
(1) Private agricultural land;
(2) NIPF;
(3) Indian land; and
(4) Trust land owned in fee title by a State, including an agency or
subdivision of a State, when such trust land is held under a long-term
lease by a person or nongovernmental entity and
[[Page 566]]
when the Chief determines that (i) by the nature of the lease, such land
is tantamount to private agricultural land; (ii) the duration of the
lease is at least the length of any WHIP agreement; and (iii) no funds
under the WHIP program are paid to a governmental entity.
(c) Ineligible land. NRCS will not provide cost-share assistance
with respect to land:
(1) Enrolled in a program where fish and wildlife habitat objectives
have been sufficiently achieved, as determined by NRCS;
(2) With onsite or offsite conditions which NRCS determines would
undermine the benefits of the habitat development or otherwise reduce
its value;
(3) On which habitat for threatened or endangered species, as
defined in section 3 of the ESA, 16 U.S.C. 1532, would be adversely
affected; or
(4) That is owned in fee title by an agency of the United States,
other than:
(i) Land held in trust for Indian tribes, and
(ii) Lands owned in fee title by a State, including an agency or
subdivision of a State or a unit of government except as provided in
Sec. 636.4(b)(4).
Sec. 636.5 National priorities.
(a) The following national priorities will be used in WHIP
implementation:
(1) Promote the restoration of declining or important native fish
and wildlife habitats;
(2) Protect, restore, develop, or enhance fish and wildlife habitat
to benefit at-risk species;
(3) Reduce the impacts of invasive species on fish and wildlife
habitats;
(4) Protect, restore, develop, or enhance declining or important
aquatic wildlife species' habitats; and
(5) Protect, restore, develop, or enhance important migration and
other movement corridors for wildlife.
(b) NRCS, with advice of other Federal agencies, will undertake
periodic reviews of the national priorities and the effects of program
delivery at the State, tribal, and local levels to adapt the program to
address emerging resource issues. NRCS will:
(1) Use the national priorities to guide the allocation of WHIP
funds to the State offices;
(2) Use the national priorities in conjunction with State, tribal,
and local priorities to assist with prioritization and selection of WHIP
applications; and
(3) Periodically review and update the national priorities utilizing
input from the public, Indian tribes, and affected stakeholders to
ensure that the program continues to address priority resource concerns.
Sec. 636.6 Establishing priority for enrollment in WHIP.
(a) NRCS, in consultation with Federal and State agencies, tribal,
and conservation partners, may identify priorities for enrollment in
WHIP that will complement the goals and objectives of relevant fish and
wildlife conservation initiatives at the State, regional, tribal land,
or national levels. In response to national, tribal, regional, or State
fish and wildlife habitat concerns, the Chief may focus program
implementation in any given year to specific geographic areas or to
address specific habitat development needs.
(b) The State Conservationist, with recommendations from the State
Technical Committee and Tribal Conservation Advisory Council (for tribal
land), may give priority to WHIP projects that will address unique
habitats or special geographic areas identified in the State. Subsequent
cost-share agreement offers that would complement previous cost-share
agreements due to geographic proximity of the lands involved or other
relationships may receive priority consideration for participation.
(c) NRCS will evaluate the applications and make enrollment
decisions based on the fish and wildlife habitat need using some or all
of the following criteria:
(1) Contribution to resolving an identified habitat concern of
national, tribal, regional, or State importance including at-risk
species;
(2) Relationship to any established wildlife or conservation
priority areas;
[[Page 567]]
(3) Duration of benefits to be obtained from the habitat development
practices;
(4) Self-sustaining nature of the habitat development practices;
(5) Availability of other partnership matching funds or reduced
funding request by the person applying for participation;
(6) Estimated costs of fish and wildlife habitat development
activities;
(7) Other factors determined appropriate by NRCS to meet the
objectives of the program; and
(8) Willingness of the applicant to complete all conservation
improvements during the first 2 years of the WHIP cost-share agreement.
Sec. 636.7 Cost-share payments.
(a) NRCS may share the cost with a participant for implementing the
conservation activities as provided in the WHIP plan of operations that
is a component of the WHIP cost-share agreement:
(1) Except as provided in paragraph (a)(2) of this section and in
Sec. 636.9(c), NRCS will offer to pay no more than 75 percent of the
costs to develop fish and wildlife habitat. The cost-share payment to a
participant will be reduced proportionately below 75 percent to the
extent that direct Federal financial assistance is provided to the
participant from sources other than NRCS, except for certain cases that
merit additional cost-share assistance to achieve the intended goals of
the program, as determined by the State Conservationist.
(2) Historically underserved producers, as defined in Sec. 636.3,
and Indian tribes may receive the applicable payment rate and an
additional rate that is not less than 25 percent above the applicable
rate, provided that this increase does not exceed 90 percent of the
estimated costs associated with WHIP plan of operations implementation.
(b) Cost-share payments may be made only upon a determination by
NRCS that a conservation activity or an identifiable component of a
conservation activity has been established in compliance with
appropriate standards and specifications.
(c) Payments will not be made for a conservation activity that was:
(1) Applied prior to application for the program; or
(2) Initiated or implemented prior to cost-share agreement approval,
unless a waiver was granted by the State Conservationist or designated
conservationist prior to implementation.
(d) NRCS, in consultation with the State Technical Committee, will
identify and provide public notice of the conservation activities
eligible for payment under the program.
(e) Cost-share payments may be made for the establishment and
installation of additional eligible conservation activities, or the
maintenance or replacement of an eligible conservation activity, but
only if NRCS determines the conservation activity is needed to meet the
objectives of the program, or that the failure of the original project
was due to reasons beyond the control of the participant.
(f) Payments made or attributed to a participant, directly or
indirectly, may not exceed, in the aggregate, $50,000 per year.
(g) Eligibility for payment in accordance with 7 CFR part 1400,
subpart G, average AGI limitation, will be determined prior to cost-
share agreement approval.
(h) Subject to fund availability, the payment rates identified in a
WHIP contract may be adjusted by NRCS to reflect increased costs.
(i) A participant will not be eligible for payments for conservation
activities on eligible land if the participant receives payments or
other benefits for the same activity on the same land under any other
conservation program administered by USDA.
(j) Before NRCS will approve and issue final payment, the
participant must certify that the conservation activity has been
completed in accordance with the cost-share agreement, and NRCS or an
approved Technical Service Provider (TSP) must certify that the activity
has been carried out in accordance with the applicable FOTG.
(k) NRCS, for a fiscal year, may use up to 25 percent of WHIP funds
to carry out cost-share agreements described in Sec. 636.9(c).
[[Page 568]]
Sec. 636.8 WHIP plan of operations.
(a) As a condition of participation, the participant develops a WHIP
plan of operations with the assistance of NRCS or other public or
private natural resource professionals who are approved by NRCS. A WHIP
plan of operations encompasses the parcel of land where habitat will be
established, improved, protected, enhanced, or restored. The WHIP plan
of operations will be approved by NRCS and address at least one of the
following as determined by NRCS:
(1) Fish and wildlife habitat conditions that are of concern to the
participant;
(2) Fish and wildlife habitat concerns identified in State,
regional, tribal land, or national conservation initiatives, as
referenced in Sec. 636.6(a); or
(3) Fish and wildlife habitat concerns identified in an approved
area-wide plan that addresses the wildlife resource habitat concern.
(b) The WHIP plan of operations forms the basis for the WHIP cost-
share agreement and will be attached and included as part of the cost-
share agreement, along with the O&M agreement. The WHIP plan of
operations includes a schedule for implementation and maintenance of the
conservation activities, as determined by NRCS.
(c) The WHIP plan of operations may be modified in accordance with
Sec. 636.10.
(d) All conservation activities in the WHIP plan of operations must
be approved by NRCS and developed and carried out in accordance with the
applicable FOTG.
(e) The participant is responsible for the implementation of the
WHIP plan of operations.
Sec. 636.9 Cost-share agreements.
(a) To apply for WHIP cost-share assistance, a person, tribe, or
legal entity must submit an application for participation at a USDA
Service Center to an NRCS representative.
(b) A WHIP cost-share agreement will:
(1) Incorporate the WHIP plan of operations;
(2) Be for a time period agreed to by the participant and NRCS, with
a minimum duration of one year after the completion of conservation
activities identified in the WHIP plan of operations and a maximum of 10
years, except for agreements entered into under paragraph (c) of this
section;
(3) Include all provisions as required by law or statute;
(4) Include any participant reporting and recordkeeping requirements
to determine compliance with the cost-share agreement and program;
(5) Be signed by the participant;
(6) Specify payment limits described in Sec. 636.7(f) including any
additional payment limitation associated with determinations made under
Sec. 636.7(g);
(7) Include an O&M agreement that describes the O&M for each
conservation activity and the agency expectation that WHIP-funded
conservation activities will be operated and maintained for their
expected lifespan; and
(8) Include any other provision determined necessary or appropriate
by the NRCS representative.
(c) Notwithstanding any limitation of this part, NRCS may enter into
a long-term cost-share agreement that:
(1) Is for a term of at least 15 years;
(2) Protects and restores essential plant or animal habitat, as
determined by NRCS; and
(3) Provides cost-share payments of no more than 90 percent of the
cost of implementing the WHIP plan of operations to develop fish and
wildlife habitat.
Sec. 636.10 Modifications.
(a) The participant and NRCS may modify a cost-share agreement if
both parties agree to the modification. The WHIP plan of operations is
revised in accordance with NRCS requirements, and the agreement is
approved by the designated conservationist.
(b) Any modifications made under this section must meet WHIP program
objectives and must be in compliance with this part.
(c) In the event implementation of a conservation activity fails
through no fault of the participant, the State Conservationist may
modify the cost-share agreement in order to issue payments to re-
implement the activity, at the rates established in accordance with
Sec. 636.7, provided such payments do not exceed the payment limitation
requirements as set forth in Sec. 636.7.
[[Page 569]]
(d) Where circumstances beyond the participant's control or when it
is in the public interest, such as matters of health or safety, the
State Conservationist may independently or by mutual agreement with the
parties modify or terminate the cost-share agreement as provided for in
Sec. 636.12.
Sec. 636.11 Transfer of interest in a cost-share agreement.
(a) A participant is responsible for notifying NRCS when he or she
anticipates the voluntary or involuntary loss of control of the land
covered by a WHIP cost-share agreement during the term of the agreement.
(b) The participant and NRCS may agree to transfer a cost-share
agreement to another potential participant. The transferee must be
determined by NRCS to be eligible to participate in WHIP and must assume
full responsibility under the cost-share agreement.
(c) With respect to any and all payments owed to participants who
wish to transfer ownership or control of land subject to a cost-share
agreement, the division of payment will be determined by the original
party and that party's successor. In the event of a dispute or claim on
the distribution of cost-share payments, NRCS may withhold payments
without the accrual of interest pending a settlement or adjudication on
the rights to the funds.
(d) If new participants are not willing or not eligible to assume
the responsibilities of an existing WHIP cost-share agreement, including
the O&M agreement, and the participant fails to implement the cost-share
agreement, then NRCS will terminate the agreement and may require that
all cost-share payments be forfeited, refunded, or both, with applicable
interest in accordance with Sec. 636.12. Participants may be subject to
liquidated damages in accordance with Sec. 636.12.
Sec. 636.12 Termination of cost-share agreements.
(a) The State Conservationist may, independently or by mutual
agreement with the parties to the cost-share agreement, terminate the
cost-share agreement where:
(1) The parties to the cost-share agreement are unable to comply
with the terms of the cost-share agreement as the result of conditions
beyond their control;
(2) Termination of the cost-share agreement would, as determined by
the State Conservationist, be in the public interest; or
(3) A participant fails to correct a violation of a cost-share
agreement within the period provided by NRCS in accordance with
Sec. 636.13.
(b) If NRCS terminates a cost-share agreement, in accordance with
the provisions of paragraphs (a)(1) and (a)(2) of this section the State
Conservationist may allow the participant to retain a portion of any
payments received appropriate to the effort the participant has made to
comply with the contract.
(1) NRCS may require a participant to provide only a partial refund
of the payments received if a previously implemented conservation
activity can function independently, and is not adversely affected by
the violation or the absence of other conservation activities that would
have been implemented under the cost-share agreement; and
(2) The State Conservationist will have the option to waive all or
part of the liquidated damages assessed, depending upon the
circumstances of the case.
(c) When making termination decisions, NRCS may reduce the amount of
money owed by the participant by a proportion that reflects:
(1) The good faith effort of the participant to comply with the
cost-share agreement; or
(2) The existence of hardships beyond the participant's control that
have prevented compliance. If a participant claims hardship, that claim
must be documented and cannot have existed when the applicant applied
for participation in the program.
Sec. 636.13 Violations and remedies.
(a) If NRCS determines that a participant is in violation of a cost-
share agreement, NRCS will give the parties to the cost-share agreement
notice of the violation and a minimum of 60 days to correct the
violation and comply with the terms of the cost-share agreement and
attachments thereto.
(b) If the participant fails to correct the violation of a cost-
share agreement
[[Page 570]]
within the period provided by NRCS under paragraph (a) of this section,
NRCS may terminate the agreement and require the participant to refund
all or part of any of the funds issued under that cost-share agreement,
plus interest, and may assess liquidated damages as indicated in the
cost-share agreement appendix, as well as require the participant to
forfeit all rights to any future payment under the agreement.
(c) If NRCS terminates a cost-share agreement due to breach of
contract, the participant will forfeit all rights to future payments
under the agreement, may be required to pay liquidated damages in an
amount determined by the State Conservationist in accordance with the
terms of the agreement, and will refund all or part of the payments
received, plus interest. Participants violating WHIP cost-share
agreements may be determined ineligible for future NRCS-administered
conservation program funding.
Sec. 636.14 Misrepresentation and scheme or device.
(a) A participant who is determined to have erroneously represented
any fact affecting a program determination made in accordance with this
part, will not be entitled to cost-share agreement payments and must
refund to NRCS all payments and pay liquidated damages, plus interest,
as determined by NRCS.
(b) A participant will refund to NRCS all payments, plus interest,
as determined by NRCS, with respect to all NRCS cost-share agreements to
which they are a party if they are determined to have knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose of
the program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination.
(c) Other NRCS cost-share agreements where this person is a
participant may be terminated.
Sec. 636.15 Offsets and assignments.
(a) Except as provided in paragraph (b) of this section, any payment
or portion thereof to any person or legal entity will be made without
regard to questions of title under State law and without regard to any
claim or lien against the land, or proceeds thereof, in favor of the
owner or any other creditor except agencies of the United States
Government. The regulations governing offsets and withholdings found at
7 CFR part 1403 of this title will be applicable to cost-share agreement
payments.
(b) WHIP participants may assign any payments in accordance with 7
CFR part 1404.
Sec. 636.16 Appeals.
(a) Any participant may obtain reconsideration and review of
determinations affecting participation in this program in accordance
with 7 CFR parts 11 and 614, except as provided in paragraph (b) of this
section.
(b) In accordance with the provisions of the Department of
Agriculture Reorganization Act of 1994, Public Law 103-354 (7 U.S.C.
6901), the following decisions are not appealable:
(1) Payment rates, payment limits, and cost-share percentages;
(2) The designation of approved fish and wildlife priority areas,
habitats, or activities;
(3) NRCS program funding decisions;
(4) Eligible conservation activities; and
(5) Other matters of general applicability.
(c) Before a participant may seek judicial review of any action
taken under this part, the participant must exhaust all administrative
appeal procedures set forth in paragraph (a) of this section.
Sec. 636.17 Compliance with regulatory measures.
(a) Participants who implement the WHIP plan of operations will be
responsible for obtaining the authorities, rights, easements, permits,
or other approvals necessary for the implementation, operation, and
maintenance of the conservation activities in keeping with applicable
laws and regulations. The requirement for the participant to obtain
necessary permits is included in the terms and conditions of the
contract appendix.
(b) Participants will be responsible for compliance with all laws
and for all
[[Page 571]]
effects or actions resulting from the participants' performance under
the cost-share agreement.
Sec. 636.18 Technical services provided by qualified personnel not
affiliated with USDA.
(a) NRCS may use the services of qualified TSPs in performing its
responsibilities for technical assistance.
(b) Participants may use technical services from qualified personnel
of other Federal, State, and local agencies, Indian tribes, or
individuals who are certified as TSPs by NRCS.
(c) Technical services provided by qualified personnel not
affiliated with USDA may include, but are not limited to, conservation
planning; conservation practice survey, layout, design, installation,
and certification; and related technical services as defined in 7 CFR
part 652.
(d) NRCS retains approval authority over certification of work done
by non-NRCS personnel for the purpose of approving WHIP payments.
Sec. 636.19 Access to operating unit.
As a condition of program participation, any authorized NRCS
representative will have the right to enter an agricultural operation or
tract for the purposes of determining eligibility and for ascertaining
the accuracy of any representations related to cost-share agreements and
performance. Access will include the right to provide technical
assistance; determine eligibility; inspect any work undertaken under the
cost-share agreements, including the WHIP plan of operations and O&M
agreement; and collect information necessary to evaluate the habitat
development performance specified in the cost-share agreements. The NRCS
representative will make a reasonable effort to contact the participant
prior to the exercising of this provision.
Sec. 636.20 Equitable relief.
(a) If a participant relied upon the advice or action of any
authorized NRCS representative and did not know, or have reason to know,
that the advice or action was improper or erroneous, NRCS may grant
relief in accordance with 7 CFR part 635. Where a participant believes
that detrimental reliance on the advice or action of a NRCS
representative resulted in an ineligibility or program violation, the
participant may request equitable relief under 7 CFR 635.3. The
financial or technical liability for any action by a participant that
was taken based on the advice of a NRCS certified non-USDA TSP is the
responsibility of the certified TSP and will not be assumed by NRCS when
NRCS authorizes payment.
(b) If during the term of a WHIP cost-share agreement a participant
has been found in violation of a provision of the cost-share agreement,
the O&M agreement, or any document incorporated by reference through
failure to fully comply with that provision, the participant may be
eligible for equitable relief under 7 CFR 635.4.
Sec. 636.21 Environmental services credits for conservation
improvements.
USDA recognizes that environmental benefits will be achieved by
implementing conservation activities funded through WHIP, and that
environmental credits may be gained as a result of implementing
activities compatible with the purposes of a WHIP cost-share agreement.
NRCS asserts no direct or indirect interest on any such credits.
However, NRCS retains the authority to ensure that program purposes are
met and the requirements for WHIP funded improvements are met and
maintained consistent with Sec. Sec. 636.8 and 636.9. Where activities
required under an environmental credit agreement may affect land covered
under a WHIP cost-share agreement, participants are highly encouraged to
request a compatibility assessment from NRCS prior to entering into such
agreements. The WHIP cost-share agreement may be modified, in accordance
with policies outlined in Sec. 636.10, provided the modification meets
WHIP purposes and is in compliance with this part.
[[Page 572]]
SUBCHAPTER E [RESERVED]
[[Page 573]]
SUBCHAPTER F_SUPPORT ACTIVITIES
PART 650_COMPLIANCE WITH NEPA
Subpart A_Procedures for NRCS-Assisted Programs
Sec.
650.1 Purpose.
650.2 Applicability.
650.3 Policy.
650.4 Definition of terms.
650.5 Environmental evaluation in planning.
650.6 Categorical exclusions.
650.7 When to prepare an EIS.
650.8 When to prepare an environmental assessment (EA).
650.9 NEPA and interagency planning.
650.10 Adoption of an EIS prepared by a cooperating agency.
650.11 Environmental documents.
650.12 NRCS decisionmaking.
650.13 Review and comment.
Subpart B_Related Environmental Concerns
650.20 Reviewing and commenting on EIS's prepared by other agencies.
650.21 Working relations with the U.S. Environmental Protection Agency
(EPA) and related State environmental agencies.
650.22 Rare, threatened, and endangered species of plants and animals.
650.23 Natural areas.
650.24 Scenic beauty (visual resource).
650.25 Flood-plain management.
Subpart A_Procedures for NRCS-Assisted Programs
Authority: 42 U.S.C. 4321 et seq.; Executive Order 11514 (Rev.); 7
CFR 2.62, unless otherwise noted.
Source: 44 FR 50579, Aug. 29, 1979, unless otherwise noted.
Sec. 650.1 Purpose.
(a) This rule prescribes procedures by which NRCS is to implement
the provisions of NEPA. The Natural Resources Conservation Service
recognizes NEPA as the national charter for protection, restoration, and
enhancement of the human environment. NEPA establishes policy, sets
goals (Section 101), and provides means (Section 102) for carrying out
this policy.
(b) The procedures included in this rule supplement CEQ's NEPA
regulations, 40 CFR parts 1500-1508. CEQ regulations that need no
additional elaboration to address NRCS-assisted actions are not repeated
in this rule, although the regulations are cited as references. The
procedures include some overlap with CEQ regulations. This is done to
highlight items of importance for NRCS. This does not supersede the
existing body of NEPA regulations.
(c) These procedures provide that--
(1) Environmental information is to be available to citizens before
decisions are made about actions that significantly affect the human
environment;
(2) NRCS-assisted actions are to be supported to the extent possible
by accurate scientific analyses that are technically acceptable to NRCS;
(3) NRCS-prepared NEPA documents are to be available for public
scrutiny; and
(4) Documents are to concentrate on the issues that are timely and
significant to the action in question rather than amassing needless
detail.
(d) Procedures for implementing NEPA are designed to ensure that
environmental consequences are considered in decisionmaking. They allow
NRCS to assist individuals and nonfederal public entities to take
actions that protect, enhance, and restore environmental quality.
(e) These procedures make possible the early identification of
actions that have significant effects on the human environment to avoid
delays in decisionmaking.
Sec. 650.2 Applicability.
This rule applies to all NRCS-assisted programs including the
uninstalled parts of approved projects that are not covered by
environmental documents prepared under previous rules for compliance
with NEPA. It is effective on the date of publication of the final rule.
NRCS is to consult with CEQ in the manner prescribed by 40 CFR 1506.11
if it is necessary to take emergency actions.
Sec. 650.3 Policy.
(a) NRCS mission. The NRCS mission is to provide assistance that
will allow
[[Page 574]]
use and management of ecological, cultural, natural, physical, social,
and economic resources by striving for a balance between use,
management, conservation, and preservation of the Nation's natural
resource base. The NRCS mission is reemphasized and expanded to carry
out the mandate of section 101(b) of NEPA, within other legislative
constraints, in all its programs of Federal assistance. NRCS will
continue to improve and coordinate its plans, functions, programs, and
recommendations on resource use so that Americans, as stewards of the
environment for succeeding generations--
(1) Can maintain safe, healthful, productive, and esthetically and
culturally pleasing surroundings that support diversity of individual
choices; and
(2) Are encouraged to attain the widest range of beneficial uses of
soil, water, and related resources without degradation to the
environment, risk to health or safety, or other undesirable and
unintended consequences.
(b) NRCS environmental policy. NRCS is to administer Federal
assistance within the following overall environmental policies:
(1) Provide assistance to Americans that will motivate them to
maintain equilibrium among their ecological, cultural, natural,
physical, social, and economic resources by striving for a balance
between conserving and preserving the Nation's natural resource base.
(2) Provide technical and financial assistance through a systematic
interdisciplinary approach to planning and decisionmaking to insure a
balance between the natural, physical, and social sciences.
(3) Consider environmental quality equal to economic, social, and
other factors in decisionmaking.
(4) Insure that plans satisfy identified needs and at the same time
minimize adverse effects of planned actions on the human environment
through interdisciplinary planning before providing technical and
financial assistance.
(5) Counsel with highly qualified and experienced specialists from
within and outside NRCS in many technical fields as needed.
(6) Encourage broad public participation in defining environmental
quality objectives and needs.
(7) Identify and make provisions for detailed survey, recovery,
protection, or preservation of unique cultural resources that otherwise
may be irrevocably lost or destroyed by NRCS-assisted project actions,
as required by Historic Preservation legislation and/or Executive Order.
(8) Encourage local sponsors to review with interested publics the
operation and maintenance programs of completed projects to insure that
environmental quality is not degraded.
(9) Advocate the retention of important farmlands and forestlands,
prime rangeland, wetlands, or other lands designated by State or local
governments. Whenever proposed conversions are caused or encouraged by
actions or programs of a Federal agency, licensed by or require approval
by a Federal agency, or are inconsistent with local or State government
plans, provisions are to be sought to insure that such lands are not
irreversibly converted to other uses unless other national interests
override the importance of preservation or otherwise outweigh the
environmental benefits derived from their protection. In addition, the
preservation of farmland in general provides the benefits of open space,
protection of scenery, wildlife habitat, and in some cases, recreation
opportunities and controls on urban sprawl.
(10) Advocate actions that reduce the risk of flood loss; minimize
effects of floods on human safety, health, and welfare; and restore and
preserve the natural and beneficial functions and values of flood
plains.
(11) Advocate and assist in the reclamation of abandoned surface-
mined lands and in planning for the extraction of coal and other
nonrenewable resources to facilitate restoration of the land to its
prior productivity as mining is completed.
(12) Advocate the protection of valuable wetlands, threatened and
endangered animal and plant species and their habitats, and designated
ecosystems.
(13) Advocate the conservation of natural and manmade scenic
resources to insure that NRCS-assisted programs
[[Page 575]]
or activities protect and enhance the visual quality of the landscape.
(14) Advocate and assist in actions to preserve and enhance the
quality of the Nation's waters.
[44 FR 50579, Aug. 20, 1979, as amended at 44 FR 54981, Sept. 24, 1979]
Sec. 650.4 Definition of terms.
Definitions of the following terms or phrases appear in 40 CFR part
1508, CEQ regulations. These terms are important in the understanding
and implementation of this rule. These definitions are not repeated in
the interest of reducing duplication:
Categorical exclusion. (40 CFR 1508.4)
Cooperating agency. (40 CFR 1508.5)
Cumulative impact. (40 CFR 1508.7)
Environmental impact statement (EIS). (40 CFR 1508.11)
Human environment. (40 CFR 1508.14)
Lead agency. (40 CFR 1508.16)
Major Federal action. (40 CFR 1508.18)
Mitigation. (40 CFR 1508.20)
NEPA process. (40 CFR 1508.21)
Scope. (40 CFR 1508.25)
Scoping. (40 CFR 1501.7)
Tiering. (40 CFR 1508.28)
(a) Channel realignment. Channel realignment includes the
construction of a new channel or a new alignment and may include the
clearing, snagging, widening, and/or deepening of the existing channel.
(Channel Modification Guidelines, 43 FR 8276).
(b) Environmental assessment (EA). (40 CFR 1508.9)
(1) An environmental assessment is a concise public document for
which a Federal agency is responsible that--
(i) Briefly provides sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or a
finding of no significant impact.
(ii) Aids an agency's compliance with the Act when no environmental
impact statement is necessary.
(iii) Facilitates preparation of an environmental impact statement
when one is necessary.
(2) An environmental assessment includes brief discussions of the
need for the proposal, alternatives as required by section of the
environmental impacts of the proposed action and alternatives, and a
list of agencies and persons consulted.
(c) Environmental evaluation. The environmental evaluation (EE)
(formerly referred to by NRCS as an environmental assessment) is the
part of planning that inventories and estimates the potential effects on
the human environment of alternative solutions to resource problems. A
wide range of environmental data together with social and economic
information is considered in determining whether a proposed action is a
major Federal action significantly affecting the human environment. The
environmental evaluation for a program, regulation, or individual action
is used to determine the need for an environmental assessment or an
environmental impact statement. It also aids in the consideration of
alternatives and in the identification of available resources.
(d) Federally-assisted actions. These actions are planned and
carried out by individuals, groups, or local units of government largely
on nonfederal land with technical and/or financial assistance provided
by NRCS.
(e) Interdisciplinary planning. NRCS uses an interdisciplinary
environmental evaluation and planning approach in which specialists and
groups having different technical expertise act as a team to jointly
evaluate existing and future environmental quality. The
interdisciplinary group considers structure and function of natural
resource systems, complexity of problems, and the economic, social, and
environmental effects of alternative actions. Public participation is an
essential part of effective interdisciplinary planning. Even if an NRCS
employee provides direct assistance to an individual land user, the
basic data used is a result of interdisciplinary development of guide
and planning criteria.
(f) Nonproject actions. Nonproject actions consist of technical and/
or financial assistance provided to an individual, group, or local unit
of government by NRCS primarily through a cooperative agreement with a
local conservation district, such as land treatment recommended in the
Conservation Operations, Great Plains Conservation, Rural Abandoned
Mine, and Rural Clean Water Programs. These actions may include
consultations, advice, engineering, and other technical
[[Page 576]]
assistance that land users usually cannot accomplish by themselves.
Nonproject technical and/or financial assistance may result in the land
user installing field terraces, waterways, field leveling, onfarm
drainage systems, farm ponds, pasture management, conservation tillage,
critical area stablization and other conservation practices.
(g) Notice of intent (NOI) (40 CFR 1508.22). A notice of intent is a
brief statement inviting public reaction to the decision by the
responsible Federal official to prepare an EIS for a major Federal
action. The notice of intent is to be published in the Federal Register,
circulated to interested agencies, groups, individuals, and published in
one or more newspapers serving the area of the proposed action.
(h) Project actions. A project action is a formally planned
undertaking that is carried out within a specified area by sponsors for
the benefit of the general public. Project sponsors are units of
government having the legal authority and resources to install, operate,
and/or maintain works of improvement.
(i) Record of Decision. (ROD) (40 CFR 1505.2). A record of decision
is a concise written rationale by the RFO regarding implementation of a
proposed action requiring an environmental impact statement. This was
previously defined by NRCS as a Statement of Findings (SOF).
(j) Responsible Federal official (RFO). The NRCS Administrator is
the responsible Federal official (RFO) for compliance with NEPA
regarding proposed legislation, programs, legislative reports,
regulations, and program EIS's. NRCS state conservationists (STC's) are
the RFO's for compliance with the provisions of NEPA in other NRCS-
assisted actions.
(k) Significantly. (40 CFR 1508.27) ``Significantly'' as used in
NEPA requires considerations of both context and intensity:
(1) Context. This means that the significance of an action must be
analyzed in several contexts such as society as a whole (human,
national), the affected region, the affected interests, and the
locality. Significance varies with the setting of the proposed action.
For instance, for a site-specific action, significance usually depends
on the effects in the locale rather than in the world as a whole. Both
short- and long-term effects are relevant.
(2) Intensity. This refers to the severity of impact. Responsible
officials must bear in mind that more than one agency may make decisions
about partial aspects of a major action.
The following should be considered in evaluating intensity:
(i) Impacts that may be both beneficial and adverse. A significant
effect may exist even if the Federal agency believes that on balance the
effect will be beneficial.
(ii) The degree to which the proposed action affects public health
or safety.
(iii) Unique characteristics of the geographic area such as
proximity to historic or cultural resources, park lands, prime
farmlands, wetlands, wild and scenic rivers, or ecologically critical
areas.
(iv) The degree to which the effects on the quality of the human
environment are likely to be highly controversial.
(v) The degree to which the possible effects on the human
environment are highly uncertain or involve unique or unknown risks.
(vi) The degree to which the action may establish a precedent for
future actions with significant effects or represents a decision in
principle about a future consideration.
(vii) Whether the action is related to other actions with
individually insignificant but cumulatively significant impacts.
Significance exists if it is reasonable to anticipate a cumulatively
significant impact on the environment. Significance cannot be avoided by
terming an action temporary or by breaking it down into small component
parts.
(viii) The degree to which the action may adversely affect
districts, sites, highways, structures, or objects listed in or eligible
for listing in the National Register of Historic Places or may cause
loss or destruction of significant scientific, cultural, or historical
resources.
(ix) The degree to which the action may adversely affect an
endangered or threatened species or its habitat that has been determined
to be critical
[[Page 577]]
under the Endangered Species Act of 1973 as amended.
(x) Whether the action threatens a violation of Federal, State, or
local law or requirements imposed for the protection of the environment.
(l) Finding of no significant impact (FNSI). (40 CFR 1508.13)
``Finding of No Significant Impact'' means a document by a Federal
agency briefly presenting the reasons why an action not otherwise
excluded (Sec. 1508.4) will not have a significant effect on the human
environment, and an environmental impact statement therefore will not be
prepared. It shall include the environmental assessment or a summary of
it and shall note any other environmental documents related to it
(Sec. 1501.7(a)(5)). If the assessment is included, the finding need not
repeat any of the discussion in the assessment but may incorporate it by
reference.
[44 FR 50579, Aug. 29, 1979, as amended at 44 FR 54981, Sept. 24, 1979]
Sec. 650.5 Environmental evaluation in planning.
(a) General. Environmental evaluation (EE) integrates environmental
concerns throughout the planning, installation, and operation of NRCS-
assisted projects. The EE applies to all assistance provided by NRCS,
but planning intensity, public involvement, and documentation of actions
vary according to the scope of the action. NRCS begins consideration of
environmental concerns when information gathered during the
environmental evaluation is used:
(1) To identify environmental concerns that may be affected, gather
baseline data, and predict effects of alternative courses of actions;
(2) To provide data to applicants for use in establishing objectives
commensurate with the scope and complexity of the proposed action;
(3) To assist in the development of alternative courses of action;
(40 CFR 1502.14). In NRCS-assisted project actions, nonstructural, water
conservation, and other alternatives that are in keeping with the Water
Resources Council's Principles and Standards are considered, if
appropriate.
(4) To perform other related investigations and analyses as needed,
including economic evaluation, engineering investigations, etc.
(5) To assist in the development of detailed plans for
implementation and operation and maintenance.
(b) Procedures. NRCS's Guide for Environmental Assessment issued in
March 1977 and published in the Federal Register on August 8, 1977,
provides guidance for conducting an environmental evaluation. (42 FR
40123-40167).
(c) Decision points. Figure 1 illustrates the decision points for
compliance with NEPA in NRCS decisionmaking.
[[Page 578]]
[GRAPHIC] [TIFF OMITTED] TR25JN08.003
[44 FR 50579, Aug. 29, 1979, as amended at 73 FR 35884, June 25, 2008]
Sec. 650.6 Categorical exclusions.
(a) Some NRCS programs or parts of programs do not normally create
significant individual or cumulative impacts on the human environment.
Therefore, an EA or EIS is not needed. These are data gathering and
interpretation programs and include:
(1) Soil Survey--7 CFR part 611;
(2) Snow Survey and Water Supply Forecasts--7 CFR part 612;
(3) Plant Materials for Conservation--7 CFR part 613;
[[Page 579]]
(4) Inventory and Monitoring--Catalog of Federal Domestic
Assistance--10.908; and
(5) River Basin Studies under section 6 of Pub. L. 83-566 as
amended--7 CFR part 621.
(b) When any new action is planned under the programs identified in
paragraph (a) of this section, the EE performed by the RFO is to
identify extraordinary circumstances that might lead to significant
individual or cumulative impacts. Actions that have potential for
significant impacts on the human environment are not categorically
excluded.
(c)(1) The NRCS restoration and conservation actions and activities
identified in paragraph (d) of this section are eligible for categorical
exclusion and require the RFO to document a determination that a
categorical exclusion applies. Agency personnel will use the EE review
process detailed in Sec. 650.5 to evaluate proposed activities for
extraordinary circumstances and document the determination that the
categorical exclusion applies. The extraordinary circumstances address
the significance criteria provided in 40 CFR 1508.27.
(2) The extraordinary circumstances identified in paragraph (c)(1)
of this section include:
(i) The proposed action cannot cause significant effects on public
health or safety.
(ii) The proposed action cannot significantly affect unique
characteristics of the geographic area such as proximity to historic
properties or cultural resources, park lands, prime farmlands,
floodplains, wetlands, wild and scenic rivers, or ecologically critical
areas.
(iii) The effects of the proposed action on the quality of the human
environment cannot be highly controversial.
(iv) The proposed action cannot have highly uncertain effects,
including potential unique or unknown risks on the human environment.
(v) The proposed action cannot include activities or conservation
practices that establish a potential precedent for future actions with
significant impacts.
(vi) The proposed action is known to have or reasonably cannot be
expected to have potentially significant environment impacts to the
quality of the human environment either individually or cumulatively
over time.
(vii) The proposed action cannot cause or promote the introduction
of invasive species or have a significant adverse effect on any of the
following special environmental concerns not previously identified in
paragraph (c)(2)(B) of this section, such as: endangered and threatened
species, environmental justice communities as defined in Executive Order
12898, wetlands, other waters of the United States, wild and scenic
rivers, air quality, migratory birds, and bald and golden eagles.
(viii) The proposed action will not violate Federal or other
applicable law and requirements for the protection of the environment.
(3) In the absence of any extraordinary circumstances as determined
through NRCS' EE review process, the activities will be able to proceed
without preparation of an EA or EIS. Where extraordinary circumstances
are determined to exist, the categorical exclusion will not apply, and
the appropriate documentation for compliance with NEPA will be prepared.
Prior to determining that a proposed action is categorically excluded
under paragraph (d) of this section, the proposed action must:
(i) Be designed to mitigate soil erosion, sedimentation, and
downstream flooding;
(ii) Require disturbed areas to be vegetated with adapted species
that are neither invasive nor noxious;
(iii) Be based on current Federal principals of natural stream
dynamics and processes, such as those presented in the Federal
Interagency Stream Corridor Restoration Working Group document, ``Stream
Corridor Restoration, Principles, Processes, and Practices;''
(iv) Incorporate the applicable NRCS conservation practice standards
as found in the Field Office Technical Guide;
(v) Not require substantial dredging, excavation, or placement of
fill; and
(vi) Not involve a significant risk of exposure to toxic or
hazardous substances.
(d) The use of the following categorical exclusions for a proposed
action
[[Page 580]]
does not waive NRCS compliance with any applicable legal requirement
including, but not limited to, the National Historical Preservation Act
or the Endangered Species Act. The following categorical exclusions are
available for application to proposed actions provided the conditions
described in paragraph (c) of this section are met:
(1) Planting appropriate herbaceous and woody vegetation, which does
not include noxious weeds or invasive plants, on disturbed sites to
restore and maintain the sites ecological functions and services;
(2) Removing dikes and associated appurtenances (such as culverts,
pipes, valves, gates, and fencing) to allow waters to access floodplains
to the extent that existed prior to the installation of such dikes and
associated appurtenances;
(3) Plugging and filling excavated drainage ditches to allow
hydrologic conditions to return to pre-drainage conditions to the extent
practicable;
(4) Replacing and repairing existing culverts, grade stabilization,
and water control structures and other small structures that were
damaged by natural disasters where there is no new depth required and
only minimal dredging, excavation, or placement of fill is required;
(5) Restoring the natural topographic features of agricultural
fields that were altered by farming and ranching activities for the
purpose of restoring ecological processes;
(6) Removing or relocating residential, commercial, and other public
and private buildings and associated structures constructed in the 100-
year floodplain or within the breach inundation area of an existing dam
or other flood control structure in order to restore natural hydrologic
conditions of inundation or saturation, vegetation, or reduce hazards
posed to public safety;
(7) Removing storm debris and sediment following a natural disaster
where there is a continuing and eminent threat to public health or
safety, property, and natural and cultural resources and removal is
necessary to restore lands to pre-disaster conditions to the extent
practicable. Excavation will not exceed the pre-disaster condition;
(8) Stabilizing stream banks and associated structures to reduce
erosion through bioengineering techniques following a natural disaster
to restore pre-disaster conditions to the extent practicable, e.g.,
utilization of living and nonliving plant materials in combination with
natural and synthetic support materials, such as rocks, rip-rap, geo-
textiles, for slope stabilization, erosion reduction, and vegetative
establishment and establishment of appropriate plant communities (bank
shaping and planting, brush mattresses, log, root wad, and boulder
stabilization methods);
(9) Repairing or maintenance of existing small structures or
improvements (including structures and improvements utilized to restore
disturbed or altered wetland, riparian, in stream, or native habitat
conditions). Examples of such activities include the repair or
stabilization of existing stream crossings for livestock or human
passage, levees, culverts, berms, dikes, and associated appurtenances;
(10) Constructing small structures or improvements for the
restoration of wetland, riparian, in stream, or native habitats.
Examples of activities include installation of fences and construction
of small berms, dikes, and associated water control structures;
(11) Restoring an ecosystem, fish and wildlife habitat, biotic
community, or population of living resources to a determinable pre-
impact condition;
(12) Repairing or maintenance of existing constructed fish
passageways, such as fish ladders or spawning areas impacted by natural
disasters or human alteration;
(13) Repairing, maintaining, or installing fish screens to existing
structures;
(14) Repairing or maintaining principal spillways and appurtenances
associated with existing serviceable dams, originally constructed to
NRCS standards, in order to meet current safety standards. Work will be
confined to the existing footprint of the dam, and no major change in
reservoir or downstream operations will result;
(15) Repairing or improving (deepening/widening/armoring) existing
auxiliary/emergency spillways associated with dams, originally
constructed to
[[Page 581]]
NRCS standards, in order to meet current safety standards. Work will be
confined to the dam or abutment areas, and no major change in reservoir
or downstream operation will result;
(16) Repairing embankment slope failures on structures, originally
built to NRCS standards, where the work is confined to the embankment or
abutment areas;
(17) Increasing the freeboard (which is the height from the
auxiliary (emergency) spillway crest to the top of embankment) of an
existing dam or dike, originally built to NRCS standards, by raising the
top elevation in order to meet current safety and performance standards.
The purpose of the safety standard and associated work is to ensure that
during extreme rainfall events, flows are confined to the auxiliary/
emergency spillway so that the existing structure is not overtopped
which may result in a catastrophic failure. Elevating the top of the dam
will not result in an increase to lake or stream levels. Work will be
confined to the existing dam and abutment areas, and no major change in
reservoir operations will result. Examples of work may include the
addition of fill material such as earth or gravel or placement of
parapet walls;
(18) Modifying existing residential, commercial, and other public
and private buildings to prevent flood damages, such as elevating
structures or sealing basements to comply with current State safety
standards and Federal performance standards;
(19) Undertaking minor agricultural practices to maintain and
restore ecological conditions in floodplains after a natural disaster or
on lands impacted by human alteration. Examples of these practices
include: mowing, haying, grazing, fencing, off-stream watering
facilities, and invasive species control which are undertaken when fish
and wildlife are not breeding, nesting, rearing young, or during other
sensitive timeframes;
(20) Implementing soil control measures on existing agricultural
lands, such as grade stabilization structures (pipe drops), sediment
basins, terraces, grassed waterways, filter strips, riparian forest
buffer, and critical area planting; and
(21) Implementing water conservation activities on existing
agricultural lands, such as minor irrigation land leveling, irrigation
water conveyance (pipelines), irrigation water control structures, and
various management practices.
[44 FR 50579, Aug. 29, 1979, as amended at 74 FR 33322, July 13, 2009;
75 FR 6556, Feb. 10, 2010]
Sec. 650.7 When to prepare an EIS.
The following are categories of NRCS action used to determine
whether or not an EIS is to be prepared.
(a) An EIS is required for:
(1) Projects that include stream channel realignment or work to
modify channel capacity by deepening or widening where significant
aquatic or wildlife habitat exists. The EE will determine if the channel
supports significant aquatic or wildlife habitat;
(2) Projects requiring Congressional action;
(3) Broad Federal assistance programs administered by NRCS when the
environmental evaluation indicates there may be significant cumulative
impacts on the human environment (Sec. 650.7(e)); and
(4) Other major Federal actions that are determined after
environmental evaluation to affect significantly the quality of the
human environment (Sec. 650.7(b)). If it is difficult to determine
whether there is a significant impact on the human environment, it may
be necessary to complete the EE and prepare an EA in order to decide if
an EIS is required.
(b) The RFO is to determine the need for an EIS for each action,
program, or regulation. An environmental evaluation, using a systematic
interdisciplinary analysis and evaluation of data and information
responding to the five provisions of Section 102(2)(C) of NEPA, will
assist the RFO in deciding if the action requires the preparation of an
EIS. In analyzing and evaluating environmental concerns, the RFO will
answer the following questions:
(1) Environmental impact. Will the proposed action significantly
affect the quality of the human environment (40 CFR 1508.14)? For
example, will it significantly alter or destroy valuable
[[Page 582]]
wetlands, important farmlands, cultural resources, or threatened and
endangered species? Will it affect social values, water quality, fish
and wildlife habitats, or wilderness and scenic areas?
(2) Adverse environmental effects that cannot be avoided. What are
the important environmental amenities that would be lost if the proposed
action were implemented?
(3) Alternatives. Are there alternatives that would achieve the
planning objectives but avoid adverse environmental effects?
(4) Short-term uses versus long-term productivity. Will the proposed
actions, in combination with other actions, sacrifice the enhancement of
significant long-term productivity as a tradeoff for short-term uses?
(5) Commitment of resources. Will the proposed action irreversibly
and irretrievably commit the use of resources such as important
farmlands, wetlands, and fish and wildlife habitat?
(c) Criteria for determining the need for a program EIS:
(1) A program EIS is required if the environmental evaluation
reveals that actions carried out under the program have individually
insignificant but cumulatively significant environmental impacts.
(2) A project EIS, in lieu of a program EIS, is required if the
environmental evaluation reveals that actions carried out under the
program will have both individually and cumulatively significant
environmental impacts. (7 CFR Parts 620 through 623 and 640 through
643).
(d) The RFO, through the process of tiering, is to determine if a
site-specific EA or EIS is required for an individually significant
action that is included in a program EIS.
Sec. 650.8 When to prepare an environmental assessment (EA).
An environmental assessment (EA) is to be prepared for:
(a) Land and water resource projects that are not included in
Sec. 650.7(a) (1) through (4) for which State and local units of
government receive Federal technical and financial assistance from NRCS
(7 CFR parts 620 through 623; and 640 through 643); and
(b) Other actions that the EE reveals may be a major Federal action
significantly affecting the quality of the human environment.
(c) Criteria for determining the need for a program EA:
(1) A program EA is to be prepared when NRCS has determined, based
on the environmental evaluation, that a program EIS is not required and
the program and actions to implement the program are not categorically
excluded; and
(2) A program EA may also be prepared to aid in NRCS decision-making
and to aid in compliance with NEPA.
(d) The RFO, through the process of tiering, is to determine if a
site-specific EA or EIS is required for an action that is included in a
program EA or EIS.
[44 FR 50579, Aug. 29, 1979, as amended at 73 FR 35886, June 25, 2008]
Sec. 650.9 NEPA and interagency planning.
(a) Lead agency. (1) NRCS is to be the lead agency for actions under
programs it administers. If the actions affect more than one State, the
NRCS Administrator is to designate one NRCS state conservationist as the
RFO.
(2) NRCS normally takes the role of lead agency in actions that
share program responsibilities among USDA agencies if NRCS provides the
majority of funds for the actions. If the lead agency role is in
question, the role of NRCS and other USDA agencies is to be determined
by the USDA Environmental Coordinator, Office of Environmental Quality
Activities.
(3) If NRCS and Federal agencies outside USDA cannot agree on which
will be the lead agency and which will be the cooperating agencies, the
procedures in 40 CFR 1501.5(e) are to be followed.
(4) NRCS, as lead agency, is to coordinate the participation of all
concerned agencies in developing the EIS according to the provisions of
40 CFR 1501.6(a).
(b) Cooperating agencies. (1) NRCS is to request, as appropriate,
the assistance of cooperating agencies in preparing the environmental
evaluation. This assistance will broaden the expertise in the planning
and help to avoid
[[Page 583]]
future conflict. NRCS is to request assistance in determining the scope
of issues to be addressed and identifying the significant issues related
to a proposed action from Federal agencies that have jurisdiction by law
or special expertise.
(2) NRCS is to act as a cooperating agency if requested. NRCS may
request to be designated as a cooperating agency if proposed actions may
affect areas of NRCS expertise, such as prime farmlands, soils, erosion
control, and agricultural sources of nonpoint pollution. NRCS, as a
cooperating agency, is to comply with the requirements of 40 CFR
1501.6(b) to the extent possible depending on funds, personnel, and
priority. If insufficient funds or other resources prevent NRCS from
participating fully as a cooperating agency, NRCS is to request the lead
agency to provide funds or other resources which will allow full
participation.
(c) Scoping. See 40 CFR 1501.7 for a definition of scoping.
(1) NRCS is to use scoping to identify and categorize significant
environmental issues in its environmental evaluation. Formalized scoping
is used to insure that an analytical EIS can be prepared that will
reduce paperwork and avoid delay. Scoping allows NRCS to obtain the
assistance and consultation of affected agencies that have special
expertise or legal jurisdiction in the proposed action. If early
environmental evaluation identifies a need for an EIS, NRCS is to
publish a notice of intent (NOI) to prepare an EIS. The NOI is to
request the assistance of all interested agencies, groups, and persons
in determining the scope of the evaluation of the proposed action.
(2) Normally a scoping meeting is held and Federal, State, or local
agencies that have special expertise or legal jurisdiction in resource
values that may be significantly affected are requested to participate.
The scoping meeting will identify agencies that may become cooperating
agencies.
(3) In the scoping meeting, the range of actions, alternatives, and
impacts to be evaluated and included in the EIS as defined in (40 CFR
1508.25) are to be determined. Tiering (40 CFR 1508.28) may be used to
define the relation of the proposed statement to other statements.
(4) Periodic meetings of the cooperating agencies are to be held at
important decisionmaking points to provide timely interagency,
interdisciplinary participation.
(5) Scoping is to include the items listed in 40 CFR 1501.7(a) and
may also include any of the activities in 40 CFR 1501.7(b). Appropriate,
timely requests and notification are to be made to promote public
participation in scoping in accordance with paragraph (d) of this
section.
(6) The RFO through the scoping process will set time and page
limits as prescribed in 40 CFR 1501.8. Time and page limits are
established by NRCS in consultation with sponsors and others according
to the projected availability of resources. The RFO is to make the
applicant aware of the possible need for revising time and page limits
because of changes in resources.
(d) Public participation--(1) General. Public participation
activities begin early in the EE and are to be appropriate to the
proposed action. For example, extensive public participation activities
are required in the implementation of new programs and project actions,
but limited public participation is appropriate for nonproject technical
and financial assistance programs on nonfederal land.
(2) Early public involvement. The public is to be invited and
encouraged to participate in the early stages of planning, including the
consideration of the potential effects of NRCS-assisted actions on
significant environmental resources such as wetlands, flood plains,
cultural values, endangered species, important farmland.
(3) Project activities. The following are general considerations for
providing opportunities for public participation:
(i) Identification of interested public. The interested public
consisting of but not limited to individuals, groups, organizations, and
government agencies are to be identified, sought out, and encouraged to
participate in and contribute to interdisciplinary planning and
environmental evaluation.
(ii) Public notices. (40 CFR 1506.6) If the effects of an action are
primarily of local concern, notice of each public
[[Page 584]]
meeting or hearing should be: Submitted to State and areawide
clearinghouses pursuant to OMB Circular A-95 (revised); submitted to
Indian tribes if they are interested; published in local newspapers;
distributed through other local media; provided to potentially
interested community organizations including small business
associations; published in newsletters that may be expected to reach
potentially interested persons; mailed directly to owners and occupants
of nearby or affected property; and posted onsite and offsite in the
area where the action is to be located.
(iii) State statutes. If official action by the local units of
government cooperating in the proposal is governed by State statute, the
public notice and mailing requirement of the statute is to be followed.
If the effects of an action are of national concern, notice is to be
published in the Federal Register and mailed to national organizations
reasonably expected to be interested.
(iv) Public meetings. The RFO, after consultation with the sponsors,
is to determine when public meetings or hearings are to be held. Public
meetings may be in the form of a workshop, tour, open house, etc. Public
involvement will include early discussion of flood-plain management and
protection of wetlands, where appropriate. Environmental information is
to be presented and discussed along with other appropriate information.
To the extent practical, pertinent information should be made available
before the meetings.
(v) Documentation. The RFO is to maintain a reviewable record of
public participation in the environmental evaluation process.
(4) Nonproject activities. Public participation in the planning and
application of conservation practices with individual land users is
accomplished primarily through conservation districts. These districts
are governed by boards of supervisors directors, commissioners, etc.,
who are elected and/or appointed to insure that soil, water, related
resources, and environmental qualities in the district are maintained
and improved. The public is to be encouraged to participate in the
development of long-range district programs and district annual plans.
The district keeps the public informed through public meetings, district
newsletters, news stories, radio and television programs, and annual
reports.
Sec. 650.10 Adoption of an EIS prepared by a cooperating agency.
(a) If NRCS adopts an EIS prepared by another Federal or State
agency, the RFO is to review the document to insure that it meets the
requirements of the CEQ regulations and NRCS-NEPA procedures.
(b) If the actions included in the EIS are substantially the same as
those proposed by NRCS, the RFO is to recirculate the EIS as ``final.''
The final EIS is to include an appropriate explanation of the action. If
these actions are not substantially the same, the EIS is to be
supplemented and recirculated as a draft EIS. The RFO is to inform the
preparing agency of the proposed action.
(c) If the adopted EIS is not final, if it is the subject of a
referral under 40 CFR part 1504, or if the statement's adequacy is in
litigation, the RFO is to include an appropriate explanation in the EIS.
(d) The RFO is to take appropriate action to inform the public and
appropriate agencies of the proposed action.
Sec. 650.11 Environmental documents.
(a) NRCS is to use the following documents in compliance with NEPA
(see Sec. 650.4):
(1) Environmental assessments (EA)
(2) Environmental impact statements (EIS)
(3) Notice of intent (NOI)
(4) Finding of no significant impact (FNSI)
(5) Record of decision (ROD)
(b) The format and content of each document is to be appropriate to
the action being considered and consistent with the CEQ regulations.
(1) To reduce duplication, NRCS may combine environmental documents
with other planning documents of the same proposal, as appropriate. For
example, NRCS, in consultation with CEQ and the office of the Secretary
of Agriculture, has determined that each EIS is to satisfy the
requirements for a regulatory impact analysis as required
[[Page 585]]
by Executive Order 12044. This may necessitate modifying the recommended
CEQ format. If documents are combined, the RFO is to include the
information and sections required by the CEQ regulations (40 CFR
1502.10). The environmental impact statement should indicate those
considerations, including factors not related to environmental quality,
that are likely to be relevant to a decision.
(2) The RFO is to establish the format and content of each document
giving full consideration to the guidance and requirements of the CEQ
regulations. The NRCS technical service center director is to provide
guidance and concurrence on the format and content if the NRCS state
conservationist is the RFO. The results of scoping are to determine the
content of the EA or the EIS and the amount of detail needed to analyze
the impacts.
(3) In addition to the minimum requirements of the CEQ regulations
(40 CFR 1502.10), environmental assessments and environmental impact
statements are to include--
(i) A brief description of public participation activities of
agencies, groups, and individuals during the environmental evaluation;
(ii) A description of the hazard potential of each alternative,
including an explanation of the rationale for dam classification and the
risk of dam failure from overtopping for other causes;
(iii) Information identifying any approved regional plans for water
resource management in the study area (40 CFR 1506.2(d)) and a statement
on whether the proposed project is consistent with such plans;
(iv) All Federal permits, licenses, and other entitlements that must
be obtained (40 CFR 1502.25(b)); and
(v) A brief description of major environmental problems, conflicts,
and disagreements among groups and agencies and how they were resolved.
Unresolved conflicts and the NRCS's proposal for resolving the
disagreements before the project is implemented are to be summarized.
(4) Letters of comment and responses. (40 CFR 1503.4, 1502.9(b))
Letters of comment that were received and the responses to these
comments are to appended to the final EIS. Opposing views and other
substantive comments that were not adequately discussed in the draft EIS
are to be incorporated in the final EIS.
(5) Appendix. The RFO may use an appendix to an EA or EIS. If an
appendix is too voluminous to be circulated with the EIS, the RFO is to
make it available on request. If an appendix is included it is to--
(i) Meet the requirements of 40 CFR 1502.18;
(ii) Identify any methodologies used (40 CFR 1502.24) and make
explicit reference to other sources relied on for conclusions; and
(iii) Briefly describe the relationship between the benefit-cost
analysis and any analyses of unquantified environmental impacts, values,
and amenities. ``For purposes of complying with the Act, the weighing of
the merits or drawbacks of the various alternatives need not be
displayed in a monetary cost benefit and should not be when these are
important qualitative considerations.'' (40 CFR 1502.23).
Sec. 650.12 NRCS decisionmaking.
(a) General. The purpose of these procedures is to insure that
environmental information is provided to decision makers in a timely
manner. The NEPA process is a part of NRCS decisionmaking. The RFO is to
insure that the policies and purposes of NEPA and CEQ regulations are
complied with in NRCS decisionmaking by:
(1) Including in all decision documents and supporting environmental
documents a discussion of all alternatives considered in the decision.
Alternatives to be considered in reaching a decision will be available
to the public.
(2) Submitting relevant environmental documents, comments, and
responses with other decision documents through the review process.
(3) Including in the record of formal rulemaking or adjudicatory
proceedings relevent environmental documents, comments and responses.
(4) Providing for pre- and post-project monitoring (40 CFR
1505.2(c), 1505.3) and evaluation in representative projects to insure
that planning and evaluation procedures are performed according to sound
criteria.
[[Page 586]]
(b) Decision points in NRCS-assisted projects. NRCS administers
programs that may have a significant effect on the human environment.
Program procedures incorporate provisions for compliance with NEPA and
for providing environmental information to the public, other agencies,
and decision makers in a timely manner. NRCS provides technical and
financial assistance for projects under the Watershed Protection and
Flood Prevention and the Resource Conservation and Development (RC&D)
programs. These usually require the preparation of project EA's or
EIS's. The major decisionmaking points and their relation to NEPA
compliance are as follows:
(1) For Watershed Protection and Flood Prevention projects:
(i) Application for assistance by the sponsoring local organization
(SLO).
(ii) A preauthorization report identifying goals, alternatives, and
effects of alternatives (including environmental impacts) prepared by
the RFO and submitted to the applicant for decision. It is circulated to
local, State, and Federal agencies and public comment is solicited. A
decision is made to stop planning assistance or to develop a watershed
plan.
(iii) Granting of planning authorization by the Administrator. The
RFO must provide an evaluation of the potential environmental impacts to
obtain the authorization.
(iv) A watershed agreement between the SLO and NRCS. The agreement
is based on a completed watershed plan and associated environmental
documents, which have been adequately reviewed within NRCS.
(v) A project agreement between the SLO and the RFO executed after
the NEPA process is complete and the watershed plan has been approved
and final plans and specifications have been developed.
(2) For RC&D measure plans:
(i) A request for assistance (measure proposal) is reviewed by the
RC&D council to insure that the proposal is in accordance with the RC&D
area plan. The proposal is then referred to NRCS.
(ii) A preliminary report is prepared by the RFO to identify goals,
alternatives, and effects (including environmental impacts). The report
is submitted to the sponsor for review. The sponsor may then apply to
NRCS for planning assistance for measures considered in the preliminary
report.
(iii) An authorization for planning assistance is granted by the
RFO.
(iv) The RC&D measure plan is signed by the applicant and the RFO
after the preparation and review of the measure plan and environmental
documents.
(v) A project agreement is signed between the applicant and the RFO
after the NEPA process is complete, the measure plan has been approved,
and final plans and specifications have been prepared.
(c) Environmental Impact Statement (EIS) and Record of decision The
RFO is to prepare a concise record of decision (ROD) for actions
requiring an EIS. The record of decision is to be prepared and signed by
the RFO following the 30-day administrative action period initiated by
the EPA's publication of the notice of availability of the final EIS in
the Federal Register. It is to serve as the public record of decision as
described in 40 CFR 1505.2 of the CEQ regulations. The ROD is to be
distributed to all who provided substantive comments on the draft EIS
and all others who request it. A notice of availability of the ROD will
be published in the Federal Register and local newspaper(s) serving the
project area. The RFO may choose to publish the entire ROD.
(d) Environmental Assessments and Finding of No Significant Impact
(FNSI)--(1) EA's. If the EA indicates that the proposed action is not a
major Federal action significantly affecting the quality of the human
environment, the RFO is to prepare a finding of no significant impact
(FNSI).
(2) Availability of the FNSI (40 CFR 1501.4(e)(2)). In accordance
with CEQ regulations at 40 CFR 1501.4(e)(2), NRCS shall make the EA/FNSI
available for public review for thirty days in the following instances:
The proposed action is, or closely similar to, one which normally
requires the preparation of an EIS as defined by NRCS NEPA implementing
regulations at Sec. 650.7, or the nature of the action is one without
precedent. When availability for public review for thirty days
[[Page 587]]
is not required, NRCS will involve the public in the preparation of the
EA/FONSI and make the EA/FONSI available for public review in accordance
with CEQ regulations at 40 CFR 1501.4(b) and 1506.6.
(e) Changes in actions. When it appears that a project or other
action needs to be changed, the RFO will perform an environmental
evaluation of the authorized action to determine whether a supplemental
NEPA analysis is necessary before making a change.
[44 FR 50579, Aug. 29, 1979, as amended at 73 FR 35886, June 25, 2008]
Sec. 650.13 Review and comment.
In addition to the requirements of 40 CFR 1503, 1506.10 and 1506.11,
NRCS will take the following steps in distributing EIS's for review and
comment:
(a) Draft EIS's. Five copies of the draft EIS are to be filed by the
RFO with the Office of Environmental Review, A-104, Environmental
Protection Agency (EPA), Washington, D.C. At the same time, the RFO is
to send copies of the draft EIS to the following:
(1) Other Federal agencies. The regional office of EPA and other
agencies that have jurisdiction by law or special expertise with respect
to any environmental effect, other Federal agencies (including
appropriate field and regional offices), and affected Indian tribes.
(2) State and local agencies. OMB Circular No. A-95 (Revised),
through its system of State and areawide clearinghouses, provides a
means for obtaining the views of State and local environmental agencies
that can assist in the preparation and review of EIS's
(3) Organizations, groups, and individuals. A copy of the draft EIS
is to be sent to the appropriate official of each organization or group
and each individual of the interested public (Sec. 650.9(d)(3)(i)) and
to others as requested. A charge may be made for multiple copy requests.
(b) Time period for comment. The time period for review ends 45 days
after the date EPA publishes the notice of public availability of the
draft in the Federal Register. A 15-day-extension of time for review and
comment is to be considered by the RFO when such requests are submitted
in writing. If neither comments nor a request for an extension is
received at the end of the 45-day period, it is to be presumed that the
agency or party from whom comments were requested has no comments to
make.
(c) News releases. In addition to the notice of availability
published in the Federal Register by EPA, the RFO is to announce the
availability of the draft EIS in one or more newspapers serving the
area.
(d) Revising a draft EIS. If significant changes in the proposed
action are made as a result of comments on the draft EIS, a revised
draft EIS may be necessary. The revised draft EIS is to be recirculated
for comment in the same manner as a draft EIS.
(e) Final EIS's. After the review period for the draft EIS, the RFO
is to prepare a final EIS, making adjustments where necessary by taking
into consideration and responding to significant comments and opposing
viewpoints received on the draft EIS. The following steps are to be
taken in filing and distributing the final EIS:
(1) Letters of comment are to be appended to the final EIS. If
numerous repetitive responses are received, summaries of the repetitive
comments and a list of the groups or individuals who commented may be
appended in lieu of the actual letter.
(2) The RFO is to send five copies of the final EIS to EPA's Office
of Environmental Review, and a copy of the final EIS to each State and
Federal agency, organization, group, and individual who commented on the
draft EIS. Single copy requests for copies of the final EIS will be
provided without charge. A charge may be made for multiple copy
requests.
(3) During the 30-day administrative action period noted in
Sec. 650.12(c), NRCS will make its final EIS available to the public (40
CFR 1506.10).
(f) Supplements to EIS's. (1) If NRCS determines that it is
necessary to clarify or amplify a point of concern raised after the
final EIS is filed, appropriate clarification or amplification is to be
sent to EPA with information copies furnished to those who received
copies of the final EIS. The waiting periods do not apply.
[[Page 588]]
(2) If the RFO determines that the final EIS or supplement to the
original EIS previously filed becomes inadequate because of a major
change in the plan for the proposed action that significantly affects
the quality of the human environment, a new EIS is to be prepared,
filed, and distributed as described in this section.
Subpart B_Related Environmental Concerns
Authority: Pub. L. 86-523, 74 Stat. 220 as amended, Pub. L. 93-291,
88 Stat. 174 (16 U.S.C. 469); Pub. L. 89-665, 80 Stat. 915 (16 U.S.C.
470); Pub. L. 93-205, 87 Stat. 884 (16 U.S.C. 1531 et seq.); Secretary
of Agriculture Memorandum 1695, May 28, 1970; 42 U.S.C. 4332(2)(C); E.O.
11514, 16 U.S.C. 1001-1008; 7 U.S.C. 1010-1011; 16 U.S.C. 590 a-f, q; 7
CFR 2.62.
Source: 39 FR 43993, Dec. 20, 1974, unless otherwise noted.
Sec. 650.20 Reviewing and commenting on EIS's prepared by other
agencies.
(a) NRCS employees assigned to review and comment on EIS's prepared
by other agencies are to be familiar with NRCS policies and guidelines
contained in this part, and NEPA.
(b) EIS's received for review by NRCS for which NRCS has expertise
or interest shall be responded to promptly. Comments are to be objective
with the intent to offer suggestions to help minimize adverse impacts of
the proposed action to ensure the health and welfare of the agricultural
community. Comments are to be based on knowledge readily available.
Field office technical guides, soil surveys, field investigation
reports, and other resource data and reference materials developed by
NRCS and other agencies should be used and cited. It is not intended
that special surveys or investigations be conducted to acquire
additional information for use in preparing comments.
(c) The NRCS reviewer should consider the following kinds of
concerns--(1) The suitability or limitations of the soils for the
proposed action. Would an alternative route, location, or layout
minimize land use problems and adverse environmental impacts?
(2) Provisions for control of erosion and management of water during
construction. Are there resources downstream that would be affected by
sediment from the construction area, and does the statement provide for
adequate control measures? Will lack of erosion control cause air
pollution? Is the stockpiling of topsoil for future use considered in
the EIS?
(3) Provisions for soil and water conservation management measures
on project lands, rights-of-way, access roads, and borrow areas. Does
the statement indicate that enduring soil and water practices are to be
installed and maintained?
(4) The effect of water discharges from project lands or rights-of-
way onto other properties. Will discharges cause erosion or flooding on
other lands? Will discharges affect water quality?
(5) The effects of disruption of the natural drainage patterns and
severance of private land units. Does the statement indicate that
natural drainage patterns will be maintained? Will bridges, culverts,
and other water control structures be located to ensure that adjacent
lands are not flooded or otherwise restricted in use? Does the EIS
describe the effects of severance on private land ownerships?
(6) The impact on existing soil and water conservation management
systems. To what extent will conservation systems be altered, severed,
or suffer blocked outlets? Will land use or cover be affected?
(7) Impacts on prime and unique farmland. Would an alternative
location or route require less prime farmland? Does the EIS consider
secondary effects on prime farmland? What benefits are foregone if prime
farmland is taken?
(8) Impacts on ecosystems. Does the EIS describe impacts on major
plant communities, and terrestrial and aquatic ecosystems?
(9) Impacts on NRCS-assisted projects. Does the statement reflect
the effect of the proposed action on present or planned NRCS assisted
projects?
(d) EIS's referred to NRCS for departmental comments. EIS's referred
by the USDA Coordinator for Environmental Quality Activities to the NRCS
national office may designate NRCS as
[[Page 589]]
the lead agency for preparing comments for USDA. In this case, the NRCS
national office determines whether inputs from STC's and other USDA
agencies are needed. If so, STC's and other USDA agencies are requested
to forward comments to the Environmental Services Division fo use in
preparing the USDA response.
(e) EIS's referred to NRCS for agency comments. EIS's received by
the NRCS national office are screened by the Director, Environmental
Services Division to determine which office within NRCS will prepare
comments. If the proposed action is within one State, the draft EIS will
be forwarded to the appropriate STC and he will reply directly to the
agency requesting the comments. If the proposed action involves more
than one State, one STC will be designated to forward NRCS comments
directly to the agency requesting the comments. In some cases, the
action may be national or regional in scope, and require inputs from
several offices within NRCS. In this instance, comments will be
assembled in the Environmental Services Division for preparation of a
response to the agency requesting comments. A copy of each response
prepared by a STC should be sent to the Director, Environmental Services
Division.
(f) EIS's sent to NRCS offices other than the national office. If a
STC receives an EIS from another agency, he is to respond to the
initiating agency. A copy of his comments should be sent to the
Director, Environmental Services Division.
(1) EIS's addressed to NRCS area or field offices. If an EIS is
received by a field or area office of NRCS, the STC will coordinate the
response.
(2) EIS's submitted to conservation districts. NRCS may furnish
needed soil, water, and related resource information to the district for
their use in preparing comments.
(g) Distribution of NRCS comments on other agencies' draft EIS's.
Five copies of review comments made by NRCS on draft EIS's prepared by
other Federal agencies are to be sent to CEQ.
(h) Third party requests for a copy of NRCS comments on another
agency's EIS will be filled after NRCS has forwarded copies of its
letter of comments to CEQ.
[42 FR 40118, Aug. 8, 1977]
Sec. 650.21 Working relations with the U.S. Environmental Protection
Agency (EPA) and related State environmental agencies.
(a) Background. The authorities and missions of NRCS, EPA, and state
environmental agencies make it imperative that an effective cooperative
and coordinative working relationship be developed and maintained in
areas of mutual concern. These common areas include air quality, water
quality, pesticides, waste recycling and disposal, environmental
considerations in land use, Environmental Impact Statements (EIS's) and
environmental considerations in the conservation and development of
natural resources.
(b) Policy. NRCS will work closely with EPA in accordance with the
provisions of the EPA-USDA Memorandum of Understanding July 31, 1974, at
all administrative levels and with related state agencies to meet
statutory requirements and to achieve harmonious implementation of all
actions of mutual concern directed to improving or maintaining the
quality of the environment.
(c) Responsibility--(1) NRCS national office. The Deputy
Administrator for Field Services is responsible for overall coordination
with EPA at the national office level. The Deputy Administrator for
Water Resources is responsible for contacts with EPA in relation to
activities of the Water Resources Council on water and related land
resource planning and for coordinating work with EPA on EIS development.
(2) Technical service center. The TSC director is responsible for
contacts and coordination with EPA regional offices within the group of
states served by the TSC.
(3) NRCS state office. The state conservationist is responsible for
contacts and coordination with regional representatives of EPA and state
environmental agencies in matters of mutual concern within his state.
(d) Coordination and implementation. (1) The NRCS national office
will:
(i) Within the framework of USDA agreements and guidelines, develop
[[Page 590]]
agreements for undertaking specific activities or projects of national
significance and mutual advantage.
(ii) Assist EPA as requested in developing EPA policy, guidelines,
and standards.
(iii) Consider EPA needs in soil survey and land, inventory, and
monitoring activities.
(iv) Maintain needed liaison and develop mutual guidelines with EPA
on water resources work and in coordinating EIS's.
(v) Advise EPA regarding soils, plant materials, and soil and water
conservation techniques.
(vi) Establish procedures for periodic review of NRCS national
standards for treatment systems and practices for agricultural pollution
abatement, including wind and water erosion and sediment control,
transport of pesticides, organic matter and fertilizers, and burning of
residues or clearing debris.
(2) The TSC director will:
(i) Within the framework of NRCS memorandums and guidelines
coordinate with the EPA regional administrator(s) the development of
needed agreements for undertaking specific activities or projects of
multistate significance and mutual advantage.
(3) The state conservationist will:
(i) Obtain early input of EPA and interested state and local
environmental agencies in the planning process for projects or measures
within the state impacting on the environment.
(ii) Coordinate preparations of NRCS practice standards and
procedures for agricultural pollution abatement within the state with
EPA and related state agencies.
(iii) Encourage the development of a coordinated review and approval
process within the state with EPA and appropriate state and local
agencies including conservation districts for actions of mutual concern.
(iv) Attempt to resolve all EPA areas of concern on NRCS assisted
project-type actions within the state before a final EIS is prepared.
Sec. 650.22 Rare, threatened, and endangered species of plants and
animals.
(a) Background. (1) A variety of plant and animal species of the
United States are so reduced in numbers that they are threatened with
extinction. The disappearance of any of these would be a biological,
cultural, and in some instances an economic loss. Their existence
contributes to scientific knowledge and understanding, and their
presence adds interest and variety to life.
(2) The principal hazard to threatened and endangered species is the
destruction or deterioration of their habitats by human activities such
as industrialization, urbanization, agriculture, lumbering, recreation,
and transportation. These activities of man will continue but the
necessity of recognizing their adverse impacts and selecting
alternatives that minimize or eliminate such impacts on threatened and
endangered species is imperative.
(3) The Endangered Species Act of 1973 (Pub. L. 93-205, 87 Stat. 884
(16 U.S.C. 1531 et seq.)) provides a means whereby the ecosystems upon
which endangered and threatened species depend may be maintained and a
program for the conservation of such species. The Act also provides
that, in addition to the Department of the Interior, ``All other federal
departments and agencies shall, in consultation with and with the
assistance of the Secretary (of Interior), utilize their authorities for
the conservation of endangered species and threatened species listed
pursuant to section 4 of this Act and by taking such action necessary to
insure that actions authorized, funded, or carried out by them do not
jeopardize the continued existence of such endangered species and
threatened species or result in the destruction or modification of
habitat of such species which is determined by the Secretary, after
consultation as appropriate with the affected states, to be critical.''
The Act also:
(i) Defines endangered species as any species in danger of
extinction throughout all or a significant portion of its range and
threatened species as any species likely to become an endangered species
within the foreseeable future throughout all or a significant portion of
its range. The Act uses the category ``threatened.'' The term ``rare''
is not used.
(ii) Further defines species as including any subspecies of fish or
wildlife or plants and any other group of fish and
[[Page 591]]
wildlife of the same species or smaller taxa in common spatial
arrangements that interbreed when mature.
(iii) Provides for the Secretary of the Interior to enter into
cooperative agreements with states for the purpose of implementing state
programs for the conservation of endangered and threatened fish and
wildlife. This assistance may include financial grants.
(iv) Provides national lists of endangered and threatened animal and
plant species to be maintained by the Secretary of the Interior and
published in the Federal Register. When resident fish and wildlife are
added to the list, the affected states are to be consulted by the
Secretary. The Secretary of the Smithsonian Institution is preparing a
list of endangered or threatened plant species.
(b) Policy. The Act gives NRCS additional direction for
participation in the conservation and protection of endangered and
threatened species. As the principal federal agency concerned with land
use planning of privately owned rural land and with professional
conservation employees headquartered in almost every county, NRCS is
uniquely capable of playing a vital role. Additional training will be
provided as needed to meet NRCS responsibilities. NRCS will assist in
the conservation of threatened and endangered species and consistent
with legal requirements avoid or prevent activities detrimental to such
species. NRCS concern for these species will not be limited to those
listed by the Secretary of the Interior and published in the Federal
Register, but will include species designated by state agencies as rare,
threatened, endangered, etc.
(c) Responsibility--(1) NRCS national office. The Administrator will
arrange for consultation and coordination of NRCS national office
activities with the U.S. Fish and Wildlife Service, other federal
agencies, and national organizations.
(2) Technical service center. The TSC director will, within the
group of states served by the TSC arrange for consultation and
coordination with regional representatives of the U.S. Fish and Wildlife
Service, other Federal agencies, and national and regional
organizations.
(3) NRCS state office. The state conservationist will arrange for
consultation and coordination with the state fish and game or
conservation agency, other state agencies, state organizations and
foundations, conservation districts, and state representatives of
federal agencies and national organizations.
(d) Coordination and implementation. (1) The NRCS national office
will:
(i) Within the framework of national legislation, USDA agreements,
and NRCS objectives, develop NRCS policies and directives for guiding
agency efforts that will protect threatened and endangered species and
for avoiding actions that jeopardize the continued existence of such
species and their critical habitats.
(ii) Maintain needed liaison and develop mutual understanding with
the U.S. Fish and Wildlife Service and other concerned federal agencies.
(iii) Establish procedures for periodic review of NRCS participation
in the national effort to conserve these species.
(2) The TSC director will: (i) Within the framework of NRCS policies
and guidelines, arrange for needed liaison and understanding with
regional counterparts of other federal agencies within the group of
states served by the TSC and keep state conservationists informed of
developments within such states.
(ii) Provide guidance and assistance to state conservationists in
carrying out NRCS policies and guidelines.
(3) The state conservationist will develop procedures to establish
working relationships with other concerned federal agencies, state fish
and wildlife or conservation agencies, conservation districts, concerned
scientists in state university systems and natural history museums, and
other informed persons and organizations to offer assistance in:
(i) Preparing or maintaining lists of the state's threatened and
endangered species.
(ii) Determining the geographic occurrence of endangered and
threatened species, the nature of their habitat, and that portion of the
habitat that is critical to the survival, maintenance, or increase of
these species.
[[Page 592]]
(iii) Discussing the kinds of measures important to preserve their
habitat.
(iv) A monitoring program that would obtain advanced warning of
actions or conditions that could further endanger these species, thereby
enabling NRCS and others to take appropriate protective action.
(v) Assisting recovery teams, as appropriate, in preparing species
recovery plans of those endangered and threatened species included in
Federal lists.
(4) The state conservationist will also:
(i) Keep NRCS area and field offices informed of species listed as
being threatened or endangered, geographic area in which they are found,
and information such as their numbers, preferred habitat, and critical
factors.
(ii) Review the status of threatened and endangered species each
December and send a report of the review to the Administrator.
(5) NRCS district conservationists within the geographic range of
threatened and endangered species will examine conservation district
programs and NRCS operations to evaluate their effects on these species,
and recommend to district officials and the state conservationist any
action needed for their protection.
(6) NRCS field employees within the geographic range of threatened
and endangered species will be continually alert to conditions, actions,
or trends that may adversely affect the welfare of these species and
report adverse situations to the state conservationist.
Sec. 650.23 Natural areas.
(a) Background. (1) Natural areas are defined as land or water units
where natural conditions are maintained insofar as possible. Natural
conditions usually result from allowing ordinary physical and biological
processes to operate with a minimum of human intervention. Manipulations
may be required on natural areas to maintain or restore features that
the areas were established to protect.
(2) Natural areas may be designated areas of Federal, non-Federal
government, or privately controlled land. Designation may be formal as
provided for under federal regulations for areas of federal land to be
administered as natural areas or by foundations or conservation
organizations specifically created to acquire and maintain natural
areas. Designation may be informal in the case of private landowners who
designate a specific area as a natural area and manage it accordingly.
Several professional societies concerned with renewable natural
resources encourage establishment of natural areas withdrawn from
economic uses and recognition of natural areas maintained and managed in
economic enterprises.
(3) Natural areas are established and maintained for a variety of
purposes including:
(i) Furthering science and education. Natural areas provide sites
for research and outdoor classrooms for study of plant and animal
communities in environments with particular ecological conditions.
(ii) Monitoring the surrounding environment. Natural areas serve as
gauges against which to evaluate changes in land use, vegetation, animal
life, air quality, or other environmental values.
(iii) Providing recreation attractions. Natural areas are valued by
many people for their scenic, wild, and undisturbed character but must
be protected, as needed, to prevent disturbance or alteration of the
resources.
(iv) Preserving unique values. Natural areas may be established to
protect scenic, biologic, geologic, or paleontologic features.
(v) Serving as a genetic base for native plants and animals. Natural
areas may be established to preserve examples of land and water
ecosystems with their full range of genetic diversity of native plants
and animals including threatened and endangered species.
(b) Policy. NRCS will recognize natural areas, if so dedicated, as a
land use, and will support the designation of appropriate natural areas.
(c) Responsibility--(1) NRCS national office. The Administrator will
designate a member of the national office staff to act as NRCS
representative on the Federal Committee for Ecological Preserves and to
provide appropriate liaison with other federal agencies and non-Federal
groups concerned with natural areas.
[[Page 593]]
(2) Technical service center. The TSC director will designate a TSC
plant sciences discipline leader to provide leadership, appropriate
liaison, and assistance on natural areas to NRCS state offices.
(3) NRCS state office. The state conservationist will designate an
appropriate NRCS representative to work with other agencies and groups,
and will coordinate assistance on natural areas needed by area and field
offices.
(d) Coordination and implementation. (1) NRCS technical assistance
will be furnished to representatives of administering agencies,
foundations, groups, and individuals when requested through conservation
districts. Conservation district officers will be encouraged to
recognize appropriate natural areas concepts and programs and to
participate in them.
(2) NRCS employees will report to state conservationists abuses and
potential or actual damages to natural areas that may be found in the
course of ordinary business.
(3) NRCS will cooperate with professional societies, groups, and
individuals in locating areas suitable for and needed as natural areas.
(4) NRCS employees providing technical assistance to land users must
inform them about the impact their decisions may have on adjacent or
nearby natural areas. Land users will be encouraged to consult with
concerned agencies, societies, and individuals to arrive at mutually
satisfactory land use and treatment.
(5) Recommended classification systems for characterizing areas
designated as ecological preserves or as natural areas are contained in
the following publications:
Soil Taxonomy, a Basic System of Soil Classification for Making and
Interpreting Soil Surveys, USDA-NRCS Agricultural Handbook 436.
Forest Cover Types of North America Exclusive of Mexico, Report of the
Committee on Forest Cover Types, Society of American Foresters, 1964.
Potential Natural Vegetation of Conterminous United States. A. W.
Kuchler, American Geographical Society Special Publication 36, 1964.
Wetlands classification described by the U.S. Fish and Wildlife Service
in its Circular 39.
NRCS will, to the extent feasible, use these classification systems when
providing technical assistance on public and private natural areas and
ecological preserves.
(6) The NRCS published National List of Scientific Plant Names will
be used when scientific names or name symbols are needed for automatic
data processing.
Sec. 650.24 Scenic beauty (visual resource).
(a) Background. Contributions to scenic beauty are a normal product
of NRCS work. Strip-cropping, field borders, field windbreaks, and ponds
are examples. Emphasis is given to those soil and water conservation
measures that contribute to a productive and efficient agriculture and
increase the attractiveness of rural America and are in line with goals
and objectives of conservation districts. This is best accomplished by
considering the landscape visual resource when providing planning
assistance to individual landowners, groups, units of government, and
watershed and resource conservation development project sponsors. NRCS
responsibilities in recreation also offer opportunities to develop the
scenic beauty of the rural landscape. Department of Agriculture
Secretary's Memorandum 1695, May 28, 1970, ``Protecting and Improving
The Quality of the Environment,'' includes scenic beauty as an objective
of the Department's programs.
(b) Policy. NRCS will: (1) Provide technical assistance with full
consideration of alternative management and development systems that
preserve scenic beauty or improve the visual resource; (2) emphasize the
application of conservation practices having scenic beauty or visual
resource values particularly in waste management systems; field borders,
field windbreaks, wetland management, access roads, critical area
treatment; design and management of ponds, stream margins, odd areas,
and farmsteads; siting or positioning of structures and buildings to be
in harmony with the landscape while reducing the potential for erosion;
using native and other adaptable plants for conservation which enhance
scenic beauty and create variety while
[[Page 594]]
linking beauty with utility; (3) promote personal pride in landowners in
the installation, maintenance, and appearance of conservation practices
and their properties; (4) select suitable areas for waste products and
use of screens to hide ``eyesore'' areas, and (5) encourage conservation
districts to include practices which promote scenic beauty in their
annual and long-range programs.
(c) Responsibility. The Natural Resources Conservation Service will
provide technical assistance through conservation districts to
landowners, operators, communities, and state and local governments in
developing programs relating to scenic beauty.
(1) NRCS national office. The Administrator will:
(i) Assign appropriate NRCS national office leadership to insure
that enhancement of scenic beauty is included in national information,
policy, guidelines, standards, guides to specifications for conservation
practices without impairing basic soil and water conservation functions.
(ii) Emphasize in plant material center management and in plant
materials functions that locating and evaluating plants for forage,
erosion control, and recreation or wildlife uses be carried out with
full attention to visual resource value.
(2) NRCS state office. The state conservationist will:
(i) Assign appropriate staff member(s) to provide leadership in
carrying out scenic beauty policy and procedure within the state.
(ii) Develop and keep current a landscape management plan to improve
and maintain the appearance of all real properties under NRCS control,
and provide appropriate assistance to owners and managers of properties
leased or rented by NRCS.
(iii) Give emphasis to preserving scenic beauty and contributing to
the visual resource in the NRCS information program whenever
opportunities exist.
(d) Coordination and implementation. (1) The governing body of each
conservation district will be encouraged to revise or update its
district program to appropriately provide for beautification of the
countryside through applicable land use changes and effective soil and
water conservation treatment.
(2) In providing assistance to watershed and resource conservation
and development project sponsors and other resource planning groups for
soil, water, and related resources, emphasis will be given to measures
that preserve natural beauty or contribute to the quality of the visual
resource.
(3) Local organizations and groups interested in scenic beauty will
be contacted and consulted for cooperation in and coordination with NRCS
and conservation district efforts.
Sec. 650.25 Flood-plain management.
Through proper planning, flood plains can be managed to reduce the
threat to human life, health, and property in ways that are
environmentally sensitive. Most flood plains are valuable for
maintaining agricultural and forest products for food and fiber, fish
and wildlife habitat, temporary floodwater storage, park and recreation
areas, and for maintaining and improving environmental values. NRCS
technical and financial assistance is provided to land users primarily
on non-Federal land through local conservation districts and other State
and local agencies. Through its programs, NRCS encourages sound flood-
plain management decisions by land users.
(a) Policy--(1) General. NRCS provides leadership and takes action,
where practicable, to conserve, preserve, and restore existing natural
and beneficial values in base (100-year) flood plains as part of
technical and financial assistance in the programs it administers. In
addition, 500-year flood plains are taken into account where there are
``critical actions'' such as schools, hospitals, nursing homes,
utilities, and facilities producing or storing volatile, toxic, or
water-reactive materials.
(2) Technical assistance. NRCS provides leadership, through
consultation and advice to conservation districts and land users, in the
wise use, conservation, and preservation of all land, including flood
plains. Handbooks, manuals, and internal memoranda set forth specific
planning criteria for addressing flood-plain management in NRCS-assisted
programs. The general procedures and guidelines in this part
[[Page 595]]
comply with Executive Order (E.O.) 11988, Floodplain Management, dated
May 24, 1977, and are consistent with the Water Resources Council's
Unified National Program for Floodplain Management.
(3) Compatible land uses. The NRCS Administrator has determined that
providing technical and financial assistance for the following land uses
is compatible with E.O. 11988:
(i) Agricultural flood plains that have been used for producing
food, feed, forage, fiber, or oilseed for at least 3 of the 5 years
before the request for assistance; and
(ii) Agricultural production in accordance with official State or
designated area water-quality plans.
(4) Nonproject technical and financial assistance programs. The NRCS
Administrator has determined that NRCS may not provide technical and
financial assistance to land users if the results of such assisted
actions are likely to have significant adverse effects on existing
natural and beneficial values in the base flood plain and if NRCS
determines that there are practicable alternatives outside the base
flood plain. NRCS will make a case-by-case decision on whether to limit
assistance whenever a land user proposes converting existing
agricultural land to a significantly more intensive agricultural use
that could have significant adverse effects on the natural and
beneficial values or increase flood risk in the base flood plain. NRCS
will carefully evaluate the potential extent of the adverse effects and
any increased flood risk.
(5) Project technical and financial assistance programs. In planning
and installing land and water resource conservation projects, NRCS will
avoid to the extent possible the long and short-term adverse effects of
the occupancy and modification of base flood plains. In addition, NRCS
also will avoid direct or indirect support of development in the base
flood plain wherever there is a practicable alternative. As such, the
environmental evaluation required for each project action (Sec. 650.5 of
this part) will include alternatives to avoid adverse effects and
incompatible development in base flood plains. Public participation in
planning is described in Sec. 650.6 of this part and will comply with
section 2(a)(4) of E.O. 11988. Flood-plain management requires the
integration of these concerns into NRCS's National Environmental Policy
Act (NEPA) process for project assistance programs as described in
Section 650 of this part.
(6) Real property and facilities under NRCS ownership or control.
NRCS owns or controls about 30 properties that are used primarily for
the evaluation and development of plant materials for erosion control
and fish and wildlife habitat plantings (7 CFR Part 613, Plant Materials
Centers, 16 U.S.C. 590 a-e, f, and 7 U.S.C. 1010-1011). If NRCS real
properties or facilities are located in the base flood plain, NRCS will
require an environmental evaluation when new structures and facilities
or major modifications are proposed. If it is determined that the only
practicable alternative for siting the proposed action may adversely
affect the base flood plain, NRCS will design or modify its action to
minimize potential harm to or within the flood plain and will prepare
and circulate a notice explaining why the action is proposed to be
located in the base flood plain. Department of Housing and Urban
Development (HUD) flood insurance maps, other available maps,
information, or an onsite analysis will be used to determine whether the
proposed NRCS action is in the base flood plain. Public participation in
the action will be the same as described in Sec. 650.6 of this part.
(b) Responsibility. NRCS provides technical and financial assistance
to land users primarily through conservation districts, special purpose
districts, and other State or local subdivisions of State government.
Acceptance of this assistance is voluntary on the part of the land user.
NRCS does not have authority to make land use decisions on non-Federal
land. NRCS provides the land user with technical flood hazard data and
information on flood-plain natural values. NRCS informs the land user
how alternative land use decisions may affect the aquatic and terrestial
ecosystems, human safety, property, and public welfare. Alternatives to
flood-plain occupancy, modification, and development are discussed
onsite with the land user by NRCS.
[[Page 596]]
(1) NRCS National Office. (Sec. 600.2 of this part). The NRCS
Administrator, state conservationist, and district conservationist are
the responsible Federal officials in NRCS for implementing the policies
expressed in these rules. Any deviation from these rules must be
approved by the Administrator. The Deputy Administrator for Programs has
authority to oversee the application of policy in NRCS programs.
Oversight assistance to state conservationists for flood-plain
management will be provided by the NRCS technical service centers
(Sec. 600.3 of this part).
(2) NRCS state offices. (Sec. 600.4 of this part). Each state
conservationist is the responsible Federal official in all NRCS-assisted
programs administered within the State. He or she is also responsible
for administering the plant materials centers within the State. The
state conservationist will assign a staff person who has basic knowledge
of landforms, soils, water, and related plant and animal ecosystems to
provide technical oversight to ensure that assistance to land users and
project sponsors on the wise use, conservation, and preservation of
flood plains is compatible with national policy. For NRCS-assisted
project actions, the staff person assigned by the state conservationist
will consult with the local jurisdictions, sponsoring local
organizations, and land users, on the basis of an environmental
evaluation, to determine what constitutes significant adverse effects or
incompatible development in the base flood plain. The state
conservationist is to prepare and circulate a written notice for NRCS-
assisted actions for which the only practicable alternative requires
siting in a base flood plain and may result in adverse effects or
incompatible development. The NRCS NEPA process will be used to
integrate flood-plain management into project planning and consultations
on land use decisions by land users and project sponsors.
(3) NRCS field offices. The district conservationist (Sec. 600.6 of
this part) is delegated the responsibility for providing technical
assistance and approving financial assistance to land users in
nonproject actions, where applicable, and for deciding what constitutes
an adverse effect or incompatible development of a base flood plain.
This assistance will be based on official NRCS policy, rules,
guidelines, and procedures in NRCS handbooks, manuals, memoranda, etc.
For NRCS-assisted nonproject actions, the district conservationist, on
the basis of the environmental evaluation, will advise recipients of
technical and financial assistance about what constitutes a significant
adverse effect or incompatible development in the base flood plain.
(c) Coordination and implementation. All planning by NRCS staffs is
interdisciplinary and encompasses the six NEPA policy statements, the
WRC Principles and Standards, and an equivalent of the eight-step
decisionmaking process in the WRC's February 1978 Floodplain Management
Guidelines. NRCS internal handbooks, manuals, and memoranda provide
detailed information and guidance for NRCS planning and environmental
evaluation.
(1) Steps for nonproject technical and financial assistance
programs. (i) NRCS assistance programs are voluntary and are carried out
through local conservation districts (State entities) primarily on non-
Federal, privately owned lands.
(ii) After the land user decides the type, extent, and location of
the intended action for which assistance is sought, the district
conservationist will determine if the intended action is in the base
flood plain by using HUD flood insurance maps, and other available maps
and information or by making an onsite determination of the approximate
level of the 100-year flood if maps or other usable information are
lacking.
(iii) If the district conservationist determines that the land
user's proposed location is outside the base flood plain, and would not
cause potential harm within the base flood plain, NRCS will continue to
provide assistance, as needed.
(iv) If the district conservationist determines that the land user's
proposed action is within the base flood plain and would likely result
in adverse effects, incompatible development, or an increased flood
hazard, it is the responsibility of the district conservationist to
determine and point out to the land
[[Page 597]]
user alternative methods of achieving the objective, as well as
alternative locations outside the base flood plain. If the alternative
locations are determined to be impractical, the district conservationist
will decide whether to continue providing assistance. If the decision is
to terminate assistance for the proposed action, the land user and the
local conservation district, if one exists, will be notified in writing
about the decision.
(v) If the district conservationist decides to continue providing
technical and financial assistance for a proposed action in the base
flood plain, which is the only practicable alternative, NRCS may require
that the proposed action be designed or modified so as to minimize
potential harm to or within the flood plain. The district
conservationist will prepare and circulate locally a written notice
explaining why the action is proposed to be located in the base flood
plain.
(2) Steps for project assistance programs. (i) NRCS project
assistance to local sponsoring organizations (conservation districts and
other legal entities of State government) and land users is carried out
primarily on non-Federal land in response to requests for assistance.
NRCS helps the local sponsoring organizations prepare a plan for
implementing the needed resource measures.
(ii) NRCS uses an interdisciplinary environmental evaluation
(Sec. 650.6 of this part) as a basis for providing recommendations and
alternatives to project sponsors. Flood-plain management is an integral
part of every NRCS environmental evaluation. NRCS delineates the base
flood plain by using detailed HUD flood insurance maps and other
available data, as appropriate, and provides recommendations to sponsors
on alternatives to avoid adverse effects and incompatible development in
base flood plains. NRCS will develop, as needed, detailed 100-year and
500-year flood-plain maps where there are none.
(iii) NRCS's NEPA process (part 650 of this chapter) is used to
integrate the spirit and intent of E.O. 11988 Sections 2(a) and 2(c)
into agency planning and recommendations for land and water use
decisions by local sponsoring organizations and land users.
(iv) NRCS will terminate assistance to a local sponsoring
organization in project programs if it becomes apparent that decisions
by land users and local jurisdictions concerning flood-plain management
would likely result in adverse effects or incompatible development and
the environmental evaluation reveals that there are practicable
alternatives to the proposed project that would not cause adverse
effects on the base flood plain.
(v) In carrying out the planning and installation of land and water
resource conservation projects, NRCS will avoid, to the extent possible,
the long-term and short-term adverse effects associated with the
occupancy and modification of base flood plains. In addition, NRCS will
also avoid direct or indirect support of development in the base flood
plain wherever there is a practicable alternative. Where appropriate,
NRCS will require design modifications to minimize harm to or within the
base flood plain. NRCS will provide appropriate public notice and public
participation in the continuing planning process in accordance with NRCS
NEPA process.
(vi) NRCS may require the local government to adopt and enforce
appropriate flood plain regulations as a condition to receiving project
financial assistance.
(3) Actions on property and facilities under NRCS ownership or
control. For real property and facilities owned by or under the control
of NRCS, the following actions will be taken:
(i) Locate new structures, facilities, etc., outside the base flood
plain if there is a practicable alternate site.
(ii) Require public participation in decisions to construct
structures, facilities, etc., in flood plains that might result in
adverse effects and incompatible development in such areas if no
practicable alternatives exist.
(iii) New construction or rehabilitation will be in accordance with
the standards and criteria of the National Flood Insurance Program and
will include floodproofing and other flood protection measures as
appropriate.
[44 FR 44462, July 30, 1979]
[[Page 598]]
PART 651 [RESERVED]
PART 652_TECHNICAL SERVICE PROVIDER ASSISTANCE
Subpart A_General Provisions
Sec.
652.1 Applicability.
652.2 Definitions.
652.3 Administration.
652.4 Technical service standards.
652.5 Participant acquisition of technical services.
652.6 Department delivery of technical services.
652.7 Quality assurance.
Subpart B_Certification
652.21 Certification criteria and requirements.
652.22 Certification process for individuals.
652.23 Certification process for private-sector entities.
652.24 Certification process for public agencies.
652.25 Alternative application process for individual certification.
652.26 Certification renewal.
Subpart C_Decertification
652.31 Policy.
652.32 Causes for decertification.
652.33 Notice of proposed decertification.
652.34 Opportunity to contest decertification.
652.35 State Conservationist decision.
652.36 Appeal of decertification decision.
652.37 Period of decertification.
652.38 Scope of decertification.
652.39 Mitigating factors.
652.40 Effect of decertification.
652.41 Effect of filing deadlines.
652.42 Recertification.
Authority: 16 U.S.C. 3842.
Source: 69 FR 69472, Nov. 29, 2004, unless otherwise noted.
Subpart A_General Provisions
Source: 75 FR 6845, Feb. 12, 2010, unless otherwise noted.
Sec. 652.1 Applicability.
(a) The regulations in this part set forth the policies, procedures,
and requirements related to delivery of technical assistance by
individuals and entities other than the Department, hereinafter referred
to as technical service providers (TSPs). The Food Security Act of 1985,
requires the Secretary to deliver technical assistance to eligible
participants for implementation of its Title XII Programs and the
conservation activities in the Agricultural Management Assistance
Program, 7 U.S.C. 1524, directly, through an agreement with a third
party provider, or at the option of the producer through payment to the
producer for an approved third party provider. This regulation defines
how a participant acquires technical service from a third party TSP,
sets forth a certification and decertification process, and establishes
a method to make payments for technical services.
(b) TSPs may provide technical services to eligible participants in
conservation planning, education and outreach, and assistance with
design and implementation of conservation practices applied on private
land, Indian land, or where allowed by conservation program rules on
public land.
(c) The Chief may implement this part in any of the 50 States,
District of Columbia, Commonwealth of Puerto Rico, Guam, Virgin Islands,
American Samoa, and the Commonwealth of the Northern Marianna Islands.
Sec. 652.2 Definitions.
The following definitions apply to this part and all documents
issued in accordance with this part, unless specified otherwise:
Approved list means the list of individuals, private sector
entities, or public agencies certified by the Natural Resources
Conservation Service (NRCS) to provide technical services to a
participant.
Certification means the action taken by NRCS to approve:
(1) An individual as meeting the minimum NRCS criteria for providing
technical service for conservation planning or a specific conservation
practice or system.
(2) An entity or public agency having an employee or employees that
meet the minimum NRCS criteria for providing technical service for
conservation planning or a specific conservation practice or system.
Chief means the Chief of NRCS or designee.
[[Page 599]]
Conservation activity plan means the conservation practices
associated with plan development as authorized under the Food,
Conservation, and Energy Act of 2008 (2008 Act).
Conservation plan means a record of the client's decisions and
supporting information for treatment of a land unit or water as a result
of the planning process that meets the Field Office Technical Guide
quality criteria for each natural resource (soil, water, air, plants,
and animals), and takes into account economic and social considerations.
The plan describes the schedule of operations and activities needed to
solve identified natural resource problems and takes advantage of
opportunities at a conservation management system level. The needs of
the client, the resources, and Federal, State, and local requirements
will be met.
Conservation practice means a specified treatment, such as a
structural or vegetative practice, or a land management practice that is
planned and applied according to NRCS standards and specifications.
Contribution agreement means the instrument used to acquire
technical services under the authority of 7 U.S.C. 6962a.
Cooperative agreement means the same as defined in the Federal
Grants and Cooperative Agreement Act, 31 U.S.C. 6301 et seq.
Department means the NRCS, the Farm Service Agency, or any other
agency or instrumentality of the Department of Agriculture (USDA) that
is assigned responsibility for all or a part of a conservation program
subject to this part.
Eligible participant means a producer, landowner, or entity that is
participating in, or seeking to participate in, a conservation program
covered by this rule in which the producer, landowner, or entity is
otherwise eligible to participate.
Entity means a corporation, joint stock company, association,
cooperative, limited partnership, limited liability partnership, limited
liability company, nonprofit organization, a member of a joint venture,
or a member of a similar organization.
Indian land means all lands held in trust by the United States for
individual Indians or tribes, or all lands, titles to which are held by
individual Indians or tribes, subject to Federal restrictions against
alienation or encumbrance, or all lands which are subject to the rights
of use, occupancy, and benefit of certain tribes. The term Indian land
also includes land for which the title is held in fee status by Indian
tribes and the United States Government-owned land under the Bureau of
Indian Affairs jurisdiction.
Procurement contract means the same as the term ``contract'' means
under the Federal Grants and Cooperative Agreement Act, 31 U.S.C. 6301
et seq.
Program contract means the document that specifies the rights and
obligations of any individual or entity that has been accepted for
participation in a program authorized under Title XII of the Food
Security Act of 1985, or the Agricultural Management Assistance Program,
authorized under 7 U.S.C. 1524.
Public agency means a unit or subdivision of Federal, State, local,
or tribal government other than the Department.
Recommending organization means a professional organization,
association, licensing board, or similar organization with which NRCS
has entered into an agreement to recommend qualified individuals for
NRCS certification as TSPs for specific technical services.
Secretary means the Secretary of the Department of Agriculture.
State Conservationist means the NRCS employee authorized to direct
and supervise NRCS activities in a State, Caribbean Area, or Pacific
Basin Area.
Technical service means the technical assistance provided by TSPs,
including conservation planning; education and outreach; and the design,
installation, and check-out of approved conservation practices.
Technical service contract means a document that specifies the
rights and obligations of an eligible participant to obtain technical
services from a TSP where the eligible participant will not receive
financial assistance for the implementation of the practice paid for in
the technical service contract through
[[Page 600]]
participation in a Title XII conservation program or the Agricultural
Management Assistance Program, 7 U.S.C. 1524.
Technical service provider means an individual, entity, Indian
Tribe, or public agency either:
(1) Certified by NRCS and placed on the approved list to provide
technical services to participants; or
(2) Selected by the Department to assist the Department in the
implementation of conservation programs covered by this part through a
procurement contract, contribution agreement, or cooperative agreement
with the Department.
Written agreement means the document that specifies the rights and
obligations of any individual or entity that has been authorized by NRCS
to receive conservation planning assistance without having a program
contract.
[75 FR 6845, Feb. 12, 2010, as amended at 75 FR 48273, Aug. 10, 2010]
Sec. 652.3 Administration.
(a) As provided in this part, the Department will provide technical
assistance to participants directly, or at the option of the
participant, through a TSP in accordance with the requirements of this
part.
(b) The Chief of NRCS will direct and supervise the administration
of the regulations in this part.
(c) NRCS will:
(1) Provide overall leadership and management for the development
and administration of a TSP process;
(2) Consult with the Farm Service Agency and other appropriate
agencies and entities concerning the availability and utilization of
TSPs and the implementation of technical service;
(3) Establish policies, procedures, guidance, and criteria for
certification, recertification, decertification, certification renewal,
and implementation of the use of TSPs;
(4) Provide training to ensure that persons meet the certification
criteria for certain technical expertise when there is a lack of
training resources or market outside the agency for such technical
expertise. However, any training provided by the Department will be
limited to training about Department regulations, policies, procedures,
processes, and business and technical tools unique to NRCS; and
(5) Establish a process for verifying information provided to NRCS
under this part.
(d) The Department will not make payments under a program contract
or written agreement with a participant for technical services provided
by a TSP unless the TSP is certified by NRCS for the services provided
and is identified on the approved list.
(e) The Department may enter into procurement contracts,
contribution agreements, cooperative agreements, or other appropriate
instruments to assist the Department in providing technical assistance
when implementing conservation programs covered by this part. The
Department will ensure that such instruments contain the qualification
and performance criteria necessary to ensure quality implementation of
the goals and objectives of these conservation programs; therefore, when
the Department obtains assistance from a TSP in this manner, the TSP is
authorized to provide technical services and receive payment even if
such TSP is not certified in accordance with subpart B, nor identified
on the approved list.
(f) When a participant acquires technical services from a TSP, the
Department is not a party to the agreement between the participant and
the TSP. To ensure that quality implementation of the goals and
objectives of the conservation programs are met, the TSP must be
certified by NRCS in accordance with subpart B of this part and
identified on the approved list. Upon request of NRCS, TSPs are required
to submit copies of all transcripts, licensing, and certification
documentation.
Sec. 652.4 Technical service standards.
(a) All technical services provided by TSPs must meet USDA standards
and specifications as set forth in Departmental manuals, handbooks,
guides, and other references for soils mapping and natural resources
information, conservation planning, conservation practice application,
and other areas of technical assistance.
(b) The Department will only pay a participant for technical
services provided in accordance with established
[[Page 601]]
NRCS standards, specifications, and requirements. The Department must
approve all new technologies and innovative practices, including interim
standards and specifications, prior to a TSP initiating technical
services for those technologies and practices.
(c) A TSP must assume responsibility in writing for the particular
technical services provided. Technical services provided by the TSP
must:
(1) Comply with all applicable Federal, State, tribal, and local
laws and requirements;
(2) Meet applicable Department standards, specifications, and
program requirements;
(3) Be consistent with the particular conservation program goals and
objectives for which the program contract was entered into by the
Department and the participant; and
(4) Incorporate alternatives that are both cost effective and
appropriate to address the resource issues. Conservation alternatives
will meet the objectives for the program and participant to whom
assistance is provided.
(d) TSPs are responsible for the technical services provided,
including any costs, damages, claims, liabilities, and judgments arising
from past, present, and future negligent or wrongful acts or omissions
of the TSP in connection with the technical service provided.
(e) The Department will not be in breach of any program contract or
written agreement if it fails to implement conservation plans or
practices or make payment for conservation plans or practices resulting
from technical services that do not meet USDA standards and
specifications or are not consistent with program requirements.
(f) The participant is responsible for complying with the terms and
conditions of the program contract or written agreement, which includes
meeting USDA technical standards and specifications for any technical
services provided by a TSP.
(g) The TSP will report in the NRCS conservation accomplishment
tracking system the appropriate data elements associated with the
technical services provided to the Department or participant.
(h) To the extent allowed under State or tribal law, TSPs may
utilize the services of subcontractors to provide specific technical
services or expertise needed by the TSP, provided that the
subcontractors are certified by NRCS in accordance with this part for
the particular technical services to be provided and the technical
services are provided in terms of their Certification Agreement.
Payments will not be made for any technical services provided by
uncertified subcontractors, except when such technical services are
provided under the provisions of a procurement contract, cooperative
agreement, or contribution agreement with the NRCS.
Sec. 652.5 Participant acquisition of technical services.
(a) Participants may obtain technical assistance directly from the
Department or, when available, from a TSP.
(b) To acquire technical assistance directly from the Department,
participants should contact their local USDA Service Center.
(c) To acquire technical services from a TSP, participants must:
(1) Enter into and comply with a program contract or a written
agreement prior to acquiring technical services; and
(2) Select a certified TSP from the approved list of TSPs.
(d) The Department may approve written agreements for technical
assistance prior to program participation based on available funding and
natural resource priorities as identified by the State Conservationist.
(e) The technical assistance indicated in paragraph (d) may include
the development of conservation plans or activity plans suitable for
subsequent incorporation into a program contract.
(f) The Department may make payment to eligible participants who
have a technical service contract and utilize it for technical
assistance from a TSP.
(g) The Department will identify in the particular program contract
or written agreement the payment provisions for TSPs hired directly by
the participant.
(h) To obtain payment for technical services, participants must
submit to the Department valid invoices, supporting documentation, and
requests for payment. The Department will
[[Page 602]]
issue payment within 30 days of receiving these items. The Department
may pay a participant for some or all of the costs associated with the
technical services provided by a TSP hired by the participant, or upon
receipt of an assignment of payment from the participant, make payment
directly to the TSP.
(i) Participants must authorize in writing to the Department the
disclosure of their records on file with the Department that they wish
to make available to specific TSPs.
(j) Payments for technical services will be made only one time for
the same technical service provided unless, as determined by the
Department, the emergence of new technologies or major changes in the
participant's farming or ranching operations necessitate the need for
additional technical services.
(k) The Department will not make payment for activities or services
that are customarily provided at no cost by a TSP to a participant as
determined by the State Conservationist.
(l) Payment rates for technical services acquired by participants.
(1) NRCS will calculate TSP payment rates for technical services
using national, regional, and locally determined price data.
(2) Establishing TSP payment rates.
(i) NRCS will establish guidelines to analyze the local pricing
information using a standardized method.
(ii) The State Conservationist will establish TSP payment rates in
each State for the various categories of technical services. The State
Conservationist will determine the rates according to local NRCS cost
data, procurement data, and market data.
(iii) National Headquarters will review and approve State payment
rates to ensure consistency where similar resource conditions and
agricultural operations exist. Payment rates may vary to some degree
between or within States due to differences in State laws, the cost of
doing business, competition, and other variables.
(iv) National Headquarters and State levels will review payment
rates annually or more frequently, as needed, and adjust the rates based
upon data from existing procurement contracts, Federal cost rates, and
other appropriate sources.
(v) NRCS may adjust payment rates, as needed, on a case-by-case
basis in response to unusual conditions or unforeseen circumstances in
delivering technical services such as highly complex technical
situations, emergency conditions, serious threats to human health or the
environment, or major resource limitations. In these cases, NRCS will
set a case-specific TSP payment rate based on the Department's
determination of the scope, magnitude, and timeliness of the technical
services needed.
Sec. 652.6 Department delivery of technical services.
(a) The Department may enter into a procurement contract,
contribution agreement, cooperative agreement, or other appropriate
instrument to assist the Department in providing technical assistance
when implementing the conservation programs covered by this part.
(b) The Department may enter into a procurement contract,
contribution agreement, cooperative agreement, or other appropriate
instrument with TSPs to provide related technical assistance services
that accelerate conservation program delivery. Related technical
assistance services may include activities or services that facilitate
the development, processing, or implementation of a program contract,
such as recording conservation planning decisions and specifications.
(c) NRCS may enter into agreements with other agencies or with a
non-Federal entity to provide technical services to eligible
participants.
(d) The Department will ensure that such legal instruments contain
qualification and performance criteria necessary to ensure quality
implementation of these conservation programs. When the Department
obtains assistance from a TSP through a procurement contract,
contribution agreement, cooperative agreement, or other similar
instrument, the TSP is authorized to provide technical services and
receive payment even if such TSP is not certified in accordance with
subpart B of this part nor identified on the approved list.
[[Page 603]]
(e) The Department will implement procurement contracts,
contribution agreements, cooperative agreements, and other appropriate
instruments in accordance with applicable Federal acquisition or USDA
Federal assistance rules and requirements for competency, quality, and
selection, as appropriate. Any contract, contribution agreement,
cooperative agreement, or other appropriate instrument entered into
under this section will be for a minimum of one year, will not exceed 3
years in duration, and may be renewed upon mutual agreement of the
parties.
(f) A TSP may not receive payment twice for the same technical
service, such as once from a participant through a program contract or
written agreement and then again through a separate contract or
agreement made directly with the Department.
(g) The Department will, to the extent practicable, ensure that the
amounts paid for technical service under this part are consistent across
conservation program areas, unless specific conservation program
requirements include additional tasks.
Sec. 652.7 Quality assurance.
(a) NRCS will review, in consultation with the Farm Service Agency,
as appropriate, the quality of the technical services provided by TSPs.
As a requirement of certification, TSPs must develop and maintain
documentation in accordance with Departmental manuals, handbooks, and
technical guidance for the technical services provided, and provide this
documentation to NRCS and the participant when the particular technical
service is completed. NRCS may utilize information obtained through its
quality assurance process, documentation submitted by the TSP, and other
relevant information in determining how to improve the quality of
technical service, as well as determining whether to decertify a TSP
under subpart C of this part.
(b) Upon discovery of a deficiency in the provision of technical
service through its quality assurance process or other means, NRCS will,
to the greatest extent practicable, send a notice to the TSP detailing
the deficiency and requesting remedial action by the TSP. Failure by the
TSP to promptly remedy the deficiency, or the occurrence of repeated
deficiencies in providing technical services, may trigger the
decertification process set forth in subpart C of this part. A failure
by NRCS to identify a deficiency does not affect any action under the
decertification process. TSPs are solely responsible for providing
technical services that meet all NRCS standards and specifications.
Subpart B_Certification
Sec. 652.21 Certification criteria and requirements.
(a) To qualify for certification an individual must:
(1) Have the required technical training, education, and experience
to perform the level of technical assistance for which certification is
sought;
(2) Meet any applicable professional or business licensing or
similar qualification standards established by State or Tribal law;
(3) Demonstrate, through documentation of training or experience,
familiarity with NRCS guidelines, criteria, standards, and
specifications as set forth in the applicable NRCS manuals, handbooks,
field office technical guides, and supplements thereto for the planning
and applying of specific conservation practices and management systems
for which certification is sought; and
(4) Not be decertified in any State under subpart C of this part at
the time of application for certification.
(b) To qualify for certification an entity or public agency must be
authorized to provide such services in the jurisdiction and have a
certified individual providing, in accordance with this part, technical
services on its behalf.
(c) A technical service provider, as part of the certification by
NRCS, must enter into a Certification Agreement with NRCS specifying the
terms and conditions of the certification, including adherence to the
requirements of this part, and acknowledging that failure to meet these
requirements may result in ineligibility to receive payments from the
Department, either directly or through the participant, for
[[Page 604]]
the technical services provided or may result in decertification.
(d) NRCS will certify Technical Service Providers for a time period
specified by NRCS in the Certification Agreement, not to exceed 3 years.
Decertification and Renewal of Certification is administered in
accordance with Sec. 652.26.
(e) NRCS may, pursuant to 31 U.S.C. 9701, establish and collect fees
for the certification of technical service providers.
Sec. 652.22 Certification process for individuals.
(a) In order to be considered for certification as a technical
service provider, an individual must:
(1) Submit an Application for Certification to NRCS in accordance
with this section;
(2) Request certification through a recommending organization
pursuant to Sec. 652.25; or
(3) Request certification through an application submitted by a
private-sector entity or public agency pursuant to Sec. 652.23 or
Sec. 652.24, as appropriate.
(b) The application must contain the documentation demonstrating
that the individual meets all requirements of paragraph (a) of
Sec. 652.21.
(c) NRCS will, within 60 days of receipt of an application, make a
determination on the application submitted by an individual under
paragraph (a)(1) of this section and in accordance with paragraph (a) of
Sec. 652.21. If all requirements are met, NRCS will:
(1) Enter into a Certification Agreement and certify the applicant
as qualified to provide technical services for a specific practice,
category, or categories of technical service;
(2) Place the applicant on the list of approved technical service
providers when certified; and
(3) Make available to the public the list of approved technical
service providers by practice or category of technical services.
(d) NRCS may decertify an individual in accordance with the
decertification process set forth in subpart C of this part.
Sec. 652.23 Certification process for private-sector entities.
(a) A private sector entity that applies for certification must
identify, and provide supporting documentation, that it has the
requisite professional and business licensure within the jurisdiction
for which it seek certification, and that it employs at least one
individual, authorized to act on its behalf that:
(1) Has received certification on an individual basis in accordance
with Sec. 652.22; or
(2) Seeks certification on an individual basis as part of the
private-sector entity's certification and ensures that the requirements
set forth in Sec. 652.21(a) are contained within the private-sector
entity's application to support such certification.
(b) NRCS will determine pursuant to Sec. 652.22 whether the
individual(s) identified in the private-sector entity's application
meets the certification standards set forth in Sec. 652.21 for the
specific services the entity wishes to provide.
(c) NRCS will, within 60 days of receipt of an application, make a
determination on the application submitted by an entity. If NRCS
determines that all requirements for the private-sector entity and the
identified individual(s) are met, NRCS will complete the actions
described in paragraphs (c)(1) through (c)(3) of Sec. 652.22.
(d) The Certification Agreement entered into with the private-sector
entity shall:
(1) Identify the certified individuals who are authorized to perform
technical services on behalf of and under the auspices of the entity's
certification;
(2) Require that the entity has, at all times, an individual who is
a certified technical service provider authorized to act on the entity's
behalf;
(3) Require that the entity promptly provide an amended
Certification Agreement to NRCS for approval when the list of certified
individuals performing technical services under its auspices changes;
(4) Require that responsibility for any work performed by non-
certified individuals be assumed by a certified individual who is
authorized to act on the entity's behalf; and
[[Page 605]]
(5) Require that the entity be legally responsible for the work
performed by any individual working under the auspices of its
certification.
(e) NRCS may, in accordance with the decertification process set
forth in this part, decertify the private sector entity, the certified
individual(s) acting under the auspices of its certification, or both
the private sector entity and the certified individual(s) acting under
the auspices of its certification.
Sec. 652.24 Certification process for public agencies.
(a) A public agency that applies for certification must identify,
and provide supporting documentation, that it has the authority within
the jurisdiction within which it seeks to provide technical services and
an individual or individuals authorized to act on its behalf:
(1) Has been certified as an individual in accordance with
Sec. 652.22; or
(2) Seeks certification as an individual as part of the public
agency's certification and sufficient information as set forth in
Sec. 652.21(a) is contained within the public agency's application to
support such certification.
(b) NRCS shall determine whether the individual identified in the
public agency's application meets the certification standards set forth
in Sec. 652.22.
(c) NRCS will, within 60 days of receipt of an application, make a
determination on the application submitted by a public agency. If NRCS
determines that all requirements for the public agency and the
identified individual(s) are met, NRCS will perform the actions
described in paragraph (c)(1) through (c)(3) of Sec. 652.22. The
Certification Agreement entered into with the public agency shall:
(1) Identify the certified individuals that are authorized to
perform technical services on behalf of and under the auspices of the
public agency's certification;
(2) Require that the public agency have, at all times, an individual
that is a certified technical service provider and is an authorized
official of the public agency;
(3) Require that the public agency promptly provide to NRCS for NRCS
approval an amended Certification Agreement when the list of certified
individuals performing technical services under its auspices changes;
(4) Require that responsibility for any work performed by non-
certified individuals be assumed by a certified individual that is
authorized to act on the public agency's behalf; and
(5) Require that the public agency be legally responsible for the
work performed by any individual working under the auspices of its
certification.
(d) NRCS may, in accordance with the decertification process set
forth in subpart C of this part, decertify the public agency, the
certified individual(s) acting under its auspices, or both the public
agency and the certified individual(s) acting under its auspices.
Sec. 652.25 Alternative application process for individual
certification.
(a) NRCS may enter into an agreement, including a memorandum of
understanding or other appropriate instrument, with a recommending
organization that NRCS determines has an adequate accreditation program
in place to train, test, and evaluate candidates for competency in a
particular area or areas of technical service delivery and whose
accreditation program NRCS determines meets the certification criteria
as set forth for the technical services to be provided.
(b) Recommending organizations will, pursuant to an agreement
entered into with NRCS:
(1) Train, test, and evaluate candidates for competency in the area
of technical service delivery;
(2) Recommend to NRCS individuals who it determines meet the NRCS
certification requirements of Sec. 652.21(a) for providing specific
practices or categories of technical services;
(3) Inform the recommended individuals that they must meet the
requirements of this part, including entering into a Certification
Agreement with NRCS, in order to provide technical services under this
part;
(4) Reassess individuals that request renewal of their certification
pursuant to Sec. 652.26 through the recommendation of the organization;
and
[[Page 606]]
(5) Notify NRCS of any concerns or problems that may affect the
organization's recommendation concerning the individual's certification,
recertification, certification renewal, or technical service delivery.
(c) Pursuant to an agreement with NRCS, a recommending organization
may provide to the appropriate NRCS official a current list of
individuals identified by the recommending organization as meeting NRCS
criteria as set forth in Sec. 652.21(a) for specific practices or
categories of technical service and recommend that the NRCS official
certify these individuals as technical service providers in accordance
with this part.
(d) NRCS will, within 60 days, make a determination on the
recommendation for certification issued by the recommending
organization. If NRCS determines that all requirements for certification
are met by the recommended individual(s), NRCS will perform the actions
described in paragraphs (c)(1) through (c)(3) of Sec. 652.22.
(e) NRCS may terminate an agreement with a recommending organization
if concerns or problems with its accreditation program, its
recommendations for certification, or other requirements under the
agreement arise.
Sec. 652.26 Certification renewal.
(a) NRCS certifications are in effect for a time period specified by
NRCS in the Certification Agreement, not to exceed 3 years and
automatically expire unless they are renewed for an additional time
period in accordance with this section.
(b) A technical service provider may request renewal of an NRCS
certification by:
(1) Submitting a complete certification renewal application to NRCS
or through a private sector entity, a public agency, or a recommending
organization to NRCS at least 60 days prior to expiration of the current
certification;
(2) Providing verification on the renewal form that the requirements
of this part are met; and
(3) Agreeing to abide by the terms and conditions of a Certification
Agreement.
(c) All certification renewals are in effect for a time period
specified by NRCS in the Certification Agreement, not to exceed three
years and before expiration, may be renewed for subsequent time period
in accordance with this section.
Subpart C_Decertification
Sec. 652.31 Policy.
In order to protect the public interest, it is the policy of NRCS to
maintain certification of those technical service providers who act
responsibly in the provision of technical service, including meeting
NRCS standards and specifications when providing technical service to
participants. This section, which provides for the decertification of
technical service providers, is an appropriate means to implement this
policy.
Sec. 652.32 Causes for decertification.
A State Conservationist, in whose State a technical service provider
is certified to provide technical service, may decertify the technical
service provider, in accordance with these provisions, if the technical
service provider, or someone acting on behalf of the technical service
provider:
(a) Fails to meet NRCS standards and specifications in the provision
of technical services;
(b) Violates the terms of the Certification Agreement, including but
not limited to, a demonstrated lack of understanding of, or an
unwillingness or inability to implement, NRCS standards and
specifications for a particular practice for which the technical service
provider is certified, or the provision of technical services for which
the technical service provider is not certified;
(c) Engages in a scheme or device to defeat the purposes of this
part, including, but not limited to, coercion, fraud, misrepresentation,
or providing incorrect or misleading information; or
(d) Commits any other action of a serious or compelling nature as
determined by NRCS that demonstrates the technical service provider's
inability to fulfill the terms of the Certification Agreement or provide
technical services under this part.
[[Page 607]]
Sec. 652.33 Notice of proposed decertification.
The State Conservationist will send by certified mail, return
receipt requested, to the technical service provider proposed for
decertification a written Notice of Proposed Decertification, which will
contain the cause(s) for decertification, as well as any documentation
supporting decertification. In cases where a private sector entity or
public agency is being notified of a proposed decertification, any
certified individuals working under the auspices of such organization
who are also being considered for decertification will receive a
separate Notice of Decertification and will be afforded separate appeal
rights following the process set forth below.
Sec. 652.34 Opportunity to contest decertification.
To contest decertification, the technical service provider must
submit in writing to the State Conservationist, within 20 calendar days
from the date of receipt of the Notice of Proposed Decertification, the
reasons why the State Conservationist should not decertify, including
any mitigating factors as well as any supporting documentation.
Sec. 652.35 State Conservationist decision.
Within 40 calendar days from the date of the notice of proposed
decertification, the State Conservationist will issue a written
determination. If the State Conservationist decides to decertify, the
decision will set forth the reasons for decertification, the period of
decertification, and the scope of decertification. If the State
Conservationist decides not to decertify the technical service provider,
the technical service provider will be given written notice of that
determination. The decertification determination will be based on an
administrative record, which will be comprised of: the Notice of
Proposed Decertification and supporting documents, and, if submitted,
the technical service provider's written response and supporting
documentation. Both a copy of the decision and administrative record
will be sent promptly by certified mail, return receipt requested, to
the technical service provider.
Sec. 652.36 Appeal of decertification decisions.
(a) Within 20 calendar days from the date of receipt of the State
Conservationist's decertification determination, the technical service
provider may appeal, in writing, to the Chief of NRCS. The written
appeal must state the reasons for appeal and any arguments in support of
those reasons. If the technical service provider fails to appeal, the
decision of the State Conservationist is final.
(b) Final decision. Within 30 calendar days of receipt of the
technical service provider's written appeal, the Chief or his designee,
will make a final determination, in writing, based upon the
administrative record and any additional information submitted to the
Chief by the technical service provider. The decision of the Chief, or
his designee, is final and not subject to further administrative review.
The Chief's determination will include the reasons for decertification,
the period of decertification, and the scope of decertification.
Sec. 652.37 Period of decertification.
The period of decertification will not exceed three years in
duration and will be decided by the decertifying official, either the
State Conservationist or Chief, as applicable, based upon their weighing
of all relevant facts and the seriousness of the reasons for
decertification, mitigating factors, if any, and the following general
guidelines:
(a) For failures in the provision of technical service for which
there are no mitigating factors, e.g., no remedial action by the
technical service provider, a maximum period of three years
decertification;
(b) For repeated failures in the provision of technical assistance
for which there are mitigating factors, e.g., the technical service
provider has taken remedial action to the satisfaction of NRCS, a
maximum period of one to two years decertification; and
(c) For a violation of Certification Agreement terms, e.g., failure
to possess technical competency for a listed practice, a period of one
year or less, if
[[Page 608]]
the technical service provider can master such competency within a year
period.
Sec. 652.38 Scope of decertification.
(a) When the technical service provider is a private sector entity
or public agency, the decertifying official may decertify the entire
organization, including all the individuals identified as authorized to
provide technical services under the auspices of such organization. The
decertifying official may also limit the scope of decertification, for
example, to one or more specifically named individuals identified as
authorized to provide technical services under the organization's
auspices or to an organizational element of such private sector entity
or public agency. The scope of decertification will be set forth in the
decertification determination and will be based upon the facts of each
decertification action, including whether actions of particular
individuals can be imputed to the larger organization.
(b) In cases where specific individuals are decertified only, an
entity or public agency must file within 10 calendar days an amended
Certification Agreement removing the decertified individual(s) from the
Certification Agreement. In addition, the entity or public agency must
demonstrate that, to the satisfaction of the State Conservationist, the
entity or public agency has taken affirmative steps to ensure that the
circumstances resulting in decertification have been addressed.
Sec. 652.39 Mitigating factors.
In considering whether to decertify, the period of decertification,
and scope of decertification, the deciding official will take into
consideration any mitigating factors. Examples of mitigating factors
include, but are not limited to the following:
(a) The technical service provider worked, in a timely manner, to
correct any deficiencies in the provision of technical service;
(b) The technical service provider took the initiative to bring any
deficiency in the provision of their technical services to the attention
of NRCS and sought NRCS advice to remediate the situation; and
(c) The technical service provider took affirmative steps to prevent
any failures in the provision of technical services from occurring in
the future.
Sec. 652.40 Effect of decertification.
(a) The Department will not make payment under a program contract
for the technical services of a decertified technical service provider
that were provided during the period of decertification. Likewise, NRCS
will not procure, or otherwise enter into an agreement for, the services
of a decertified technical service provider during the period of
decertification.
(b) National decertification list. NRCS shall maintain a current
list of decertified technical service providers. NRCS shall remove
decertified providers from the list of certified providers. Participants
may not hire a decertified technical service provider. It is the
participant's responsibility to check the decertified list before hiring
a technical service provider. Decertification of a technical service
provider in one State decertifies the technical service provider from
providing technical services under current programs in all States, the
Caribbean Area, and the Pacific Basin Area.
Sec. 652.41 Effect of filing deadlines.
A technical service provider's failure to meet the filing deadlines
under this subpart will result in the forfeiture of appeal rights. All
filings must be received by NRCS no later than the close of business (5
p.m.) the last day of the filing period.
Sec. 652.42 Recertification.
A decertified technical service provider may apply to be re-
certified under the certification provisions of this part after the
period of decertification has expired. A technical service provider may
not utilize the certification renewal process in an attempt to be
recertified after being decertified.
PART 653_TECHNICAL STANDARDS
Sec.
653.1 General.
653.2 Technical standards and criteria.
653.3 Adaptation of technical standards.
653.4 Availability of technical standards.
[[Page 609]]
Authority: 7 CFR 2.62.
Source: 43 FR 58079, Dec. 12, 1978, unless otherwise noted.
Sec. 653.1 General.
The Natural Resources Conservation Service (NRCS) is responsible for
the technical adequacy of conservation practices installed under all
NRCS programs, and those practices applied under programs administered
by the Agricultural Stabilization and Conservation Service (ASCS) where
NRCS has the technical responsibility. NRCS technical or financial
assistance will be provided when the practices are applied according to
established technical standards.
Sec. 653.2 Technical standards and criteria.
Technical standards and criteria have been established for all
conservation practices. They provide the guidance and direction needed
to assure that the practices meet the intended purpose and are of the
quality needed to assure lasting for the design life. Standards and
criteria are developed in consultation with universities, research
institutions, and individual industrial and private firms and
individuals. Research information and practical experience are used in
setting standards. Changes and new technical standards and criteria are
prepared in the same manner as set out above.
Sec. 653.3 Adaptation of technical standards.
Technical standards and criteria developed on a national basis may
require special adaptation to meet local needs. These adaptations must
be approved by the Administrator of the Natural Resources Conservation
Service or his designee.
Sec. 653.4 Availability of technical standards.
Information on technical standards used by NRCS is available at
field, area, or State offices of NRCS.
PART 654_OPERATION AND MAINTENANCE
Subpart A_General
Sec.
654.1 Purpose and scope.
654.2 Definitions.
Subpart B_Federal Financially-Assisted Projects
654.10 Operation and maintenance agreement.
654.11 Sponsor(s)' responsibility.
654.12 Financing operations and maintenance.
654.13 Designating responsibility for operation and maintenance.
654.14 Duration of sponsor(s)' responsibility.
654.15 Operation and maintenance.
654.16 Property management.
654.17 Inspection.
654.18 Natural Resources Conservation Service responsibility.
654.19 Plan of operation and maintenance.
654.20 Violations of operation and maintenance agreement.
Subpart C_Conservation Operations
654.30 Responsibility for operation and maintenance.
654.31 Performing operation and maintenance.
Subpart D_Emergency Watershed Protection
654.40 Responsibility for operation and maintenance.
654.41 Performance of operation and maintenance.
Subpart E_Great Plains Conservation Program
654.50 Responsibility for operation and maintenance.
Authority: Pub. L. 83-566, 68 Stat. 666, as amended (16 U.S.C. 1001-
1008). Sec. 1, Pub. L. 86-468, 74 Stat. 131, as amended (16 U.S.C.
1006a); sec. 2, Pub. L. 78-534, 58 Stat. 889 (33 U.S.C. 701a-1); sec.
13, Pub. L. 78-534, 58 Stat. 905; sec. 5, Pub. L. 93-251, 88 Stat. 15;
Pub. L. 87-703, 76 Stat. 607 (7 U.S.C. 1010-1011); Pub. L. 74-46, 49
Stat. 163 (16 U.S.C. 590a-f, q); Pub. L. 84-1021, 70 Stat. 1115, as
amended (16 U.S.C. 590p(b)); sec. 216, Pub. L. 81-516, 64 Stat. 184 (33
U.S.C. 701b-1); 7 CFR 2.62.
Source: 42 FR 58159, Nov. 8, 1977, unless otherwise noted.
[[Page 610]]
Subpart A_General
Sec. 654.1 Purpose and scope.
(a) This part sets forth the operation and maintenance requirements
pertaining to measures installed with Natural Resources Conservation
Service (NRCS) assistance. This includes measures installed under the
following programs:
(1) Federal financially-assisted projects.
(i) Watershed Protection and Flood Prevention (WP&FP). See part 622
of this title.
(ii) Flood Prevention (FP). See part 623 of this title.
(iii) Specifically authorized projects.
(iv) Resource Conservation and Development (RC&D).
(2) Conservation Operations (CO).
(3) Emergency Watershed Protection (EWP). See part 624 of this
title.
(4) Great Plains Conservation Program (GP). See part 631 of this
title.
(b) These regulations shall apply to all Federal financially-
assisted projects as set forth in subpart B for the duration of their
respective operation and maintenance agreements. However, this does not
relieve the sponsor(s) of any liability which may continue beyond the
evaluated life of the measure under Federal, State, and local laws.
Operation and maintenance agreements in effect prior to the effective
date of these regulations are not affected by these regulations.
Sec. 654.2 Definitions.
Evaluated life. The time period for which project or measure
benefits and costs have been evaluated. The evaluated life starts after
the last project measure of the evaluation unit has been completed.
Landuser. Those who individually or collectively use land as owner,
lessee, occupier, or by other arrangements which give them conservation
planning or implementation concern and responsibility for the land
involved.
Maintenance. The work and actions required to keep works of
improvement in a condition to function for their intended purpose and
the replacement of portions of project measures as specified in the O&M
agreement.
Operation. The administration, management, and performance of
services needed to insure the continued proper functioning of completed
project measures.
Operation and maintenance agreement. A written agreement between the
sponsor(s) and NRCS or other recipient(s) in which responsibilities and
actions are established for the operation, maintenance, replacement, and
inspection of project measures.
Plan of operation and maintenance. A detailed program of action to
provide for performing the operation and maintenance of a specific
project measure.
Project measures. An undertaking for watershed protection; flood
prevention; the conservation, development, utilization, and disposal of
water; the conservation and proper utilization of land; or a combination
thereof. The undertaking may consist of vegetative, structural, or
management measures or a combination thereof. Vegetative measures are
those measures involving only seedbed preparation and/or the planting of
vegetative material.
Public recreation and/or fish and wildlife facility. A project
measure or part thereof which (a) creates or improves the potential for
public recreational use and enjoyment, or (b) materially contributes to
the preservation, production, or harvest of fish and wildlife.
Sponsor. An agency or organization with authority to provide local
responsibility for a Federal financially-assisted local project under a
program administered by NRCS.
State Conservationist. The NRCS officer responsible for NRCS
activities within a particular State, the Commonwealth of Puerto Rico,
or the U.S. Virgin Islands.
Structural measures. Structural measures are those measures that are
excavated or constructed with concrete, earth, masonry, metal, rock, or
other materials, and associated vegetation.
[[Page 611]]
Subpart B_Federal Financially-Assisted Projects
Sec. 654.10 Operation and maintenance agreement.
A duly authorized official of the sponsor(s) must execute an O&M
agreement with NRCS prior to NRCS furnishing financial assistance.
Sec. 654.11 Sponsor(s)' responsibility.
(a) On non-Federal land, sponsor(s) are responsible for financing
and performing without cost to the Federal Government, needed operation
and maintenance (O&M) of project measures installed with Federal
financial assistance.
(b) The Federal agency administering Federal land involving project
measures is responsible either for performing or requiring the
performance of O&M on land administered by that agency. If project
measures benefit both Federal and non-Federal land or interests, the O&M
may be performed by the Federal agency, the sponsor(s), or both as
mutually agreed by the Federal agency, sponsor(s), and NRCS. If O&M of
project measures is performed by mutual agreement, the cost of O&M may
be shared by the Federal agency and sponsor(s) as agreed.
(c) The sponsor(s) shall obtain NRCS approval before modifying a
project measure of changing land use to fulfill a different purpose.
Sec. 654.12 Financing operations and maintenance.
Sources of funds needed to operate and maintain project measures for
the duration of the O&M agreement shall be identified in the watershed
or RC&D measure plan.
Sec. 654.13 Designating responsibility for operation and maintenance.
Those organizations or agencies responsible for the O&M of each
project measure shall be identified in the watershed or RC&D measure
plan.
Sec. 654.14 Duration of sponsor(s)' responsibility.
(a) Sponsor(s)' responsibility for O&M of a completed project
measure begins when a part of all of the contract installing such
measure is completed and accepted from the contractor. If the
installation of the project measure is performed by force account,
division of work, or performance of work methods, the sponsor(s)' O&M
responsibilities begin on the date the work or portion thereof is
completed as determined by NRCS, except for completed work located on
Federal lands which are subject to special-use permits. The O&M
agreement shall specify that O&M will continue through: (1) The
evaluated life of the project, or (2) the evaluated life of measures
that are economically evaluated as a unit, or (3) the useful life of
cost-shared measures that are for land conservation or land utilization.
The sponsor(s)' duties and liabilities for the measures under other
Federal and State laws are not affected by the expiration of the O&M
agreement.
(b) For project measures being installed in segments, the sponsor(s)
shall be responsible for O&M of completed and accepted segments.
However, the NRCS may share in the cost of repairing damages to a
completed segment when the damage is attributed to the continuation of
work on uncompleted segments of the measure or when due to the fact that
the measure was only partially completed.
Sec. 654.15 Operation and maintenance.
Sponsor(s) are to operate and maintain completed project measures
in:
(a) Compliance with applicable Federal, State, and local laws,
regulations, and ordinances.
(b) Compliance with any applicable conditions set forth in the
instruments by which the landrights were acquired for installing,
operating, and maintaining the project measures.
(c) A manner that will not significantly degrade the environment and
will permit project measures to serve the purpose for which they were
installed as set forth in the watershed or RC&D measure plan.
(d) Compliance with the time frames and O&M work items established
in the plan of O&M and inspection reports.
(e) Accordance with agreements with NRCS on admission charges and
user fees for public recreation and/or fish and wildlife facility.
Admission or user fees shall be charged only as necessary
[[Page 612]]
to produce revenues required to amortize the sponsor(s)' share of
installation costs and to provide adequate O&M for that portion of the
project measures pertaining to public recreation and/or fish and
wildlife facility. Sponsor(s)' admission or user fee charges require
prior NRCS approval throughout the life of the O&M agreement.
(f) Accordance with the schedule for withdrawal of water in water
impounding structures as specified in the watershed or RC&D measure plan
or other legal documents.
(g) A manner consistent with the project objectives.
Sec. 654.16 Property management.
Sponsor(s) are to:
(a) Use real property acquired in whole or in part with Federal
funds as long as needed for the purpose for which it was acquired and in
accordance with the O&M agreement. If real property acquired in whole or
in part with Federal funds is no longer needed for the purpose for which
it was acquired, the sponsor(s) shall obtain NRCS approval for future
use or disposition.
(b) Use nonexpendable personal property acquired in whole or in part
with Federal funds as long as needed for the purpose for which it was
acquired in accordance with the rules governing Federal grant property
(34 CFR part 256).
(c) Establish, adopt, and comply with a property management system
which meets the standards governing Federal grant property.
Sec. 654.17 Inspection.
(a) Sponsor(s) are to make periodic and special inspections of
installed project measures as provided in the plan of O&M. For
structural measures, inspections are to be made at least annually and
after each major storm or occurrence of any unusual condition that might
adversely affect the project measures. At the discretion of the State
Conservationist, NRCS may assist sponsor(s) with their inspections. NRCS
or land-administering agencies may make independent inspections at any
time during the period covered by the O&M agreement.
(b) Sponsor(s) are to maintain a written record of each inspection
and furnish NRCS and land-administering agencies a copy of that record.
The record should indentify items inspected, O&M work that may be
needed, a time frame to do the work, and the date of the inspection. The
NRCS and land-administering agencies will provide the sponsor(s) a copy
of a similar record of independent inspections.
(c) The sponsor(s) shall perform the O&M work listed as needed in
the inspection reports within the time frame established for each item
of work. Failure to perform O&M work will be considered a violation of
the O&M agreement and will be handled in accordance with Sec. 654.20.
(d) Sponsor(s) are to maintain a written record of work performed
which is listed in the inspection report and a record of other
significant O&M activity. The record will identify the measure, item of
work, cost of performance, and date completed.
(e) Sponsor(s)' records relative to the project shall be made
available to NRCS for examination.
Sec. 654.18 Natural Resources Conservation Service responsibility.
The Natural Resources Conservation Service will assist the
sponsor(s) in developing a watershed or RC&D measure plan which includes
a description of O&M work and estimated cost, assist in the preparation
of O&M agreements and plans of O&M, enter into O&M agreements with the
sponsor(s), and notify the sponsor(s) of observed failures to comply
with the O&M agreement.
Sec. 654.19 Plan of operation and maintenance.
(a) The plan for O&M shall be incorporated into and made a part of
the O&M agreement. A separate plan of O&M shall be prepared for each
project measure that is expected to a have a unique O&M need. Two or
more measures with similar O&M needs may be included in a single plan
for O&M.
(b) The plan of O&M shall include the known and anticipated items of
O&M, an explanation of how the O&M activities may be carried out, a
general time frame for making O&M inspections and
[[Page 613]]
for completing the needed O&M work, and the records and reports deemed
appropriate by the sponsor(s) and NRCS.
Sec. 654.20 Violations of operation and maintenance agreement.
(a) The State Conservationist shall investigate alleged sponsor
violations of the O&M agreement. If the State Conservationist determines
that a violation has occurred that may prevent the project measure from
functioning as intended, create a health or safety hazard, or prevent
the accrual of project benefits, he shall provide sponsor(s) written
notification.
(b) If the sponsor(s) fail to comply with the O&M agreement or fail
to take corrective action, NRCS may notify authorities having
appropriate jurisdiction, withhold further assistance to the project,
require the sponsor(s) to reimburse the government for the NRCS share of
the cost of the project, and/or pursue other action authorized by the
O&M agreement or law.
Subpart C_Conservation Operations
Sec. 654.30 Responsibility for operation and maintenance.
The land user is responsible for O&M of soil and water conservation
measures installed with NRCS assistance provided through soil, water,
and other conservation districts.
Sec. 654.31 Performing operation and maintenance.
The method of performing O&M is to be at the option of the land
user. The NRCS, working through districts, will furnish information and
technical assistance as needed and requested to the extent NRCS
resources permit.
Subpart D_Emergency Watershed Protection
Sec. 654.40 Responsibility for operation and maintenance.
(a) Non-Federal lands. The need for an O&M agreement will be
determined by the State Conservationist. Where an O&M agreement is
necessary, the sponsor(s) will provide the O&M and adopt standards for
Federal grant property (34 CFR part 256). Where no O&M agreement is
necessary, other arrangements will be made for complying with Federal
property management.
(b) Federal lands. The Federal agency administering the Federal land
is responsible for operating and maintaining emergency measures
installed on Federal land.
Sec. 654.41 Performance of operation and maintenance.
(a) Arrangement. O&M is a prerequisite for approval of Federal
emergency assistance when:
(1) The emergency measure needs to be operated and maintained in
order to serve its intended purpose, or
(2) The emergency measure needs to be operated and maintained to
insure that it will not become hazardous.
(b) Time of operation and maintenance. The sponsor(s)' obligations
for O&M begin when the measure is installed and extend for the duration
of the time required for the emergency measure to serve the purpose for
which it is installed.
(c) Performance. Operation and maintenance is to be performed in a
manner that will protect the environment and otherwise comply with NRCS,
State, and local requirements. The method of performing O&M is at the
option of the sponsor(s).
Subpart E_Great Plains Conservation Program
Sec. 654.50 Responsibility for operation and maintenance.
Responsibility for practices under the Great Plains Conservation
Program are contained in Sec. 631.10 of this chapter.
PART 655 [RESERVED]
PART 656_PROCEDURES FOR THE PROTECTION OF ARCHEOLOGICAL AND HISTORICAL
PROPERTIES ENCOUNTERED IN NRCS-ASSISTED PROGRAMS
Sec.
656.1 Purpose.
656.2 Archeological and historical laws and Executive orders applicable
to NRCS-assisted programs.
656.3 Policy.
[[Page 614]]
656.4-656.9 [Reserved]
Authority: Pub. L. 86-523, 74 Stat. 220, as amended (16 U.S.C. 469
et seq.); Pub. L. 89-665, 80 Stat. 915, as amended (16 U.S.C. 470 et
seq.); 7 CFR 2.62.
Source: 42 FR 36804, July 18, 1977, unless otherwise noted.
Sec. 656.1 Purpose.
This part prescribes Natural Resources Conservation Service (NRCS)
policy, procedures, and guidelines for the implementation of
archeological and historical laws and appropriate executive orders for
administering NRCS programs.
Sec. 656.2 Archeological and historical laws and Executive orders
applicable to NRCS-assisted programs.
(a) The Act of June 27, 1960, relating to the preservation of
historical and archeological data, Pub. L. 86-523, 74 Stat. 220, as
amended May 24, 1974; Pub. L. 93-291, 88 Stat. 174 (16 U.S.C. 469 et
seq.), provides for the preservation of historical and archeological
materials or data, including relics and specimens, that might otherwise
be lost or destroyed as a result of any Federal or federally-assisted or
licensed project, activity, or program.
(b) The National Historic Preservation Act, Pub. L. 89-665, 80 Stat.
915, as amended, (16 U.S.C. 470 et seq.), authorizes the Secretary of
the Interior to maintain and expand a National Register of Historic
Places (NRHP), including historic districts, sites, buildings,
structures, and objects that are significant in American history,
architecture, archeology, and culture. This law also establishes the
Advisory Council on Historic Preservation (ACHP), to be appointed by the
President. Section 106 of this Act (16 U.S.C. 470f), requires that prior
to the approval of any Federal or federally-assisted or licensed
undertaking, the Federal agency shall afford the ACHP a reasonable
opportunity to comment, if properties listed in or eligible for listing
in NRHP are affected.
(c) Executive Order 11593 (36 FR 8921, 3 CFR 1971 Comp. P. 154),
Protection and Enhancement of the Cultural Environment, provides that
the Federal government shall furnish leadership in preserving,
restoring, and maintaining the historical and cultural environment of
the nation, and that Federal agencies shall administer the cultural
properties under their control in a spirit of stewardship and
trusteeship for future generations; initiate measures necessary to
direct their policies, plans, and programs in such a way that federally
owned sites, structures, and objects of historical, architectural, or
archeological significance are preserved, restored, and maintained.
Section 1(3) directs that agencies institute procedures to assure that
Federal plans and programs contribute to the preservation and
enhancement of non-federally owned sites, structures, and objects of
historical, architectural, or archeological significance in consultation
with the ACHP.
Sec. 656.3 Policy.
(a) NRCS recognizes that significant historical, archeological, and
architectural resources are an important part of our national heritage,
the protection of which requires careful consideration in this agency's
project planning and implementation process.
(b) NRCS will take reasonable precautions to avoid damaging any
significant historic, cultural, or natural aspects of our national
heritage and will work with the National Park Service (NPS) and the
Advisory Council on Historic Preservation (ACHP) in identifying and
seeking to avoid or mitigate adverse effects of NRCS-assisted projects
on the Nation's significant cultural resources. The procedures contained
in this part have been developed to comply with sections 1(3) and 2(c)
of Executive Order 11593.
Sec. Sec. 656.4-656.9 [Reserved]
PART 657_PRIME AND UNIQUE FARMLANDS
Subpart A_Important Farmlands Inventory
Sec.
657.1 Purpose.
657.2 Policy.
657.3 Applicability.
657.4 NRCS responsibilities.
657.5 Identification of important farmlands.
Authority: 7 U.S.C. 1010a; 16 U.S.C. 590a-590f; 42 U.S.C. 3271-3274.
Source: 43 FR 4031, Jan. 31, 1978, unless otherwise noted.
[[Page 615]]
Subpart A_Important Farmlands Inventory
Sec. 657.1 Purpose.
NRCS is concerned about any action that tends to impair the
productive capacity of American agriculture. The Nation needs to know
the extent and location of the best land for producing food, feed, fiber
forage, and oilseed crops. In addition to prime and unique farmlands,
farmlands that are of statewide and local importance for producing these
crops also need to be identified.
Sec. 657.2 Policy.
It is NRCS policy to make and keep current an inventory of the prime
farmland and unique farmland of the Nation. This inventory is to be
carried out in cooperation with other interested agencies at the
National, State, and local levels of government. The objective of the
inventory is to identify the extent and location of important rural
lands needed to produce food, feed, fiber, forage, and oilseed crops.
Sec. 657.3 Applicability.
Inventories made under this memorandum do not constitute a
designation of any land area to a specific land use. Such designations
are the responsibility of appropriate local and State officials.
Sec. 657.4 NRCS responsibilities.
(a) State Conservationist. Each NRCS State Conservationist is to:
(1) Provide leadership for inventories of important farmlands for
the State, county, or other subdivision of the State. Each is to work
with appropriate agencies of State government and others to establish
priorities for making these inventories.
(2) Identify the soil mapping units within the State that qualify as
prime. In doing this, State Conservationists, in consultation with the
cooperators of the National Cooperative Soil Survey, have the
flexibility to make local deviation from the permeability criterion or
to be more restrictive for other specific criteria in order to assure
the most accurate identification of prime farmlands for a State. Each is
to invite representatives of the Governor's office, agencies of the
State government, and others to identify farmlands of statewide
importance and unique farmlands that are to be inventoried within the
framework of this memorandum.
(3) Prepare a statewide list of:
(i) Soil mapping units that meet the criteria for prime farmland;
(ii) Soil mapping units that are farmlands of statewide importance
if the criteria used were based on soil information; and
(iii) Specific high-value food and fiber crops that are grown and,
when combined with other favorable factors, qualify lands to meet the
criteria for unique farmlands. Copies are to be furnished to NRCS Field
Offices and to National Soil Survey Center. (see 7 CFR 600.2(c), 600.6)
(4) Coordinate soil mapping units that qualify as prime farmlands
with adjacent States, including Major Land Resource Area Offices (see 7
CFR 600.4, 600.7) responsible for the soil series. Since farmlands of
statewide importance and unique farmlands are designated by others at
the State level, the soil mapping units and areas identified need not be
coordinated among States.
(5) Instruct NRCS District Conservationists to arrange local review
of lands identified as prime, unique, and additional farmlands of
statewide importance by Conservation Districts and representatives of
local agencies. This review is to determine if additional farmland
should be identified to meet local decisionmaking needs.
(6) Make and publish each important farmland inventory on a base map
of national map accuracy at an intermediate scale of 1:50,000 or
1:100,000. State Conservationists who need base maps of other scales are
to submit their requests with justification to the Chief for
consideration.
(b) National Soil Survey Center. The National Soil Survey Center is
to provide requested technical assistance to State Conservationists and
Major Land Resource Area Offices in inventorying prime and unique
farmlands (see 7 CFR 600.2(c)(1), 600.4, 600.7). This includes reviewing
statewide lists of soil mapping units that meet the criteria for prime
farmlands and resolving coordination
[[Page 616]]
problems that may occur among States for specific soil series or soil
mapping units.
(c) National Office. The Deputy Chief for Soil Survey and Resource
Assessment (see 7 CFR 600.2(b)(3)) is to provide national leadership in
preparing guidelines for inventorying prime farmlands and for national
statistics and reports of prime farmlands.
[43 FR 4031, Jan. 31, 1978, as amended at 65 FR 57538, Sept. 25, 2000]
Sec. 657.5 Identification of important farmlands.
(a) Prime farmlands--(1) General. Prime farmland is land that has
the best combination of physical and chemical characteristics for
producing food, feed, forage, fiber, and oilseed crops, and is also
available for these uses (the land could be cropland, pastureland,
rangeland, forest land, or other land, but not urban built-up land or
water). It has the soil quality, growing season, and moisture supply
needed to economically produce sustained high yields of crops when
treated and managed, including water management, according to acceptable
farming methods. In general, prime farmlands have an adequate and
dependable water supply from precipitation or irrigation, a favorable
temperature and growing season, acceptable acidity or alkalinity,
acceptable salt and sodium content, and few or no rocks. They are
permeable to water and air. Prime farmlands are not excessively erodible
or saturated with water for a long period of time, and they either do
not flood frequently or are protected from flooding. Examples of soils
that qualify as prime farmland are Palouse silt loam, 0 to 7 percent
slopes; Brookston silty clay loam, drained; and Tama silty clay loam, 0
to 5 percent slopes.
(2) Specific criteria. Prime farmlands meet all the following
criteria: Terms used in this section are defined in USDA publications:
``Soil Taxonomy, Agriculture Handbook 436''; ``Soil Survey Manual,
Agriculture Handbook 18''; ``Rainfall-erosion Losses From Cropland,
Agriculture Handbook 282''; ``Wind Erosion Forces in the United States
and Their Use in Predicting Soil Loss, Agriculture Handbook 346''; and
``Saline and Alkali Soils, Agriculture Handbook 60.''
(i) The soils have:
(A) Aquic, udic, ustic, or xeric moisture regimes and sufficient
available water capacity within a depth of 40 inches (1 meter), or in
the root zone (root zone is the part of the soil that is penetrated or
can be penetrated by plant roots) if the root zone is less than 40
inches deep, to produce the commonly grown cultivated crops (cultivated
crops include, but are not limited to, grain, forage, fiber, oilseed,
sugar beets, sugarcane, vegetables, tobacco, orchard, vineyard, and bush
fruit crops) adapted to the region in 7 or more years out of 10; or
(B) Xeric or ustic moisture regimes in which the available water
capacity is limited, but the area has a developed irrigation water
supply that is dependable (a dependable water supply is one in which
enough water is available for irrigation in 8 out of 10 years for the
crops commonly grown) and of adequate quality; or,
(C) Aridic or torric moisture regimes and the area has a developed
irrigation water supply that is dependable and of adequate quality; and,
(ii) The soils have a temperature regime that is frigid, mesic,
thermic, or hyperthermic (pergelic and cryic regimes are excluded).
These are soils that, at a depth of 20 inches (50 cm), have a mean
annual temperature higher than 32 deg.F (0 deg.C). In addition, the
mean summer temperature at this depth in soils with an O horizon is
higher than 47 deg.F (8 deg.C); in soils that have no O horizon, the
mean summer temperature is higher than 59 deg.F (15 deg.C); and,
(iii) The soils have a pH between 4.5 and 8.4 in all horizons within
a depth of 40 inches (1 meter) or in the root zone if the root zone is
less than 40 inches deep; and,
(iv) The soils either have no water table or have a water table that
is maintained at a sufficient depth during the cropping season to allow
cultivated crops common to the area to be grown; and,
(v) The soils can be managed so that, in all horizons within a depth
of 40 inches (1 meter) or in the root zone if the root zone is less than
40 inches
[[Page 617]]
deep, during part of each year the conductivity of the saturation
extract is less than 4 mmhos/cm and the exchangeable sodium percentage
(ESP) is less than 15; and,
(vi) The soils are not flooded frequently during the growing season
(less often than once in 2 years); and,
(vii) The product of K (erodibility factor) x percent slope is less
than 2.0, and the product of I (soils erodibility) x C (climatic factor)
does not exceed 60; and
(viii) The soils have a permeability rate of at least 0.06 inch
(0.15 cm) per hour in the upper 20 inches (50 cm) and the mean annual
soil temperature at a depth of 20 inches (50 cm) is less than 59 deg.F
(15 deg.C); the permeability rate is not a limiting factor if the mean
annual soil temperature is 59 deg.F (15 deg.C) or higher; and,
(ix) Less than 10 percent of the surface layer (upper 6 inches) in
these soils consists of rock fragments coarser than 3 inches (7.6 cm).
(b) Unique farmland--(1) General. Unique farmland is land other than
prime farmland that is used for the production of specific high value
food and fiber crops. It has the special combination of soil quality,
location, growing season, and moisture supply needed to economically
produce sustained high quality and/or high yields of a specific crop
when treated and managed according to acceptable farming methods.
Examples of such crops are citrus, tree nuts, olives, cranberries,
fruit, and vegetables.
(2) Specific characteristics of unique farmland. (i) Is used for a
specific high-value food or fiber crop; (ii) Has a moisture supply that
is adequate for the specific crop; the supply is from stored moisture,
precipitation, or a developed-irrigation system; (iii) Combines
favorable factors of soil quality, growing season, temperature,
humidity, air drainage, elevation, aspect, or other conditions, such a
nearness to market, that favor the growth of a specific food or fiber
crop.
(c) Additional farmland of statewide importance. This is land, in
addition to prime and unique farmlands, that is of statewide importance
for the production of food, feed, fiber, forage, and oil seed crops.
Criteria for defining and delineating this land are to be determined by
the appropriate State agency or agencies. Generally, additional
farmlands of statewide importance include those that are nearly prime
farmland and that economically produce high yields of crops when treated
and managed according to acceptable farming methods. Some may produce as
high a yield as prime farmlands if conditions are favorable. In some
States, additonal farmlands of statewide importance may include tracts
of land that have been designated for agriculture by State law.
(d) Additional farmland of local importance. In some local areas
there is concern for certain additional farmlands for the production of
food, feed, fiber, forage, and oilseed crops, even though these lands
are not identified as having national or statewide importance. Where
appropriate, these lands are to be identified by the local agency or
agencies concerned. In places, additional farmlands of local importance
may include tracts of land that have been designated for agriculture by
local ordinance.
PART 658_FARMLAND PROTECTION POLICY ACT
Sec.
658.1 Purpose.
658.2 Definitions.
658.3 Applicability and exemptions.
658.4 Guidelines for use of criteria.
658.5 Criteria.
658.6 Technical assistance.
658.7 USDA assistance with Federal agencies' reviews of policies and
procedures.
Authority: 7 U.S.C. 4201-4209.
Source: 49 FR 27724, July 5, 1984, unless otherwise noted.
Sec. 658.1 Purpose.
This part sets out the criteria developed by the Secretary of
Agriculture, in cooperation with other Federal agencies, pursuant to
section 1541(a) of the Farmland Protection Policy Act (FPPA or the Act)
7 U.S.C. 4202(a). As required by section 1541(b) of the Act, 7 U.S.C.
4202(b), Federal agencies are (a) to use the criteria to identify and
take into account the adverse effects of their programs on the
preservation of farmland, (b) to consider alternative
[[Page 618]]
actions, as appropriate, that could lessen adverse effects, and (c) to
ensure that their programs, to the extent practicable, are compatible
with State and units of local government and private programs and
policies to protect farmland. Guidelines to assist agencies in using the
criteria are included in this part. The Department of Agriculture
(hereinafter USDA) may make available to States, units of local
government, individuals, organizations, and other units of the Federal
Government, information useful in restoring, maintaining, and improving
the quantity and quality of farmland.
Sec. 658.2 Definitions.
(a) Farmland means prime or unique farmlands as defined in section
1540(c)(1) of the Act or farmland that is determined by the appropriate
state or unit of local government agency or agencies with concurrence of
the Secretary to be farmland of statewide of local importance.
``Farmland'' does not include land already in or committed to urban
development or water storage. Farmland ``already in'' urban development
or water storage includes all such land with a density of 30 structures
per 40-acre area. Farmland already in urban development also includes
lands identified as ``urbanized area'' (UA) on the Census Bureau Map, or
as urban area mapped with a ``tint overprint'' on the USGS topographical
maps, or as ``urban-built-up'' on the USDA Important Farmland Maps.
Areas shown as white on the USDA Important Farmland Maps are not
``farmland'' and, therefore, are not subject to the Act. Farmland
``committed to urban development or water storage'' includes all such
land that receives a combined score of 160 points or less from the land
evaluation and site assessment criteria.
(b) Federal agency means a department, agency, independent
commission, or other unit of the Federal Government.
(c) Federal program means those activities or responsibilities of a
Federal agency that involve undertaking, financing, or assisting
construction or improvement projects or acquiring, managing, or
disposing of Federal lands and facilities.
(1) The term ``Federal program'' does not include:
(i) Federal permitting, licensing, or rate approval programs for
activities on private or non-Federal lands; and
(ii) Construction or improvement projects that were beyond the
planning stage and were in either the active design or construction
state on August 4, 1984.
(2) For the purposes of this section, a project is considered to be
``beyond the planning stage and in either the active design or
construction state on August 4, 1984'' if, on or before that date,
actual construction of the project had commenced or:
(i) Acquisition of land or easements for the project had occurred or
all required Federal agency planning documents and steps were completed
and accepted, endorsed, or approved by the appropriate agency;
(ii) A final environmental impact statement was filed with the
Environmental Protection Agency or an environmental assessment was
completed and a finding of no significant impact was executed by the
appropriate agency official; and
(iii) The engineering or architectural design had begun or such
services had been secured by contract. The phrase ``undertaking,
financing, or assisting construction or improvement projects'' includes
providing loan guarantees or loan insurance for such projects and
includes the acquisition, management and disposal of land or facilities
that a Federal agency obtains as the result of foreclosure or other
actions taken under a loan or other financial assistance provided by the
agency directly and specifically for that property. For the purposes of
this section, the phrase ``acquiring, managing, or disposing of Federal
lands and facilities'' refers to lands and facilities that are acquired,
managed, or used by a Federal agency specifically in support of a
Federal activity or program, such as national parks, national forests,
or military bases, and does not refer to lands and facilities that are
acquired by a Federal agency as the incidental result of actions by the
agency that give the agency temporary custody or ownership of the lands
or facilities, such as
[[Page 619]]
acquisition pursuant to a lien for delinquent taxes, the exercise of
conservatorship or receivership authority, or the exercise of civil or
criminal law enforcement forfeiture or seizure authority.
(d) State or local government policies or programs to protect
farmland include: Zoning to protect farmland; agricultural land
protection provisions of a comprehensive land use plan which has been
adopted or reviewed in its entirety by the unit of local government in
whose jurisdiction it is operative within 10 years preceding proposed
implementation of the particular Federal program; completed purchase or
acquisition of development rights; completed purchase or acquisition of
conservation easements; prescribed procedures for assessing agricultural
viability of sites proposed for conversion; completed agricultural
districting and capital investments to protect farmland.
(e) Private programs to protect farmland means programs for the
protection of farmland which are pursuant to and consistent with State
and local government policies or programs to protect farmland of the
affected State and unit of local government, but which are operated by a
nonprofit corporation, foundation, association, conservancy, district,
or other not-for-profit organization existing under State or Federal
laws. Private programs to protect farmland may include: (1) Acquiring
and holding development rights in farmland and (2) facilitating the
transfer of development rights of farmland.
(f) Site means the location(s) that would be converted by the
proposed action(s).
(g) Unit of local government means the government of a county,
municipality, town, township, village, or other unit of general
government below the State level, or a combination of units of local
government acting through an areawide agency under a State law or an
agreement for the formulation of regional development policies and
plans.
[49 FR 27724, July 5, 1984, as amended at 59 FR 31117, June 17, 1994]
Sec. 658.3 Applicability and exemptions.
(a) Section 1540(b) of the Act, 7 U.S.C. 4201(b), states that the
purpose of the Act is to minimize the extent to which Federal programs
contribute to the unnecessary and irreversible conversion of farmland to
nonagricultural uses. Conversion of farmland to nonagricultural uses
does not include the construction of on-farm structures necessary for
farm operations. Federal agencies can obtain assistance from USDA in
determining whether a proposed location or site meets the Act's
definition of farmland. The USDA Natural Resources Conservation Service
(NRCS) field office serving the area will provide the assistance. Many
State or local government planning offices can also provide this
assistance.
(b) Acquisition or use of farmland by a Federal agency for national
defense purposes is exempted by section 1547(b) of the Act, 7 U.S.C.
4208(b).
(c) The Act and these regulations do not authorize the Federal
Government in any way to regulate the use of private or non-Federal
land, or in any way affect the property rights of owners of such land.
In cases where either a private party or a non-Federal unit of
government applies for Federal assistance to convert farmland to a
nonagricultural use, the Federal agency should use the criteria set
forth in this part to identify and take into account any adverse effects
on farmland of the assistance requested and develop alternative actions
that would avoid or mitigate such adverse effects. If, after
consideration of the adverse effects and suggested alternatives, the
landowners want to proceed with conversion, the Federal agency, on the
basis of the analysis set forth in Sec. 658.4 and any agency policies or
procedures for implementing the Act, may provide or deny the requested
assistance. Only assistance and actions that would convert farmland to
nonagricultural uses are subject to this Act. Assistance and actions
related to the purchase, maintenance, renovation, or replacement of
existing structures and sites converted prior to the time of an
application for assistance from a Federal agency, including assistance
and actions related to the construction of minor new ancillary
structures (such as garages or sheds), are not subject to the Act.
(d) Section 1548 of the Act, as amended, 7 U.S.C. 4209, states that
the Act
[[Page 620]]
shall not be deemed to provide a basis for any action, either legal or
equitable, by any person or class of persons challenging a Federal
project, program, or other activity that may affect farmland. Neither
the Act nor this rule, therefore, shall afford any basis for such an
action. However, as further provided in section 1548, the governor of an
affected state, where a state policy or program exists to protect
farmland, may bring an action in the Federal district court of the
district where a Federal program is proposed to enforce the requirements
of section 1541 of the Act, 7 U.S.C. 4202, and regulations issued
pursuant to that section.
[49 FR 27724, July 5, 1984, as amended at 59 FR 31117, June 17, 1994]
Sec. 658.4 Guidelines for use of criteria.
As stated above and as provided in the Act, each Federal agency
shall use the criteria provided in Sec. 658.5 to identify and take into
account the adverse effects of Federal programs on the protection of
farmland. The agencies are to consider alternative actions, as
appropriate, that could lessen such adverse effects, and assure that
such Federal programs, to the extent practicable, are compatible with
State, unit of local government and private programs and policies to
protect farmland. The following are guidelines to assist the agencies in
these tasks:
(a) An agency may determine whether or not a site is farmland as
defined in Sec. 658.2(a) or the agency may request that NRCS make such a
determination. If an agency elects not to make its own determination, it
should make a request to NRCS on Form AD-1006, the Farmland Conversion
Impact Rating Form, available at NRCS offices, for determination of
whether the site is farmland subject to the Act. If neither the entire
site nor any part of it are subject to the Act, then the Act will not
apply and NRCS will so notify the agency. If the site is determined by
NRCS to be subject to the Act, then NRCS will measure the relative value
of the site as farmland on a scale of 0 to 100 according to the
information sources listed in Sec. 658.5(a). NRCS will respond to these
requests within 10 working days of their receipt except that in cases
where a site visit or land evaluation system design is needed, NRCS will
respond in 30 working days. In the event that NRCS fails to complete its
response within the required period, if further delay would interfere
with construction activities, the agency should proceed as though the
site were not farmland.
(b) The Form AD 1006, returned to the agency by NRCS will also
include the following incidental information: The total amount of
farmable land (the land in the unit of local government's jurisdiction
that is capable of producing the commonly grown crop); the percentage of
the jurisdiction that is farmland covered by the Act; the percentage of
farmland in the jurisdiction that the project would convert; and the
percentage of farmland in the local government's jurisdiction with the
same or higher relative value than the land that the project would
convert. These statistics will not be part of the criteria scoring
process, but are intended simply to furnish additional background
information to Federal agencies to aid them in considering the effects
of their projects on farmland.
(c) After the agency receives from NRCS the score of a site's
relative value as described in Sec. 658.4(a) and then applies the site
assessment criteria which are set forth in Sec. 658.5 (b) and (c), the
agency will assign to the site a combined score of up to 260 points,
composed of up to 100 points for relative value and up to 160 points for
the site assessment. With this score the agency will be able to identify
the effect of its programs on farmland, and make a determination as to
the suitability of the site for protection as farmland. Once this score
is computed, USDA recommends:
(1) Sites with the highest combined scores be regarded as most
suitable for protection under these criteria and sites with the lowest
scores, as least suitable.
(2) Sites receiving a total score of less than 160 need not be given
further consideration for protection and no additional sites need to be
evaluated.
(3) Sites receiving scores totaling 160 or more be given
increasingly higher levels of consideration for protection.
(4) When making decisions on proposed actions for sites receiving
scores
[[Page 621]]
totaling 160 or more, agency personnel consider:
(i) Use of land that is not farmland or use of existing structures;
(ii) Alternative sites, locations and designs that would serve the
proposed purpose but convert either fewer acres of farmland or other
farmland that has a lower relative value;
(iii) Special siting requirements of the proposed project and the
extent to which an alternative site fails to satisfy the special siting
requirements as well as the originally selected site.
(d) Federal agencies may elect to assign the site assessment
criteria relative weightings other than those shown in Sec. 658.5 (b)
and (c). If an agency elects to do so, USDA recommends that the agency
adopt its alternative weighting system (1) through rulemaking in
consultation with USDA, and (2) as a system to be used uniformly
throughout the agency. USDA recommends that the weightings stated in
Sec. 658.5 (b) and (c) be used until an agency issues a final rule to
change the weightings.
(e) It is advisable that evaluations and analyses of prospective
farmland conversion impacts be made early in the planning process before
a site or design is selected, and that, where possible, agencies make
the FPPA evaluations part of the National Environmental Policy Act
(NEPA) process. Under the agency's own NEPA regulations, some categories
of projects may be excluded from NEPA which may still be covered under
the FPPA. Section 1540(c)(4) of the Act exempts projects that were
beyond the planning stage and were in either the active design or
construction state on the effective date of the Act. Section 1547(b)
exempts acquisition or use of farmland for national defense purposes.
There are no other exemptions of projects by category in the Act.
(f) Numerous States and units of local government are developing and
adopting Land Evaluation and Site Assessment (LESA) systems to evaluate
the productivity of agricultural land and its suitability for conversion
to nonagricultural use. Therefore, States and units of local government
may have already performed an evaluation using criteria similar to those
contained in this rule applicable to Federal agencies. USDA recommends
that where sites are to be evaluated within a jurisdiction having a
State or local LESA system that has been approved by the governing body
of such jurisdiction and has been placed on the NRCS State
conservationist's list as one which meets the purpose of the FPPA in
balance with other public policy objectives, Federal agencies use that
system to make the evaluation.
(g) To meet reporting requirements of section 1546 of the Act, 7
U.S.C. 4207, and for data collection purposes, after the agency has made
a final decision on a project in which one or more of the alternative
sites contain farmland subject to the FPPA, the agency is requested to
return a copy of the Form AD-1006, which indicates the final decision of
the agency, to the NRCS field office.
(h) Once a Federal agency has performed an analysis under the FPPA
for the conversion of a site, that agency's, or a second Federal
agency's determination with regard to additional assistance or actions
on the same site do not require additional redundant FPPA analysis.
[49 FR 27724, July 5, 1984, as amended at 59 FR 31118, June 17, 1994]
Sec. 658.5 Criteria.
This section states the criteria required by section 1541(a) of the
Act, 7 U.S.C. 4202(a). The criteria were developed by the Secretary of
Agriculture in cooperation with other Federal agencies. They are in two
parts, (1) the land evaluation criterion, relative value, for which NRCS
will provide the rating or score, and (2) the site assessment criteria,
for which each Federal agency must develop its own ratings or scores.
The criteria are as follows:
(a) Land Evaluation Criterion--Relative Value. The land evaluation
criterion is based on information from several sources including
national cooperative soil surveys or other acceptable soil surveys, NRCS
field office technical guides, soil potential ratings or soil
productivity ratings, land capability classifications, and important
farmland determinations. Based on this information, groups of soils
within a local government's jurisdiction will be
[[Page 622]]
evaluated and assigned a score between 0 to 100, representing the
relative value, for agricultural production, of the farmland to be
converted by the project compared to other farmland in the same local
government jurisdiction, This score will be the Relative Value Rating on
Form AD 1006.
(b) Site Assessment Criteria. Federal agencies are to use the
following criteria to assess the suitability of each proposed site or
design alternative for protection as farmland along with the score from
the land evaluation criterion described in Sec. 658.5(a). Each criterion
will be given a score on a scale of 0 to the maximum points shown.
Conditions suggesting top, intermediate and bottom scores are indicated
for each criterion. The agency would make scoring decisions in the
context of each proposed site or alternative action by examining the
site, the surrounding area, and the programs and policies of the State
or local unit of government in which the site is located. Where one
given location has more than one design alternative, each design should
be considered as an alternative site. The site assessment criteria are:
(1) How much land is in nonurban use within a radius of 1.0 mile
from where the project is intended?
More than 90 percent--15 points
90 to 20 percent--14 to 1 point(s)
Less than 20 percent--0 points
(2) How much of the perimeter of the site borders on land in
nonurban use?
More than 90 percent--10 points
90 to 20 percent--9 to 1 point(s)
Less than 20 percent--0 points
(3) How much of the site has been farmed (managed for a scheduled
harvest or timber activity) more than 5 of the last 10 years?
More than 90 percent--20 points
90 to 20 percent--19 to 1 points(s)
Less than 20 percent--0 points
(4) Is the site subject to State or unit of local government
policies or programs to protect farmland or covered by private programs
to protect farmland?
Site is protected--20 points
Site is not protected--0 points
(5) How close is the site to an urban built-up area?
The site is 2 miles or more from an urban built-up area--15 points
The site is more than 1 mile but less than 2 miles from an urban built-
up area--10 points
The site is less than 1 mile from, but is not adjacent to an urban
built-up area--5 points
The site is adjacent to an urban built-up area--0 points
(6) How close is the site to water lines, sewer lines and/or other
local facilities and services whose capacities and design would promote
nonagricultural use?
None of the services exist nearer than 3 miles from the site--15 points
Some of the services exist more than 1 but less than 3 miles from the
site--10 points
All of the services exist within \1/2\ mile of the site--0 points
(7) Is the farm unit(s) containing the site (before the project) as
large as the average-size farming unit in the county? (Average farm
sizes in each county are available from the NRCS field offices in each
State. Data are from the latest available Census of Agriculture, Acreage
of Farm Units in Operation with $1,000 or more in sales.)
As large or larger--10 points
Below average--deduct 1 point for each 5 percent below the average, down
to 0 points if 50 percent or more below average--9 to 0 points
(8) If this site is chosen for the project, how much of the
remaining land on the farm will become non-farmable because of
interference with land patterns?
Acreage equal to more than 25 percent of acres directly converted by the
project--10 points
Acreage equal to between 25 and 5 percent of the acres directly
converted by the project--9 to 1 point(s)
Acreage equal to less than 5 percent of the acres directly converted by
the project--0 points
(9) Does the site have available adequate supply of farm support
services and markets, i.e., farm suppliers, equipment dealers,
processing and storage facilities and farmer's markets?
All required services are available--5 points
[[Page 623]]
Some required services are available--4 to 1 point(s)
No required services are available--0 points
(10) Does the site have substantial and well-maintained on-farm
investments such as barns, other storage buildings, fruit trees and
vines, field terraces, drainage, irrigation, waterways, or other soil
and water conservation measures?
High amount of on-farm investment--20 points
Moderate amount of on-farm investment--19 to 1 point(s)
No on-farm investment--0 points
(11) Would the project at this site, by converting farmland to
nonagricultural use, reduce the demand for farm support services so as
to jeopardize the continued existence of these support services and
thus, the viability of the farms remaining in the area?
Substantial reduction in demand for support services if the site is
converted--10 points
Some reduction in demand for support services if the site is converted--
9 to 1 point(s)
No significant reduction in demand for support services if the site is
converted--0 points
(12) Is the kind and intensity of the proposed use of the site
sufficiently incompatible with agriculture that it is likely to
contribute to the eventual conversion of surrounding farmland to
nonagricultural use?
Proposed project is incompatible with existing agricultural use of
surrounding farmland--10 points
Proposed project is tolerable to existing agricultural use of
surrounding farmland--9 to 1 point(s)
Proposed project is fully compatible with existing agricultural use of
surrounding farmland--0 points
(c) Corridor-type Site Assessment Criteria. The following criteria
are to be used for projects that have a linear or corridor-type site
configuration connecting two distant points, and crossing several
different tracts of land. These include utility lines, highways,
railroads, stream improvements, and flood control systems. Federal
agencies are to assess the suitability of each corridor-type site or
design alternative for protection as farmland along with the land
evaluation information described in Sec. 658.4(a). All criteria for
corridor-type sites will be scored as shown in Sec. 658.5(b) for other
sites, except as noted below:
(1) Criteria 5 and 6 will not be considered.
(2) Criterion 8 will be scored on a scale of 0 to 25 points, and
criterion 11 will be scored on a scale of 0 to 25 points.
Sec. 658.6 Technical assistance.
(a) Section 1543 of the Act, 7 U.S.C. 4204 states, ``The Secretary
is encouraged to provide technical assistance to any State or unit of
local government, or any nonprofit organization, as determined by the
Secretary, that desires to develop programs or policies to limit the
conversion of productive farmland to nonagricultural uses.'' In
Sec. 2.62, of 7 CFR part 2, subtitle A, NRCS is delegated leadership
responsibility within USDA for the activities treated in this part.
(b) In providing assistance to States, local units of government,
and nonprofit organizations, USDA will make available maps and other
soils information from the national cooperative soil survey through NRCS
field offices.
(c) Additional assistance, within available resources, may be
obtained from local offices of other USDA agencies. The Agricultural
Stabilization and Conservation Service and the Forest Service can
provide aerial photographs, crop history data, and related information.
A reasonable fee may be charged. In many States, the Cooperative
Extension Service can provide help in understanding and identifying
farmland protection issues and problems, resolving conflicts, developing
alternatives, deciding on appropriate actions, and implementing those
decisions.
(d) Officials of State agencies, local units of government,
nonprofit organizations, or regional, area, State-level, or field
offices of Federal agencies may obtain assistance by contacting the
office of the NRCS State conservationist. A list of Natural Resources
Conservation Service State office locations appears in appendix A,
Sec. 661.6 of this title. If further assistance is needed, requests
[[Page 624]]
should be made to the Assistant Secretary for Natural Resources and
Environment, Office of the Secretary, Department of Agriculture,
Washington, DC 20250.
Sec. 658.7 USDA assistance with Federal agencies' reviews of policies
and procedures.
(a) Section 1542(a) of the Act, 7 U.S.C. 4203, states, ``Each
department, agency, independent commission or other unit of the Federal
Government, with the assistance of the Department of Agriculture, shall
review current provisions of law, administrative rules and regulations,
and policies and procedures applicable to it to determine whether any
provision thereof will prevent such unit of the Federal Government from
taking appropriate action to comply fully with the provisions of this
subtitle.''
(b) Section 1542(b) of the Act, 7 U.S.C. 4203, requires, as
appropriate, each department, agency, independent commission, or other
unit of the Federal Government, with the assistance of the Department of
Agriculture, to develop proposals for action to bring its programs,
authorities, and administrative activities into conformity with the
purpose and policy of the Act.
(c) USDA will provide certain assistance to other Federal agencies
for the purposes specified in section 1542 of the Act, 7 U.S.C. 4203. If
a Federal agency identifies or suggests changes in laws, administrative
rules and regulations, policies, or procedures that may affect the
agency's compliance with the Act, USDA can advise the agency of the
probable effects of the changes on the protection of farmland. To
request this assistance, officials of Federal agencies should correspond
with the Chief, Natural Resources Conservation Service, P.O. Box 2890,
Washington, DC 20013.
(d) To meet the reporting requirements of section 1546 of the Act, 7
U.S.C. 4207, and for data collection purposes, each Federal agency is
requested to report to the Chief of the Natural Resources Conservation
Service by November 15th of each year on progress made during the prior
fiscal year to implement sections 1542 (a) and (b) of the Act, 7 U.S.C.
4203 (a) and (b). Until an agency fully implements those sections, the
agency should continue to make the annual report, but may omit the
report upon full implementation. However, an agency is requested to file
an annual report for any future year in which the agency has
substantially changed its process for compliance with the Act.
[49 FR 27724, July 5, 1984, as amended at 59 FR 31118, June 17, 1994]
[[Page 625]]
SUBCHAPTER G_MISCELLANEOUS
PART 660 [RESERVED]
PART 661_PUBLIC INFORMATION AND RIGHT TO PRIVACY
Subpart A_Availability of Records and Materials
Sec.
661.1 General.
661.2 Public access and copying.
661.3 Requests for records.
661.4 Appeals.
661.5 Exempt records.
Subpart B_Right to Privacy
661.6 General.
Appendix A to Part 661--Availability of Information
Authority: 5 U.S.C. 552, 552a; 7 CFR 1.1-1.16, 1.110-1.123.
Source: 43 FR 34756, Aug. 7, 1978, unless otherwise noted.
Subpart A_Availability of Records and Materials
Sec. 661.1 General.
This part is issued in accordance with the regulations of the
Secretary of Agriculture at 7 CFR 1.1 through 1.16 implementing the
Freedom of Information Act, 5 U.S.C. 552. The Secretary's regulations,
as implemented by the regulations in this part, govern the availability
to the public of records of the Natural Resources Conservation Service
and the records for which the Natural Resources Conservation Service has
custodial responsibility.
Sec. 661.2 Public access and copying.
Natural Resources Conservation Service will make available for
public inspection and copying those materials covered by 5 U.S.C.
552(a)(2) as set out in the Secretary's regulations.
Sec. 661.3 Requests for records.
Requests for records under 5 U.S.C. 552(a)(3) will be made in
accordance with 7 CFR 1.3(a). The titles and mailing addresses of the
officials in Natural Resources Conservation Service authorized to
receive requests for records are shown in Appendix A of this subpart.
Authority is hereby delegated to these officials to make determinations
regarding such requests in accordance with 7 CFR 1.4(c).
Sec. 661.4 Appeals.
Any person whose request for records above is denied shall have the
right to appeal that denial in accordance with 7 CFR 1.3(e). All appeals
shall be addressed to: Administrator, Natural Resources Conservation
Service, U.S. Department of Agriculture, P.O. Box 2890, Washington, DC
20013.
Sec. 661.5 Exempt records.
Records exempt under 5 U.S.C. 552(b) may be withheld in accordance
with 7 CFR 1.11.
Subpart B_Right to Privacy
Sec. 661.6 General.
Natural Resources Conservation Service implementation of the Privacy
Act of 1974, 5 U.S.C. 552a is contained in the regulations of the
Secretary, 7 CFR 1.110 through 1.123.
Appendix A to Part 661--Availability of Information
The following list pertaining to the availability of information are
published in accordance with the requirement and pursuant to the
authority of sections 552, 559 of Title 5, United States Code.
Request for Examination or Copy of Records
General
Request for examination and copying of a record or for copies of
records shall be made to the Deputy Administrator for Administration,
Natural Resources Conservation Service, U.S. Department of Agriculture,
P.O. Box 2890, Washington, DC 20013, or to the State Conservationist in
any of the listed State offices.
Natural Resources Conservation Service, State Office Location
State Conservationist, Wright Building, 138 South Gay St., P.O. Box 311,
Auburn, Ala. 36830.
[[Page 626]]
State Conservationist, Suite 129, Professional Bldg., 2221 East Northern
Lights Blvd., Anchorage, Alaska 99504.
State Conservationist, 230 North 1st Ave., Federal Bldg., Phoenix, Ariz.
85025.
State Conservationist, Federal Bldg., Room 5029, 700 West Capitol St.,
P.O. Box 2323, Little Rock, Ark. 72203.
State Conservationist, 2828 Chiles Rd., Davis, Calif. 95616.
State Conservationist, Mansfield Professional Park, Route 44A, Storrs,
Conn. 06268.
State Conservationist, Treadway Towers, Suite 2-4, 9 East Loockerman
St., Dover, Del. 19901.
State Conservationist, Federal Bldg., P.O. Box 1208, Gainesville, Fla.,
32602.
State Conservationist, Federal Bldg., 355 East Hancock Ave., P.O. Box
832, Athens, Ga. 30603.
State Conservationist, 300 Moana Blvd., Ala., Room 4316, P.O. Box 50004,
Honolulu, Hawaii 96850.
State Conservationist, Room 313, 2490 West 26th Ave., P.O. Box 17107,
Denver, Colo. 80217.
State Conservationist, Federal Bldg., 200 West Church St., P.O. Box 678,
Champaign, Ill. 61820.
State Conservationist, Atkinson Square-West, Suite 220, 5610
Crawfordsville Rd., Indianapolis, Ind. 46224.
State Conservationist, 823 Federal Bldg., 210 Walnut St., Des Moines,
Iowa 50309.
State Conservationist, 760 South Broadway, P.O. Box 600, Salina, Kans.
67401.
State Conservationist, 333 Waller Ave., Lexington, Ky. 40504.
State Conservationist, 3737 Government St., P.O. Box 1630, Alexandria,
La. 71301.
State Conservationist, USDA Bldg., University of Maine, Orono, Maine
04473.
State Conservationist, Hartwick Bldg., Room 522, 4321 Hartwick Rd.,
College Park, Md. 20740.
State Conservationist, 29 Cottage St., Amherst, Mass. 01002.
State Conservationist, Room 345, 304 North 8th St., Boise, Idaho 83702.
Staten Conservationist, Milner Bldg., Room 590, 210 South Lamar St.,
P.O. Box 610, Jackson, Miss. 39205.
State Conservationist, 555 Vandiver Dr., Columbia, Mo. 65201.
State Conservationist, Federal Bldg., P.O. Box 970, Bozeman, Mont.
59715.
State Conservationist, Federal Bldg.,-U.S. Courthouse, Room 345,
Lincoln, Nebr. 68508.
State Conservationist, U.S. Post Office Bldg., P.O. Box 4850, Reno, Nev.
89505.
State Conservationist, Federal Bldg., Durham, N.H. 03824.
State Conservationist, 1370 Hamilton St., P.O. Box 219, Somerset, N.J.
08873.
State Conservationist, 517 Gold Ave., SW., P.O. Box 2007, Albuquerque,
N. Mex. 87103.
State Conservationist, U.S. Courthouse and Federal Bldg., 100 South
Clinton St., Room 771, Syracuse, N.Y. 13260.
State Conservationist, 1405 South Harrison Rd., East Lansing, Mich.
48823.
State Conservationist, 200 Federal Bldg. and U.S. Courthouse, 316 North
Robert St., St. Paul, Minn. 55101.
State Conservationist, 200 North High St., Room 522, Columbus, Ohio
43215.
State Conservationist, Agriculture Center Bldg., Farm Rd. and Brumley
St., Stillwater, Okla. 74074.
State Conservationist, Federal Bldg., 1220 Southwest 3d Ave., Portland,
Oreg. 97204.
State Conservationist, Federal Bldg., and Courthouse, Box 985 Federal
Square Station, Harrisburg, Pa. 17108.
State Conservationist, Caribbean Area, Room 633 Federal Bldg., Chardon
Ave., G.P.O. Box 4868, Hato Rey, P.R. 00936.
State Conservationist, 222 Quaker Lane, West Warwick, R.I. 02893.
State Conservationist, 240 Stoneridge Dr., Columbia, S.C. 29210.
State Conservationist, 200 4th St., SW., P.O. Box 1357, Huron, S. Dak.
57350.
State Conservationist, Federal Office Bldg., 310 New Bern Ave., Fifth
Floor-P.O. Box 27307, Raleigh, N.C. 27611.
State Conservationist, Federal Bldg., P.O. Box 1458, Bismarck, N. Dak.
58501.
State Conservationist, Federal Bldg., 101 South Main St., P.O. Box 648,
Temple, Tex. 76501.
State Conservationist, 4012 Federal Bldg., 125 South State St., Salt
Lake City, Utah 84138.
State Conservationist, Burlington Square, Suite 205, Burlington, Vt.
05401.
State Conservationist, Federal Bldg., Room 9201, 400 North 8th St., P.O.
Box 10026, Richmond, Va. 23240.
State Conservationist, 360 U.S. Courthouse, West 920 Riverside Ave.,
Spokane, Wash. 99201.
State Conservationist, 75 High St., P.O. Box 865, Morgantown, W. Va.
26505.
State Conservationist, 4601 Hammersley Rd., Madison, Wis. 53711.
State Conservationist, Federal Office Bldg., P.O. Box 2440, Casper, Wyo.
82601.
State Conservationist, 675 U.S. Courthouse, Nashville, Tenn. 37203.
Only those matters pertaining to the particular State and matters of
general application will be available in each State office.
PART 662_REGIONAL EQUITY
Sec.
662.1 General.
662.2 Definitions.
662.3 Applicability.
662.4 Regional Equity implementation procedure.
[[Page 627]]
Authority: 16 U.S.C. 3841(d).
Source: 74 FR 63540, Dec. 4, 2009, unless otherwise noted.
Sec. 662.1 General.
This part sets forth the procedures that NRCS will use to implement
the Regional Equity provision of the Food Security Act of 1985, 16
U.S.C. 3841(d).
Sec. 662.2 Definitions.
The following definitions are applicable to this part:
Chief means the Chief of NRCS or the person delegated authority to
act on behalf of the Chief.
Contribution programs means Regional Equity programs that contribute
funding to Regional Equity States, as determined by the Chief each
fiscal year, consistent with the limitations established in 16 U.S.C.
3841(d).
Drawing account means the aggregated amount of contribution program
funds required to bring all States to the Regional Equity threshold.
Funding opportunity means the amount of funding needed to bring a
State to the $15,000,000 Regional Equity threshold for the aggregate of
Regional Equity programs.
Initial allocation means the amount of conservation program
allocation funding provided to all States through a merit-based, natural
resource focused process.
Obligated means a specific binding agreement, in writing, for the
purpose authorized by law and executed while the funding is available.
Regional Equity programs mean conservation programs under Subtitle D
(excluding the Conservation Reserve Program, Wetlands Reserve Program,
and the Conservation Security Program) of the Food Security Act of 1985.
These programs include: Conservation Stewardship Program, Farm and Ranch
Lands Protection Program, Grassland Reserve Program, Environmental
Quality Incentives Program, Conservation Innovation Grants, Agricultural
Water Enhancement Program, Conservation of Private Grazing Land,
Wildlife Habitat Incentive Program, Grassroots Source Water Protection
Program, Great Lakes Basin Program, Chesapeake Bay Watershed Initiative,
and the Voluntary Public Access and Habitat Incentive Program. Regional
Equity programs will be aggregated to determine whether a State meets
the $15,000,000 Regional Equity threshold. However, not all Regional
Equity programs will be considered contribution programs.
Regional Equity provision means the statutory requirement to give
priority funding before April 1 for approved applications for specific
programs within States that have not received a $15,000,000 aggregate
level of funding.
Regional Equity States means any State not meeting the Regional
Equity threshold of $15,000,000 through the initial allocation for
Regional Equity programs.
Regional Equity threshold means the $15,000,000 minimum aggregate
amount of Regional Equity program funds.
Respective demand means the mix of contribution program funds that
each State Conservationist in a Regional Equity State requests to fill
that State's funding opportunity.
State means all 50 States, the District of Columbia, Commonwealth of
Puerto Rico, Guam, Virgin Islands, American Samoa, Commonwealth of the
Northern Mariana Islands, and the Freely Associated States.
State Conservationist means the NRCS employee authorized to
implement Regional Equity programs and direct and supervise NRCS
activities in a State, the Caribbean Area, or the Pacific Islands Area.
Sec. 662.3 Applicability.
The regulation in this part sets forth the policies and procedures
for the Regional Equity provision as administered by the NRCS. This
regulation applies to the Regional Equity programs defined in this part.
The Chief will implement the Regional Equity provision by identifying
programs that contribute to the establishment of program-specific
drawing accounts for priority funding in Regional Equity States.
Sec. 662.4 Regional Equity implementation procedure.
The following procedures will implement the Regional Equity
provision:
(a) Determine initial allocations. NRCS will determine initial
conservation
[[Page 628]]
program funding levels for each State through a merit-based, natural
resource focused allocation process as determined by the Chief.
(b) Determine the funding opportunity. The combined initial
allocation funding level for Regional Equity programs, by State, will be
compared to the Regional Equity threshold to determine each Regional
Equity State's funding opportunity.
(c) Establish contribution program fund levels. Subject to
availability of funds, contribution program fund levels are determined
by:
(1) Identifying which programs contribute funds, as determined by
the Chief, consistent with the limitations established in 16 U.S.C.
3841(d); and
(2) Each State's respective demand.
(i) State Conservationists in Regional Equity States, in
consultation with State Technical Committees, will evaluate and
determine their respective program demands based on the following
criteria:
(A) Program applications and how they address national program
priorities;
(B) Historic trends in program interest; and
(C) State priority natural resource concerns.
(ii) The State Conservationist's identified respective demand will
assist the Chief in determining the composition of contribution program
funds within the established drawing account.
(d) Establish the drawing account. NRCS will establish a drawing
account for each contribution program, as determined in paragraphs
(c)(1) and (c)(2) of this section, and will give priority before April 1
of each fiscal year for such funds to be used to fund applications in
Regional Equity States sufficient to bring each of the Regional Equity
States to the Regional Equity threshold of $15,000,000.
(e) Access the drawing account. State Conservationists in Regional
Equity States may request access to that State's assigned portion of the
drawing account once that State has obligated at least 90 percent of its
initial allocation for that same program. The Chief may waive the 90
percent threshold requirement for a specific program in response to
specific program needs.
(f) Re-allocation of funds. The program-specific drawing accounts
for Regional Equity States will be available until April 1 of each
fiscal year, after which date the remaining funds may be re-allocated at
the discretion of the Chief.
PARTS 663-699 [RESERVED]
[[Page 629]]
FINDING AIDS
--------------------------------------------------------------------
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
[[Page 631]]
Table of CFR Titles and Chapters
(Revised as January 1, 2014)
Title 1--General Provisions
I Administrative Committee of the Federal Register
(Parts 1--49)
II Office of the Federal Register (Parts 50--299)
III Administrative Conference of the United States (Parts
300--399)
IV Miscellaneous Agencies (Parts 400--500)
Title 2--Grants and Agreements
Subtitle A--Office of Management and Budget Guidance
for Grants and Agreements
I Office of Management and Budget Governmentwide
Guidance for Grants and Agreements (Parts 2--199)
II Office of Management and Budget Guidance (200--299)
Subtitle B--Federal Agency Regulations for Grants and
Agreements
III Department of Health and Human Services (Parts 300--
399)
IV Department of Agriculture (Parts 400--499)
VI Department of State (Parts 600--699)
VII Agency for International Development (Parts 700--799)
VIII Department of Veterans Affairs (Parts 800--899)
IX Department of Energy (Parts 900--999)
XI Department of Defense (Parts 1100--1199)
XII Department of Transportation (Parts 1200--1299)
XIII Department of Commerce (Parts 1300--1399)
XIV Department of the Interior (Parts 1400--1499)
XV Environmental Protection Agency (Parts 1500--1599)
XVIII National Aeronautics and Space Administration (Parts
1800--1899)
XX United States Nuclear Regulatory Commission (Parts
2000--2099)
XXII Corporation for National and Community Service (Parts
2200--2299)
XXIII Social Security Administration (Parts 2300--2399)
XXIV Housing and Urban Development (Parts 2400--2499)
XXV National Science Foundation (Parts 2500--2599)
XXVI National Archives and Records Administration (Parts
2600--2699)
XXVII Small Business Administration (Parts 2700--2799)
XXVIII Department of Justice (Parts 2800--2899)
[[Page 632]]
XXX Department of Homeland Security (Parts 3000--3099)
XXXI Institute of Museum and Library Services (Parts 3100--
3199)
XXXII National Endowment for the Arts (Parts 3200--3299)
XXXIII National Endowment for the Humanities (Parts 3300--
3399)
XXXIV Department of Education (Parts 3400--3499)
XXXV Export-Import Bank of the United States (Parts 3500--
3599)
XXXVII Peace Corps (Parts 3700--3799)
LVIII Election Assistance Commission (Parts 5800--5899)
Title 3--The President
I Executive Office of the President (Parts 100--199)
Title 4--Accounts
I Government Accountability Office (Parts 1--199)
II Recovery Accountability and Transparency Board (Parts
200--299)
Title 5--Administrative Personnel
I Office of Personnel Management (Parts 1--1199)
II Merit Systems Protection Board (Parts 1200--1299)
III Office of Management and Budget (Parts 1300--1399)
V The International Organizations Employees Loyalty
Board (Parts 1500--1599)
VI Federal Retirement Thrift Investment Board (Parts
1600--1699)
VIII Office of Special Counsel (Parts 1800--1899)
IX Appalachian Regional Commission (Parts 1900--1999)
XI Armed Forces Retirement Home (Parts 2100--2199)
XIV Federal Labor Relations Authority, General Counsel of
the Federal Labor Relations Authority and Federal
Service Impasses Panel (Parts 2400--2499)
XV Office of Administration, Executive Office of the
President (Parts 2500--2599)
XVI Office of Government Ethics (Parts 2600--2699)
XXI Department of the Treasury (Parts 3100--3199)
XXII Federal Deposit Insurance Corporation (Parts 3200--
3299)
XXIII Department of Energy (Parts 3300--3399)
XXIV Federal Energy Regulatory Commission (Parts 3400--
3499)
XXV Department of the Interior (Parts 3500--3599)
XXVI Department of Defense (Parts 3600--3699)
XXVIII Department of Justice (Parts 3800--3899)
XXIX Federal Communications Commission (Parts 3900--3999)
XXX Farm Credit System Insurance Corporation (Parts 4000--
4099)
XXXI Farm Credit Administration (Parts 4100--4199)
[[Page 633]]
XXXIII Overseas Private Investment Corporation (Parts 4300--
4399)
XXXIV Securities and Exchange Commission (Parts 4400--4499)
XXXV Office of Personnel Management (Parts 4500--4599)
XXXVII Federal Election Commission (Parts 4700--4799)
XL Interstate Commerce Commission (Parts 5000--5099)
XLI Commodity Futures Trading Commission (Parts 5100--
5199)
XLII Department of Labor (Parts 5200--5299)
XLIII National Science Foundation (Parts 5300--5399)
XLV Department of Health and Human Services (Parts 5500--
5599)
XLVI Postal Rate Commission (Parts 5600--5699)
XLVII Federal Trade Commission (Parts 5700--5799)
XLVIII Nuclear Regulatory Commission (Parts 5800--5899)
XLIX Federal Labor Relations Authority (Parts 5900--5999)
L Department of Transportation (Parts 6000--6099)
LII Export-Import Bank of the United States (Parts 6200--
6299)
LIII Department of Education (Parts 6300--6399)
LIV Environmental Protection Agency (Parts 6400--6499)
LV National Endowment for the Arts (Parts 6500--6599)
LVI National Endowment for the Humanities (Parts 6600--
6699)
LVII General Services Administration (Parts 6700--6799)
LVIII Board of Governors of the Federal Reserve System
(Parts 6800--6899)
LIX National Aeronautics and Space Administration (Parts
6900--6999)
LX United States Postal Service (Parts 7000--7099)
LXI National Labor Relations Board (Parts 7100--7199)
LXII Equal Employment Opportunity Commission (Parts 7200--
7299)
LXIII Inter-American Foundation (Parts 7300--7399)
LXIV Merit Systems Protection Board (Parts 7400--7499)
LXV Department of Housing and Urban Development (Parts
7500--7599)
LXVI National Archives and Records Administration (Parts
7600--7699)
LXVII Institute of Museum and Library Services (Parts 7700--
7799)
LXVIII Commission on Civil Rights (Parts 7800--7899)
LXIX Tennessee Valley Authority (Parts 7900--7999)
LXX Court Services and Offender Supervision Agency for the
District of Columbia (Parts 8000--8099)
LXXI Consumer Product Safety Commission (Parts 8100--8199)
LXXIII Department of Agriculture (Parts 8300--8399)
LXXIV Federal Mine Safety and Health Review Commission
(Parts 8400--8499)
LXXVI Federal Retirement Thrift Investment Board (Parts
8600--8699)
LXXVII Office of Management and Budget (Parts 8700--8799)
LXXX Federal Housing Finance Agency (Parts 9000--9099)
LXXXIII Special Inspector General for Afghanistan
Reconstruction (Parts 9300--9399)
[[Page 634]]
LXXXIV Bureau of Consumer Financial Protection (Parts 9400--
9499)
LXXXVI National Credit Union Administration (9600--9699)
XCVII Department of Homeland Security Human Resources
Management System (Department of Homeland
Security--Office of Personnel Management) (Parts
9700--9799)
XCVII Council of the Inspectors General on Integrity and
Efficiency (Parts 9800--9899)
Title 6--Domestic Security
I Department of Homeland Security, Office of the
Secretary (Parts 1--99)
X Privacy and Civil Liberties Oversight Board (Parts
1000--1099)
Title 7--Agriculture
Subtitle A--Office of the Secretary of Agriculture
(Parts 0--26)
Subtitle B--Regulations of the Department of
Agriculture
I Agricultural Marketing Service (Standards,
Inspections, Marketing Practices), Department of
Agriculture (Parts 27--209)
II Food and Nutrition Service, Department of Agriculture
(Parts 210--299)
III Animal and Plant Health Inspection Service, Department
of Agriculture (Parts 300--399)
IV Federal Crop Insurance Corporation, Department of
Agriculture (Parts 400--499)
V Agricultural Research Service, Department of
Agriculture (Parts 500--599)
VI Natural Resources Conservation Service, Department of
Agriculture (Parts 600--699)
VII Farm Service Agency, Department of Agriculture (Parts
700--799)
VIII Grain Inspection, Packers and Stockyards
Administration (Federal Grain Inspection Service),
Department of Agriculture (Parts 800--899)
IX Agricultural Marketing Service (Marketing Agreements
and Orders; Fruits, Vegetables, Nuts), Department
of Agriculture (Parts 900--999)
X Agricultural Marketing Service (Marketing Agreements
and Orders; Milk), Department of Agriculture
(Parts 1000--1199)
XI Agricultural Marketing Service (Marketing Agreements
and Orders; Miscellaneous Commodities), Department
of Agriculture (Parts 1200--1299)
XIV Commodity Credit Corporation, Department of
Agriculture (Parts 1400--1499)
XV Foreign Agricultural Service, Department of
Agriculture (Parts 1500--1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts
1600--1699)
[[Page 635]]
XVII Rural Utilities Service, Department of Agriculture
(Parts 1700--1799)
XVIII Rural Housing Service, Rural Business-Cooperative
Service, Rural Utilities Service, and Farm Service
Agency, Department of Agriculture (Parts 1800--
2099)
XX Local Television Loan Guarantee Board (Parts 2200--
2299)
XXV Office of Advocacy and Outreach, Department of
Agriculture (Parts 2500--2599)
XXVI Office of Inspector General, Department of Agriculture
(Parts 2600--2699)
XXVII Office of Information Resources Management, Department
of Agriculture (Parts 2700--2799)
XXVIII Office of Operations, Department of Agriculture (Parts
2800--2899)
XXIX Office of Energy Policy and New Uses, Department of
Agriculture (Parts 2900--2999)
XXX Office of the Chief Financial Officer, Department of
Agriculture (Parts 3000--3099)
XXXI Office of Environmental Quality, Department of
Agriculture (Parts 3100--3199)
XXXII Office of Procurement and Property Management,
Department of Agriculture (Parts 3200--3299)
XXXIII Office of Transportation, Department of Agriculture
(Parts 3300--3399)
XXXIV National Institute of Food and Agriculture (Parts
3400--3499)
XXXV Rural Housing Service, Department of Agriculture
(Parts 3500--3599)
XXXVI National Agricultural Statistics Service, Department
of Agriculture (Parts 3600--3699)
XXXVII Economic Research Service, Department of Agriculture
(Parts 3700--3799)
XXXVIII World Agricultural Outlook Board, Department of
Agriculture (Parts 3800--3899)
XLI [Reserved]
XLII Rural Business-Cooperative Service and Rural Utilities
Service, Department of Agriculture (Parts 4200--
4299)
Title 8--Aliens and Nationality
I Department of Homeland Security (Immigration and
Naturalization) (Parts 1--499)
V Executive Office for Immigration Review, Department of
Justice (Parts 1000--1399)
Title 9--Animals and Animal Products
I Animal and Plant Health Inspection Service, Department
of Agriculture (Parts 1--199)
[[Page 636]]
II Grain Inspection, Packers and Stockyards
Administration (Packers and Stockyards Programs),
Department of Agriculture (Parts 200--299)
III Food Safety and Inspection Service, Department of
Agriculture (Parts 300--599)
Title 10--Energy
I Nuclear Regulatory Commission (Parts 0--199)
II Department of Energy (Parts 200--699)
III Department of Energy (Parts 700--999)
X Department of Energy (General Provisions) (Parts
1000--1099)
XIII Nuclear Waste Technical Review Board (Parts 1300--
1399)
XVII Defense Nuclear Facilities Safety Board (Parts 1700--
1799)
XVIII Northeast Interstate Low-Level Radioactive Waste
Commission (Parts 1800--1899)
Title 11--Federal Elections
I Federal Election Commission (Parts 1--9099)
II Election Assistance Commission (Parts 9400--9499)
Title 12--Banks and Banking
I Comptroller of the Currency, Department of the
Treasury (Parts 1--199)
II Federal Reserve System (Parts 200--299)
III Federal Deposit Insurance Corporation (Parts 300--399)
IV Export-Import Bank of the United States (Parts 400--
499)
V Office of Thrift Supervision, Department of the
Treasury (Parts 500--599)
VI Farm Credit Administration (Parts 600--699)
VII National Credit Union Administration (Parts 700--799)
VIII Federal Financing Bank (Parts 800--899)
IX Federal Housing Finance Board (Parts 900--999)
X Bureau of Consumer Financial Protection (Parts 1000--
1099)
XI Federal Financial Institutions Examination Council
(Parts 1100--1199)
XII Federal Housing Finance Agency (Parts 1200--1299)
XIII Financial Stability Oversight Council (Parts 1300--
1399)
XIV Farm Credit System Insurance Corporation (Parts 1400--
1499)
XV Department of the Treasury (Parts 1500--1599)
XVI Office of Financial Research (Parts 1600--1699)
XVII Office of Federal Housing Enterprise Oversight,
Department of Housing and Urban Development (Parts
1700--1799)
XVIII Community Development Financial Institutions Fund,
Department of the Treasury (Parts 1800--1899)
[[Page 637]]
Title 13--Business Credit and Assistance
I Small Business Administration (Parts 1--199)
III Economic Development Administration, Department of
Commerce (Parts 300--399)
IV Emergency Steel Guarantee Loan Board (Parts 400--499)
V Emergency Oil and Gas Guaranteed Loan Board (Parts
500--599)
Title 14--Aeronautics and Space
I Federal Aviation Administration, Department of
Transportation (Parts 1--199)
II Office of the Secretary, Department of Transportation
(Aviation Proceedings) (Parts 200--399)
III Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation
(Parts 400--1199)
V National Aeronautics and Space Administration (Parts
1200--1299)
VI Air Transportation System Stabilization (Parts 1300--
1399)
Title 15--Commerce and Foreign Trade
Subtitle A--Office of the Secretary of Commerce (Parts
0--29)
Subtitle B--Regulations Relating to Commerce and
Foreign Trade
I Bureau of the Census, Department of Commerce (Parts
30--199)
II National Institute of Standards and Technology,
Department of Commerce (Parts 200--299)
III International Trade Administration, Department of
Commerce (Parts 300--399)
IV Foreign-Trade Zones Board, Department of Commerce
(Parts 400--499)
VII Bureau of Industry and Security, Department of
Commerce (Parts 700--799)
VIII Bureau of Economic Analysis, Department of Commerce
(Parts 800--899)
IX National Oceanic and Atmospheric Administration,
Department of Commerce (Parts 900--999)
XI Technology Administration, Department of Commerce
(Parts 1100--1199)
XIII East-West Foreign Trade Board (Parts 1300--1399)
XIV Minority Business Development Agency (Parts 1400--
1499)
Subtitle C--Regulations Relating to Foreign Trade
Agreements
XX Office of the United States Trade Representative
(Parts 2000--2099)
Subtitle D--Regulations Relating to Telecommunications
and Information
XXIII National Telecommunications and Information
Administration, Department of Commerce (Parts
2300--2399)
[[Page 638]]
Title 16--Commercial Practices
I Federal Trade Commission (Parts 0--999)
II Consumer Product Safety Commission (Parts 1000--1799)
Title 17--Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1--199)
II Securities and Exchange Commission (Parts 200--399)
IV Department of the Treasury (Parts 400--499)
Title 18--Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of
Energy (Parts 1--399)
III Delaware River Basin Commission (Parts 400--499)
VI Water Resources Council (Parts 700--799)
VIII Susquehanna River Basin Commission (Parts 800--899)
XIII Tennessee Valley Authority (Parts 1300--1399)
Title 19--Customs Duties
I U.S. Customs and Border Protection, Department of
Homeland Security; Department of the Treasury
(Parts 0--199)
II United States International Trade Commission (Parts
200--299)
III International Trade Administration, Department of
Commerce (Parts 300--399)
IV U.S. Immigration and Customs Enforcement, Department
of Homeland Security (Parts 400--599)
Title 20--Employees' Benefits
I Office of Workers' Compensation Programs, Department
of Labor (Parts 1--199)
II Railroad Retirement Board (Parts 200--399)
III Social Security Administration (Parts 400--499)
IV Employees' Compensation Appeals Board, Department of
Labor (Parts 500--599)
V Employment and Training Administration, Department of
Labor (Parts 600--699)
VI Office of Workers' Compensation Programs, Department
of Labor (Parts 700--799)
VII Benefits Review Board, Department of Labor (Parts
800--899)
VIII Joint Board for the Enrollment of Actuaries (Parts
900--999)
IX Office of the Assistant Secretary for Veterans'
Employment and Training Service, Department of
Labor (Parts 1000--1099)
[[Page 639]]
Title 21--Food and Drugs
I Food and Drug Administration, Department of Health and
Human Services (Parts 1--1299)
II Drug Enforcement Administration, Department of Justice
(Parts 1300--1399)
III Office of National Drug Control Policy (Parts 1400--
1499)
Title 22--Foreign Relations
I Department of State (Parts 1--199)
II Agency for International Development (Parts 200--299)
III Peace Corps (Parts 300--399)
IV International Joint Commission, United States and
Canada (Parts 400--499)
V Broadcasting Board of Governors (Parts 500--599)
VII Overseas Private Investment Corporation (Parts 700--
799)
IX Foreign Service Grievance Board (Parts 900--999)
X Inter-American Foundation (Parts 1000--1099)
XI International Boundary and Water Commission, United
States and Mexico, United States Section (Parts
1100--1199)
XII United States International Development Cooperation
Agency (Parts 1200--1299)
XIII Millennium Challenge Corporation (Parts 1300--1399)
XIV Foreign Service Labor Relations Board; Federal Labor
Relations Authority; General Counsel of the
Federal Labor Relations Authority; and the Foreign
Service Impasse Disputes Panel (Parts 1400--1499)
XV African Development Foundation (Parts 1500--1599)
XVI Japan-United States Friendship Commission (Parts
1600--1699)
XVII United States Institute of Peace (Parts 1700--1799)
Title 23--Highways
I Federal Highway Administration, Department of
Transportation (Parts 1--999)
II National Highway Traffic Safety Administration and
Federal Highway Administration, Department of
Transportation (Parts 1200--1299)
III National Highway Traffic Safety Administration,
Department of Transportation (Parts 1300--1399)
Title 24--Housing and Urban Development
Subtitle A--Office of the Secretary, Department of
Housing and Urban Development (Parts 0--99)
Subtitle B--Regulations Relating to Housing and Urban
Development
I Office of Assistant Secretary for Equal Opportunity,
Department of Housing and Urban Development (Parts
100--199)
[[Page 640]]
II Office of Assistant Secretary for Housing-Federal
Housing Commissioner, Department of Housing and
Urban Development (Parts 200--299)
III Government National Mortgage Association, Department
of Housing and Urban Development (Parts 300--399)
IV Office of Housing and Office of Multifamily Housing
Assistance Restructuring, Department of Housing
and Urban Development (Parts 400--499)
V Office of Assistant Secretary for Community Planning
and Development, Department of Housing and Urban
Development (Parts 500--599)
VI Office of Assistant Secretary for Community Planning
and Development, Department of Housing and Urban
Development (Parts 600--699) [Reserved]
VII Office of the Secretary, Department of Housing and
Urban Development (Housing Assistance Programs and
Public and Indian Housing Programs) (Parts 700--
799)
VIII Office of the Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Section 8 Housing Assistance
Programs, Section 202 Direct Loan Program, Section
202 Supportive Housing for the Elderly Program and
Section 811 Supportive Housing for Persons With
Disabilities Program) (Parts 800--899)
IX Office of Assistant Secretary for Public and Indian
Housing, Department of Housing and Urban
Development (Parts 900--1699)
X Office of Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Interstate Land Sales
Registration Program) (Parts 1700--1799)
XII Office of Inspector General, Department of Housing and
Urban Development (Parts 2000--2099)
XV Emergency Mortgage Insurance and Loan Programs,
Department of Housing and Urban Development (Parts
2700--2799)
XX Office of Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Parts 3200--3899)
XXIV Board of Directors of the HOPE for Homeowners Program
(Parts 4000--4099)
XXV Neighborhood Reinvestment Corporation (Parts 4100--
4199)
Title 25--Indians
I Bureau of Indian Affairs, Department of the Interior
(Parts 1--299)
II Indian Arts and Crafts Board, Department of the
Interior (Parts 300--399)
III National Indian Gaming Commission, Department of the
Interior (Parts 500--599)
IV Office of Navajo and Hopi Indian Relocation (Parts
700--799)
V Bureau of Indian Affairs, Department of the Interior,
and Indian Health Service, Department of Health
and Human Services (Part 900)
[[Page 641]]
VI Office of the Assistant Secretary-Indian Affairs,
Department of the Interior (Parts 1000--1199)
VII Office of the Special Trustee for American Indians,
Department of the Interior (Parts 1200--1299)
Title 26--Internal Revenue
I Internal Revenue Service, Department of the Treasury
(Parts 1--End)
Title 27--Alcohol, Tobacco Products and Firearms
I Alcohol and Tobacco Tax and Trade Bureau, Department
of the Treasury (Parts 1--399)
II Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice (Parts 400--699)
Title 28--Judicial Administration
I Department of Justice (Parts 0--299)
III Federal Prison Industries, Inc., Department of Justice
(Parts 300--399)
V Bureau of Prisons, Department of Justice (Parts 500--
599)
VI Offices of Independent Counsel, Department of Justice
(Parts 600--699)
VII Office of Independent Counsel (Parts 700--799)
VIII Court Services and Offender Supervision Agency for the
District of Columbia (Parts 800--899)
IX National Crime Prevention and Privacy Compact Council
(Parts 900--999)
XI Department of Justice and Department of State (Parts
1100--1199)
Title 29--Labor
Subtitle A--Office of the Secretary of Labor (Parts
0--99)
Subtitle B--Regulations Relating to Labor
I National Labor Relations Board (Parts 100--199)
II Office of Labor-Management Standards, Department of
Labor (Parts 200--299)
III National Railroad Adjustment Board (Parts 300--399)
IV Office of Labor-Management Standards, Department of
Labor (Parts 400--499)
V Wage and Hour Division, Department of Labor (Parts
500--899)
IX Construction Industry Collective Bargaining Commission
(Parts 900--999)
X National Mediation Board (Parts 1200--1299)
XII Federal Mediation and Conciliation Service (Parts
1400--1499)
XIV Equal Employment Opportunity Commission (Parts 1600--
1699)
[[Page 642]]
XVII Occupational Safety and Health Administration,
Department of Labor (Parts 1900--1999)
XX Occupational Safety and Health Review Commission
(Parts 2200--2499)
XXV Employee Benefits Security Administration, Department
of Labor (Parts 2500--2599)
XXVII Federal Mine Safety and Health Review Commission
(Parts 2700--2799)
XL Pension Benefit Guaranty Corporation (Parts 4000--
4999)
Title 30--Mineral Resources
I Mine Safety and Health Administration, Department of
Labor (Parts 1--199)
II Bureau of Safety and Environmental Enforcement,
Department of the Interior (Parts 200--299)
IV Geological Survey, Department of the Interior (Parts
400--499)
V Bureau of Ocean Energy Management, Department of the
Interior (Parts 500--599)
VII Office of Surface Mining Reclamation and Enforcement,
Department of the Interior (Parts 700--999)
XII Office of Natural Resources Revenue, Department of the
Interior (Parts 1200--1299)
Title 31--Money and Finance: Treasury
Subtitle A--Office of the Secretary of the Treasury
(Parts 0--50)
Subtitle B--Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts
51--199)
II Fiscal Service, Department of the Treasury (Parts
200--399)
IV Secret Service, Department of the Treasury (Parts
400--499)
V Office of Foreign Assets Control, Department of the
Treasury (Parts 500--599)
VI Bureau of Engraving and Printing, Department of the
Treasury (Parts 600--699)
VII Federal Law Enforcement Training Center, Department of
the Treasury (Parts 700--799)
VIII Office of International Investment, Department of the
Treasury (Parts 800--899)
IX Federal Claims Collection Standards (Department of the
Treasury--Department of Justice) (Parts 900--999)
X Financial Crimes Enforcement Network, Department of
the Treasury (Parts 1000--1099)
Title 32--National Defense
Subtitle A--Department of Defense
I Office of the Secretary of Defense (Parts 1--399)
[[Page 643]]
V Department of the Army (Parts 400--699)
VI Department of the Navy (Parts 700--799)
VII Department of the Air Force (Parts 800--1099)
Subtitle B--Other Regulations Relating to National
Defense
XII Defense Logistics Agency (Parts 1200--1299)
XVI Selective Service System (Parts 1600--1699)
XVII Office of the Director of National Intelligence (Parts
1700--1799)
XVIII National Counterintelligence Center (Parts 1800--1899)
XIX Central Intelligence Agency (Parts 1900--1999)
XX Information Security Oversight Office, National
Archives and Records Administration (Parts 2000--
2099)
XXI National Security Council (Parts 2100--2199)
XXIV Office of Science and Technology Policy (Parts 2400--
2499)
XXVII Office for Micronesian Status Negotiations (Parts
2700--2799)
XXVIII Office of the Vice President of the United States
(Parts 2800--2899)
Title 33--Navigation and Navigable Waters
I Coast Guard, Department of Homeland Security (Parts
1--199)
II Corps of Engineers, Department of the Army (Parts
200--399)
IV Saint Lawrence Seaway Development Corporation,
Department of Transportation (Parts 400--499)
Title 34--Education
Subtitle A--Office of the Secretary, Department of
Education (Parts 1--99)
Subtitle B--Regulations of the Offices of the
Department of Education
I Office for Civil Rights, Department of Education
(Parts 100--199)
II Office of Elementary and Secondary Education,
Department of Education (Parts 200--299)
III Office of Special Education and Rehabilitative
Services, Department of Education (Parts 300--399)
IV Office of Vocational and Adult Education, Department
of Education (Parts 400--499)
V Office of Bilingual Education and Minority Languages
Affairs, Department of Education (Parts 500--599)
VI Office of Postsecondary Education, Department of
Education (Parts 600--699)
VII Office of Educational Research and Improvement,
Department of Education (700--799)[Reserved]
Subtitle C--Regulations Relating to Education
XI National Institute for Literacy (Parts 1100--1199)
XII National Council on Disability (Parts 1200--1299)
[[Page 644]]
Title 35 [Reserved]
Title 36--Parks, Forests, and Public Property
I National Park Service, Department of the Interior
(Parts 1--199)
II Forest Service, Department of Agriculture (Parts 200--
299)
III Corps of Engineers, Department of the Army (Parts
300--399)
IV American Battle Monuments Commission (Parts 400--499)
V Smithsonian Institution (Parts 500--599)
VI [Reserved]
VII Library of Congress (Parts 700--799)
VIII Advisory Council on Historic Preservation (Parts 800--
899)
IX Pennsylvania Avenue Development Corporation (Parts
900--999)
X Presidio Trust (Parts 1000--1099)
XI Architectural and Transportation Barriers Compliance
Board (Parts 1100--1199)
XII National Archives and Records Administration (Parts
1200--1299)
XV Oklahoma City National Memorial Trust (Parts 1500--
1599)
XVI Morris K. Udall Scholarship and Excellence in National
Environmental Policy Foundation (Parts 1600--1699)
Title 37--Patents, Trademarks, and Copyrights
I United States Patent and Trademark Office, Department
of Commerce (Parts 1--199)
II U.S. Copyright Office, Library of Congress (Parts
200--299)
III Copyright Royalty Board, Library of Congress (Parts
300--399)
IV Assistant Secretary for Technology Policy, Department
of Commerce (Parts 400--599)
Title 38--Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0--199)
II Armed Forces Retirement Home (Parts 200--299)
Title 39--Postal Service
I United States Postal Service (Parts 1--999)
III Postal Regulatory Commission (Parts 3000--3099)
Title 40--Protection of Environment
I Environmental Protection Agency (Parts 1--1099)
IV Environmental Protection Agency and Department of
Justice (Parts 1400--1499)
V Council on Environmental Quality (Parts 1500--1599)
VI Chemical Safety and Hazard Investigation Board (Parts
1600--1699)
[[Page 645]]
VII Environmental Protection Agency and Department of
Defense; Uniform National Discharge Standards for
Vessels of the Armed Forces (Parts 1700--1799)
Title 41--Public Contracts and Property Management
Subtitle A--Federal Procurement Regulations System
[Note]
Subtitle B--Other Provisions Relating to Public
Contracts
50 Public Contracts, Department of Labor (Parts 50-1--50-
999)
51 Committee for Purchase From People Who Are Blind or
Severely Disabled (Parts 51-1--51-99)
60 Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor (Parts
60-1--60-999)
61 Office of the Assistant Secretary for Veterans'
Employment and Training Service, Department of
Labor (Parts 61-1--61-999)
62--100 [Reserved]
Subtitle C--Federal Property Management Regulations
System
101 Federal Property Management Regulations (Parts 101-1--
101-99)
102 Federal Management Regulation (Parts 102-1--102-299)
103--104 [Reserved]
105 General Services Administration (Parts 105-1--105-999)
109 Department of Energy Property Management Regulations
(Parts 109-1--109-99)
114 Department of the Interior (Parts 114-1--114-99)
115 Environmental Protection Agency (Parts 115-1--115-99)
128 Department of Justice (Parts 128-1--128-99)
129--200 [Reserved]
Subtitle D--Other Provisions Relating to Property
Management [Reserved]
Subtitle E--Federal Information Resources Management
Regulations System [Reserved]
Subtitle F--Federal Travel Regulation System
300 General (Parts 300-1--300-99)
301 Temporary Duty (TDY) Travel Allowances (Parts 301-1--
301-99)
302 Relocation Allowances (Parts 302-1--302-99)
303 Payment of Expenses Connected with the Death of
Certain Employees (Part 303-1--303-99)
304 Payment of Travel Expenses from a Non-Federal Source
(Parts 304-1--304-99)
Title 42--Public Health
I Public Health Service, Department of Health and Human
Services (Parts 1--199)
IV Centers for Medicare & Medicaid Services, Department
of Health and Human Services (Parts 400--599)
[[Page 646]]
V Office of Inspector General-Health Care, Department of
Health and Human Services (Parts 1000--1999)
Title 43--Public Lands: Interior
Subtitle A--Office of the Secretary of the Interior
(Parts 1--199)
Subtitle B--Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior
(Parts 400--999)
II Bureau of Land Management, Department of the Interior
(Parts 1000--9999)
III Utah Reclamation Mitigation and Conservation
Commission (Parts 10000--10099)
Title 44--Emergency Management and Assistance
I Federal Emergency Management Agency, Department of
Homeland Security (Parts 0--399)
IV Department of Commerce and Department of
Transportation (Parts 400--499)
Title 45--Public Welfare
Subtitle A--Department of Health and Human Services
(Parts 1--199)
Subtitle B--Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs),
Administration for Children and Families,
Department of Health and Human Services (Parts
200--299)
III Office of Child Support Enforcement (Child Support
Enforcement Program), Administration for Children
and Families, Department of Health and Human
Services (Parts 300--399)
IV Office of Refugee Resettlement, Administration for
Children and Families, Department of Health and
Human Services (Parts 400--499)
V Foreign Claims Settlement Commission of the United
States, Department of Justice (Parts 500--599)
VI National Science Foundation (Parts 600--699)
VII Commission on Civil Rights (Parts 700--799)
VIII Office of Personnel Management (Parts 800--899)
X Office of Community Services, Administration for
Children and Families, Department of Health and
Human Services (Parts 1000--1099)
XI National Foundation on the Arts and the Humanities
(Parts 1100--1199)
XII Corporation for National and Community Service (Parts
1200--1299)
XIII Office of Human Development Services, Department of
Health and Human Services (Parts 1300--1399)
[[Page 647]]
XVI Legal Services Corporation (Parts 1600--1699)
XVII National Commission on Libraries and Information
Science (Parts 1700--1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800--
1899)
XXI Commission on Fine Arts (Parts 2100--2199)
XXIII Arctic Research Commission (Part 2301)
XXIV James Madison Memorial Fellowship Foundation (Parts
2400--2499)
XXV Corporation for National and Community Service (Parts
2500--2599)
Title 46--Shipping
I Coast Guard, Department of Homeland Security (Parts
1--199)
II Maritime Administration, Department of Transportation
(Parts 200--399)
III Coast Guard (Great Lakes Pilotage), Department of
Homeland Security (Parts 400--499)
IV Federal Maritime Commission (Parts 500--599)
Title 47--Telecommunication
I Federal Communications Commission (Parts 0--199)
II Office of Science and Technology Policy and National
Security Council (Parts 200--299)
III National Telecommunications and Information
Administration, Department of Commerce (Parts
300--399)
IV National Telecommunications and Information
Administration, Department of Commerce, and
National Highway Traffic Safety Administration,
Department of Transportation (Parts 400--499)
Title 48--Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1--99)
2 Defense Acquisition Regulations System, Department of
Defense (Parts 200--299)
3 Health and Human Services (Parts 300--399)
4 Department of Agriculture (Parts 400--499)
5 General Services Administration (Parts 500--599)
6 Department of State (Parts 600--699)
7 Agency for International Development (Parts 700--799)
8 Department of Veterans Affairs (Parts 800--899)
9 Department of Energy (Parts 900--999)
10 Department of the Treasury (Parts 1000--1099)
12 Department of Transportation (Parts 1200--1299)
13 Department of Commerce (Parts 1300--1399)
14 Department of the Interior (Parts 1400--1499)
[[Page 648]]
15 Environmental Protection Agency (Parts 1500--1599)
16 Office of Personnel Management, Federal Employees
Health Benefits Acquisition Regulation (Parts
1600--1699)
17 Office of Personnel Management (Parts 1700--1799)
18 National Aeronautics and Space Administration (Parts
1800--1899)
19 Broadcasting Board of Governors (Parts 1900--1999)
20 Nuclear Regulatory Commission (Parts 2000--2099)
21 Office of Personnel Management, Federal Employees
Group Life Insurance Federal Acquisition
Regulation (Parts 2100--2199)
23 Social Security Administration (Parts 2300--2399)
24 Department of Housing and Urban Development (Parts
2400--2499)
25 National Science Foundation (Parts 2500--2599)
28 Department of Justice (Parts 2800--2899)
29 Department of Labor (Parts 2900--2999)
30 Department of Homeland Security, Homeland Security
Acquisition Regulation (HSAR) (Parts 3000--3099)
34 Department of Education Acquisition Regulation (Parts
3400--3499)
51 Department of the Army Acquisition Regulations (Parts
5100--5199)
52 Department of the Navy Acquisition Regulations (Parts
5200--5299)
53 Department of the Air Force Federal Acquisition
Regulation Supplement (Parts 5300--5399)[Reserved]
54 Defense Logistics Agency, Department of Defense (Parts
5400--5499)
57 African Development Foundation (Parts 5700--5799)
61 Civilian Board of Contract Appeals, General Services
Administration (Parts 6100--6199)
63 Department of Transportation Board of Contract Appeals
(Parts 6300--6399)
99 Cost Accounting Standards Board, Office of Federal
Procurement Policy, Office of Management and
Budget (Parts 9900--9999)
Title 49--Transportation
Subtitle A--Office of the Secretary of Transportation
(Parts 1--99)
Subtitle B--Other Regulations Relating to
Transportation
I Pipeline and Hazardous Materials Safety
Administration, Department of Transportation
(Parts 100--199)
II Federal Railroad Administration, Department of
Transportation (Parts 200--299)
III Federal Motor Carrier Safety Administration,
Department of Transportation (Parts 300--399)
IV Coast Guard, Department of Homeland Security (Parts
400--499)
[[Page 649]]
V National Highway Traffic Safety Administration,
Department of Transportation (Parts 500--599)
VI Federal Transit Administration, Department of
Transportation (Parts 600--699)
VII National Railroad Passenger Corporation (AMTRAK)
(Parts 700--799)
VIII National Transportation Safety Board (Parts 800--999)
X Surface Transportation Board, Department of
Transportation (Parts 1000--1399)
XI Research and Innovative Technology Administration,
Department of Transportation (Parts 1400--
1499)[Reserved]
XII Transportation Security Administration, Department of
Homeland Security (Parts 1500--1699)
Title 50--Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of
the Interior (Parts 1--199)
II National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of
Commerce (Parts 200--299)
III International Fishing and Related Activities (Parts
300--399)
IV Joint Regulations (United States Fish and Wildlife
Service, Department of the Interior and National
Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of
Commerce); Endangered Species Committee
Regulations (Parts 400--499)
V Marine Mammal Commission (Parts 500--599)
VI Fishery Conservation and Management, National Oceanic
and Atmospheric Administration, Department of
Commerce (Parts 600--699)
[[Page 651]]
Alphabetical List of Agencies Appearing in the CFR
(Revised as of January 1, 2014)
CFR Title, Subtitle or
Agency Chapter
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Council on Historic Preservation 36, VIII
Advocacy and Outreach, Office of 7, XXV
Afghanistan Reconstruction, Special Inspector 22, LXXXIII
General for
African Development Foundation 22, XV
Federal Acquisition Regulation 48, 57
Agency for International Development 2, VII; 22, II
Federal Acquisition Regulation 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agriculture Department 2, IV; 5, LXXIII
Advocacy and Outreach, Office of 7, XXV
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Animal and Plant Health Inspection Service 7, III; 9, I
Chief Financial Officer, Office of 7, XXX
Commodity Credit Corporation 7, XIV
Economic Research Service 7, XXXVII
Energy Policy and New Uses, Office of 2, IX; 7, XXIX
Environmental Quality, Office of 7, XXXI
Farm Service Agency 7, VII, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Forest Service 36, II
Grain Inspection, Packers and Stockyards 7, VIII; 9, II
Administration
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Institute of Food and Agriculture 7, XXXIV
Natural Resources Conservation Service 7, VI
Operations, Office of 7, XXVIII
Procurement and Property Management, Office of 7, XXXII
Rural Business-Cooperative Service 7, XVIII, XLII, L
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV, L
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII, L
Secretary of Agriculture, Office of 7, Subtitle A
Transportation, Office of 7, XXXIII
World Agricultural Outlook Board 7, XXXVIII
Air Force Department 32, VII
Federal Acquisition Regulation Supplement 48, 53
Air Transportation Stabilization Board 14, VI
Alcohol and Tobacco Tax and Trade Bureau 27, I
Alcohol, Tobacco, Firearms, and Explosives, 27, II
Bureau of
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
American Indians, Office of the Special Trustee 25, VII
[[Page 652]]
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers 36, XI
Compliance Board
Arctic Research Commission 45, XXIII
Armed Forces Retirement Home 5, XI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Bilingual Education and Minority Languages 34, V
Affairs, Office of
Blind or Severely Disabled, Committee for 41, 51
Purchase from People Who Are
Broadcasting Board of Governors 22, V
Federal Acquisition Regulation 48, 19
Bureau of Ocean Energy Management, Regulation, 30, II
and Enforcement
Census Bureau 15, I
Centers for Medicare & Medicaid Services 42, IV
Central Intelligence Agency 32, XIX
Chemical Safety and Hazardous Investigation 40, VI
Board
Chief Financial Officer, Office of 7, XXX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Civil Rights, Commission on 5, LXVIII; 45, VII
Civil Rights, Office for 34, I
Council of the Inspectors General on Integrity 5, XCVIII
and Efficiency
Court Services and Offender Supervision Agency 5, LXX
for the District of Columbia
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Commerce Department 2, XIII; 44, IV; 50, VI
Census Bureau 15, I
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Emergency Management and Assistance 44, IV
Federal Acquisition Regulation 48, 13
Foreign-Trade Zones Board 15, IV
Industry and Security, Bureau of 15, VII
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric 15, IX; 50, II, III, IV,
Administration VI
National Telecommunications and Information 15, XXIII; 47, III, IV
Administration
National Weather Service 15, IX
Patent and Trademark Office, United States 37, I
Productivity, Technology and Innovation, 37, IV
Assistant Secretary for
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Commercial Space Transportation 14, III
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 5, XLI; 17, I
Community Planning and Development, Office of 24, V, VI
Assistant Secretary for
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining 29, IX
Commission
Consumer Financial Protection Bureau 5, LXXXIV; 12, X
Consumer Product Safety Commission 5, LXXI; 16, II
Copyright Royalty Board 37, III
Corporation for National and Community Service 2, XXII; 45, XII, XXV
Cost Accounting Standards Board 48, 99
Council on Environmental Quality 40, V
Court Services and Offender Supervision Agency 5, LXX; 28, VIII
for the District of Columbia
Customs and Border Protection 19, I
[[Page 653]]
Defense Contract Audit Agency 32, I
Defense Department 2, XI; 5, XXVI; 32,
Subtitle A; 40, VII
Advanced Research Projects Agency 32, I
Air Force Department 32, VII
Army Department 32, V; 33, II; 36, III,
48, 51
Defense Acquisition Regulations System 48, 2
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, I, XII; 48, 54
Engineers, Corps of 33, II; 36, III
National Imagery and Mapping Agency 32, I
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 2, XI; 32, I
Defense Contract Audit Agency 32, I
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, XII; 48, 54
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
District of Columbia, Court Services and 5, LXX; 28, VIII
Offender Supervision Agency for the
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Economic Research Service 7, XXXVII
Education, Department of 2, XXXIV; 5, LIII
Bilingual Education and Minority Languages 34, V
Affairs, Office of
Civil Rights, Office for 34, I
Educational Research and Improvement, Office 34, VII
of
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, 34, III
Office of
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Election Assistance Commission 2, LVIII; 11, II
Elementary and Secondary Education, Office of 34, II
Emergency Oil and Gas Guaranteed Loan Board 13, V
Emergency Steel Guarantee Loan Board 13, IV
Employee Benefits Security Administration 29, XXV
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 2, IX; 5, XXIII; 10, II,
III, X
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 5, XXIV; 18, I
Property Management Regulations 41, 109
Energy, Office of 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 2, XV; 5, LIV; 40, I, IV,
VII
Federal Acquisition Regulation 48, 15
Property Management Regulations 41, 115
Environmental Quality, Office of 7, XXXI
Equal Employment Opportunity Commission 5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary 24, I
for
Executive Office of the President 3, I
Administration, Office of 5, XV
Environmental Quality, Council on 40, V
Management and Budget, Office of 2, Subtitle A; 5, III,
LXXVII; 14, VI; 48, 99
[[Page 654]]
National Drug Control Policy, Office of 21, III
National Security Council 32, XXI; 47, 2
Presidential Documents 3
Science and Technology Policy, Office of 32, XXIV; 47, II
Trade Representative, Office of the United 15, XX
States
Export-Import Bank of the United States 2, XXXV; 5, LII; 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 5, XXXI; 12, VI
Farm Credit System Insurance Corporation 5, XXX; 12, XIV
Farm Service Agency 7, VII, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Commercial Space Transportation 14, III
Federal Claims Collection Standards 31, IX
Federal Communications Commission 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 5, XXII; 12, III
Federal Election Commission 5, XXXVII; 11, I
Federal Emergency Management Agency 44, I
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition 48, 16
Regulation
Federal Energy Regulatory Commission 5, XXIV; 18, I
Federal Financial Institutions Examination 12, XI
Council
Federal Financing Bank 12, VIII
Federal Highway Administration 23, I, II
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Enterprise Oversight Office 12, XVII
Federal Housing Finance Agency 5, LXXX; 12, XII
Federal Housing Finance Board 12, IX
Federal Labor Relations Authority 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Management Regulation 41, 102
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration 49, III
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Board of Governors 5, LVIII
Federal Retirement Thrift Investment Board 5, VI, LXXVI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 5, XLVII; 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Financial Crimes Enforcement Network 31, X
Financial Research Office 12, XVI
Financial Stability Oversight Council 12, XIII
Fine Arts, Commission on 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of the 45, V
United States
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
[[Page 655]]
Forest Service 36, II
General Services Administration 5, LVII; 41, 105
Contract Appeals, Board of 48, 61
Federal Acquisition Regulation 48, 5
Federal Management Regulation 41, 102
Federal Property Management Regulations 41, 101
Federal Travel Regulation System 41, Subtitle F
General 41, 300
Payment From a Non-Federal Source for Travel 41, 304
Expenses
Payment of Expenses Connected With the Death 41, 303
of Certain Employees
Relocation Allowances 41, 302
Temporary Duty (TDY) Travel Allowances 41, 301
Geological Survey 30, IV
Government Accountability Office 4, I
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grain Inspection, Packers and Stockyards 7, VIII; 9, II
Administration
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 2, III; 5, XLV; 45,
Subtitle A,
Centers for Medicare & Medicaid Services 42, IV
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Human Development Services, Office of 45, XIII
Indian Health Service 25, V
Inspector General (Health Care), Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Homeland Security, Department of 2, XXX; 6, I; 8, I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Customs and Border Protection 19, I
Federal Emergency Management Agency 44, I
Human Resources Management and Labor Relations 5, XCVII
Systems
Immigration and Customs Enforcement Bureau 19, IV
Transportation Security Administration 49, XII
HOPE for Homeowners Program, Board of Directors 24, XXIV
of
Housing and Urban Development, Department of 2, XXIV; 5, LXV; 24,
Subtitle B
Community Planning and Development, Office of 24, V, VI
Assistant Secretary for
Equal Opportunity, Office of Assistant 24, I
Secretary for
Federal Acquisition Regulation 48, 24
Federal Housing Enterprise Oversight, Office 12, XVII
of
Government National Mortgage Association 24, III
Housing--Federal Housing Commissioner, Office 24, II, VIII, X, XX
of Assistant Secretary for
Housing, Office of, and Multifamily Housing 24, IV
Assistance Restructuring, Office of
Inspector General, Office of 24, XII
Public and Indian Housing, Office of Assistant 24, IX
Secretary for
Secretary, Office of 24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of 24, II, VIII, X, XX
Assistant Secretary for
Housing, Office of, and Multifamily Housing 24, IV
Assistance Restructuring, Office of
Human Development Services, Office of 45, XIII
Immigration and Customs Enforcement Bureau 19, IV
Immigration Review, Executive Office for 8, V
Independent Counsel, Office of 28, VII
Indian Affairs, Bureau of 25, I, V
[[Page 656]]
Indian Affairs, Office of the Assistant 25, VI
Secretary
Indian Arts and Crafts Board 25, II
Indian Health Service 25, V
Industry and Security, Bureau of 15, VII
Information Resources Management, Office of 7, XXVII
Information Security Oversight Office, National 32, XX
Archives and Records Administration
Inspector General
Agriculture Department 7, XXVI
Health and Human Services Department 42, V
Housing and Urban Development Department 24, XII, XV
Institute of Peace, United States 22, XVII
Inter-American Foundation 5, LXIII; 22, X
Interior Department 2, XIV
American Indians, Office of the Special 25, VII
Trustee
Bureau of Ocean Energy Management, Regulation, 30, II
and Enforcement
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant 25, VI
Secretary
Indian Arts and Crafts Board 25, II
Land Management, Bureau of 43, II
National Indian Gaming Commission 25, III
National Park Service 36, I
Natural Resource Revenue, Office of 30, XII
Ocean Energy Management, Bureau of 30, V
Reclamation, Bureau of 43, I
Secretary of the Interior, Office of 2, XIV; 43, Subtitle A
Surface Mining Reclamation and Enforcement, 30, VII
Office of
Internal Revenue Service 26, I
International Boundary and Water Commission, 22, XI
United States and Mexico, United States
Section
International Development, United States Agency 22, II
for
Federal Acquisition Regulation 48, 7
International Development Cooperation Agency, 22, XII
United States
International Joint Commission, United States 22, IV
and Canada
International Organizations Employees Loyalty 5, V
Board
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 5, XL
Investment Security, Office of 31, VIII
Iraq Reconstruction, Special Inspector General 5, LXXXVII
for
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 2, XXVIII; 5, XXVIII; 28,
I, XI; 40, IV
Alcohol, Tobacco, Firearms, and Explosives, 27, II
Bureau of
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 31, IX
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the 45, V
United States
Immigration Review, Executive Office for 8, V
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Property Management Regulations 41, 128
Labor Department 5, XLII
Employee Benefits Security Administration 29, XXV
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
[[Page 657]]
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office 41, 60
of
Federal Procurement Regulations System 41, 50
Labor-Management Standards, Office of 29, II, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Office of Workers' Compensation Programs 20, VII
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training Service, 41, 61; 20, IX
Office of the Assistant Secretary for
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Standards, Office of 29, II, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Royalty Board 37, III
U.S. Copyright Office 37, II
Local Television Loan Guarantee Board 7, XX
Management and Budget, Office of 5, III, LXXVII; 14, VI;
48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II, LXIV
Micronesian Status Negotiations, Office for 32, XXVII
Millennium Challenge Corporation 22, XIII
Mine Safety and Health Administration 30, I
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Morris K. Udall Scholarship and Excellence in 36, XVI
National Environmental Policy Foundation
Museum and Library Services, Institute of 2, XXXI
National Aeronautics and Space Administration 2, XVIII; 5, LIX; 14, V
Federal Acquisition Regulation 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National and Community Service, Corporation for 2, XXII; 45, XII, XXV
National Archives and Records Administration 2, XXVI; 5, LXVI; 36, XII
Information Security Oversight Office 32, XX
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information 45, XVII
Science
National Council on Disability 34, XII
National Counterintelligence Center 32, XVIII
National Credit Union Administration 5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact 28, IX
Council
National Drug Control Policy, Office of 21, III
National Endowment for the Arts 2, XXXII
National Endowment for the Humanities 2, XXXIII
National Foundation on the Arts and the 45, XI
Humanities
National Highway Traffic Safety Administration 23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency 32, I
National Indian Gaming Commission 25, III
National Institute for Literacy 34, XI
National Institute of Food and Agriculture 7, XXXIV
National Institute of Standards and Technology 15, II
National Intelligence, Office of Director of 32, XVII
National Labor Relations Board 5, LXI; 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV,
VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
[[Page 658]]
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 2, XXV; 5, XLIII; 45, VI
Federal Acquisition Regulation 48, 25
National Security Council 32, XXI
National Security Council and Office of Science 47, II
and Technology Policy
National Telecommunications and Information 15, XXIII; 47, III, IV
Administration
National Transportation Safety Board 49, VIII
Natural Resources Conservation Service 7, VI
Natural Resource Revenue, Office of 30, XII
Navajo and Hopi Indian Relocation, Office of 25, IV
Navy Department 32, VI
Federal Acquisition Regulation 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Northeast Interstate Low-Level Radioactive Waste 10, XVIII
Commission
Nuclear Regulatory Commission 2, XX; 5, XLVIII; 10, I
Federal Acquisition Regulation 48, 20
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Ocean Energy Management, Bureau of 30, V
Offices of Independent Counsel 28, VI
Office of Workers' Compensation Programs 20, VII
Oklahoma City National Memorial Trust 36, XV
Operations Office 7, XXVIII
Overseas Private Investment Corporation 5, XXXIII; 22, VII
Patent and Trademark Office, United States 37, I
Payment From a Non-Federal Source for Travel 41, 304
Expenses
Payment of Expenses Connected With the Death of 41, 303
Certain Employees
Peace Corps 2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension Benefit Guaranty Corporation 29, XL
Personnel Management, Office of 5, I, XXXV; 45, VIII
Human Resources Management and Labor Relations 5, XCVII
Systems, Department of Homeland Security
Federal Acquisition Regulation 48, 17
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition 48, 16
Regulation
Pipeline and Hazardous Materials Safety 49, I
Administration
Postal Regulatory Commission 5, XLVI; 39, III
Postal Service, United States 5, LX; 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House 1, IV
Fellowships
Presidential Documents 3
Presidio Trust 36, X
Prisons, Bureau of 28, V
Privacy and Civil Liberties Oversight Board 6, X
Procurement and Property Management, Office of 7, XXXII
Productivity, Technology and Innovation, 37, IV
Assistant Secretary
Public Contracts, Department of Labor 41, 50
Public and Indian Housing, Office of Assistant 24, IX
Secretary for
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation, Bureau of 43, I
Recovery Accountability and Transparency Board 4, II
Refugee Resettlement, Office of 45, IV
Relocation Allowances 41, 302
Research and Innovative Technology 49, XI
Administration
Rural Business-Cooperative Service 7, XVIII, XLII, L
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV, L
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII, L
[[Page 659]]
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and 47, II
National Security Council
Secret Service 31, IV
Securities and Exchange Commission 5, XXXIV; 17, II
Selective Service System 32, XVI
Small Business Administration 2, XXVII; 13, I
Smithsonian Institution 36, V
Social Security Administration 2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, 34, III
Office of
State Department 2, VI; 22, I; 28, XI
Federal Acquisition Regulation 48, 6
Surface Mining Reclamation and Enforcement, 30, VII
Office of
Surface Transportation Board 49, X
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Tennessee Valley Authority 5, LXIX; 18, XIII
Thrift Supervision Office, Department of the 12, V
Treasury
Trade Representative, United States, Office of 15, XX
Transportation, Department of 2, XII; 5, L
Commercial Space Transportation 14, III
Contract Appeals, Board of 48, 63
Emergency Management and Assistance 44, IV
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II
Federal Motor Carrier Safety Administration 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 47, IV; 49, V
Pipeline and Hazardous Materials Safety 49, I
Administration
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Surface Transportation Board 49, X
Transportation Statistics Bureau 49, XI
Transportation, Office of 7, XXXIII
Transportation Security Administration 49, XII
Transportation Statistics Bureau 49, XI
Travel Allowances, Temporary Duty (TDY) 41, 301
Treasury Department 5, XXI; 12, XV; 17, IV;
31, IX
Alcohol and Tobacco Tax and Trade Bureau 27, I
Community Development Financial Institutions 12, XVIII
Fund
Comptroller of the Currency 12, I
Customs and Border Protection 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Claims Collection Standards 31, IX
Federal Law Enforcement Training Center 31, VII
Financial Crimes Enforcement Network 31, X
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Investment Security, Office of 31, VIII
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision, Office of 12, V
Truman, Harry S. Scholarship Foundation 45, XVIII
United States and Canada, International Joint 22, IV
Commission
United States and Mexico, International Boundary 22, XI
and Water Commission, United States Section
[[Page 660]]
U.S. Copyright Office 37, II
Utah Reclamation Mitigation and Conservation 43, III
Commission
Veterans Affairs Department 2, VIII; 38, I
Federal Acquisition Regulation 48, 8
Veterans' Employment and Training Service, 41, 61; 20, IX
Office of the Assistant Secretary for
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agricultural Outlook Board 7, XXXVIII
[[Page 661]]
List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations (CFR) that
were made by documents published in the Federal Register since January
1, 2009 are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters, parts and
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the
annual edition of the monthly List of CFR Sections Affected (LSA). The
LSA is available at www.fdsys.gov. For changes to this volume of the CFR
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The
``List of CFR Sections Affected 1986-2000'' is available at
www.fdsys.gov.
2009
7 CFR
74 FR
Page
Subtitle B
Chapter IV
400 Authority citation revised.....................................8704
400.90 Amended.....................................................8704
400.91 (c) introductory text and (d) amended; (e) added............8704
400.93 (a) amended.................................................8704
400.94 (a) amended.................................................8704
400.700--400.768 (Subpart V) Heading revised.......................8705
400.700 Revised....................................................8705
400.701 Amended....................................................8705
400.714 Removed....................................................8705
400.715 Removed....................................................8705
400.716 Removed....................................................8705
400.717 Removed....................................................8705
400.718 Removed....................................................8705
400.719 Removed....................................................8705
400.720 Removed....................................................8705
400.721 Removed....................................................8705
400.722 Removed....................................................8705
400.767 (a)(1)(ii) and (iii) correctly revised; (a)(1)(iv)
correctly added............................................66029
402 Regulation at 73 FR 70864 confirmed...........................45543
402.4 Regulation at 73 FR 70864 confirmed.........................45543
407 Authority citation revised....................................11643
Regulation at 73 FR 70864 confirmed............................45543
407.9 Correctly amended...........................................11643
Regulation at 73 FR 70864 confirmed; amended...................45543
457 Authority citation revised....................................11643
Regulation at 73 FR 70865 confirmed............................45543
457.8 Correctly amended...........................................11643
(b) amended; interim...........................................28156
Regulation at 74 FR 28156 confirmed; (b) amended...............61018
457.136 Revised...................................................13059
457.138 Amended...................................................32055
457.149 Amended...................................................32057
Corrected......................................................35113
457.156 Removed...................................................13061
457.171 Added......................................................8709
Correctly amended..............................................26281
458.8 Regulation at 73 FR 70865 confirmed; amended................45543
Chapter VI
610.21--610.25 (Subpart C) Revised................................66912
636 Revised; interim...............................................2794
636.3 Amended.....................................................34211
636.4 (a)(11) correctly revised...................................10674
636.7 (f) correctly revised.......................................10674
650 Authority citation revised....................................33322
650.6 (b) revised; (c) added; interim.............................33322
652.1 (a) amended; (b) revised; interim............................2805
652.2 Amended; interim.............................................2805
[[Page 662]]
652.3 (c)(3) amended; (c)(4) redesignated as (c)(5); new (c)(4)
added; interim..............................................2805
652.5 (e) revised; (f) through (j) redesignated as (g) through
(k); new (f), (l) and (m) added; interim....................2805
652.6 (b) through (e) redesignated as (d) through (g); new (b)
and (c) added; new (e) amended; interim.....................2806
662 Added; interim.................................................1589
Revised........................................................63540
2010
7 CFR
75 FR
Page
Chapter IV
457 Authority citation revised....................................52231
457.8 Nomenclature changes; (b) revised; (c) through (f) added....15856
Amended.......15857, 15859, 15861, 15863--15867, 15870, 15872,
15873, 15875
457.101 Introductory text revised; amended........................15875
Amended..........................................15876, 15877, 15878
457.104 Introductory text revised; amended........................15878
Correctly amended..............................................59057
457.106 Introductory text revised; amended........................15879
457.108 Introductory text revised; amended........................15879
Amended........................................................15880
457.111 Introductory text revised; amended........................15880
457.113 Introductory text revised; amended..........15881, 15882, 15883
457.116 Introductory text revised; amended........................15883
457.118 Revised...................................................15883
457.130 Introductory text revised; amended........................15887
457.131 Introductory text revised; amended........................15887
Introductory text correctly revised............................59057
457.135 Introductory text revised; amended........................15887
457.140 Introductory text revised; amended........................15887
457.141 Introductory text revised; amended........................15888
457.157 Introductory text revised; amended........................15889
Removed........................................................44717
Correctly amended..............................................59058
457.158 Introductory text revised; amended........................52231
457.159 Amended...................................................44717
457.161 Introductory text revised; amended..........15889, 15890, 15891
457.171 Introductory text revised; amended........................15891
457.173 Added.....................................................15607
Chapter VI
625 Revised........................................................6546
636 Revised.......................................................71338
650 Regulation at 74 FR 33322 confirmed; authority citation
revised.....................................................6556
650.6 Regulation at 74 FR 33322 confirmed; (c) revised; (d) added
6556
652.1--652.7 (Subpart A) Revised...................................6845
652.2 Correctly amended...........................................48273
Corrected; CFR correction......................................81832
2011
7 CFR
76 FR
Page
Chapter IV
407.9 Amended......................................................4804
457 Technical correction...........................................4201
457.105 Amended...................................................32068
457.106 Amended....................................................4804
457.130 Amended....................................................4804
457.137 Amended....................................................4804
457.149 Amended....................................................4804
457.151 Amended....................................................4804
457.154 Amended....................................................4804
457.155 Amended....................................................4805
Chapter V
550.28 (b)(1) amended..............................................4805
Chapter VI
622.30 (d) added..................................................19684
624.6 (a)(2) revised..............................................19684
625.4 (b) revised.................................................19684
2012
7 CFR
77 FR
Page
Chapter IV
457.107 Amended; eff. 1-22-13.....................................75519
457.133 Amended...................................................59048
457.135 Introductory text revised; amended........................13965
[[Page 663]]
457.139 Introductory text revised; amended........................22469
457.153 Amended...................................................52592
Chapter V
505 Revised........................................................3069
520.4 (a) revised.................................................40250
Chapter VI
614 Revised.......................................................34190
2013
7 CFR
78 FR
Page
Chapter IV
402.4 Amended.....................................................52835
407 Revised.......................................................38507
457.105 Amended...................................................70487
457.107 Amended.............................................4305, 22411
457.121 Amended...................................................46253
457.154 Amended...................................................55173
457.167 Amended...................................................13459
Amended........................................................33691
[all]