[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 7
Agriculture
________________________
Parts 700 to 899
Revised as of January 1, 2020
Containing a codification of documents of general
applicability and future effect
As of January 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
SUBTITLE B--Regulations of the Department of Agriculture
(Continued)
Chapter VII--Farm Service Agency, Department of
Agriculture 5
Chapter VIII--Agricultural Marketing Service
(Federal Grain Inspection Service, Fair Trade
Practices Program), Department of Agriculture 467
Finding Aids:
Table of CFR Titles and Chapters........................ 637
Alphabetical List of Agencies Appearing in the CFR...... 657
List of CFR Sections Affected........................... 667
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 7 CFR 701.1 refers
to title 7, part 701,
section 1.
----------------------------
[[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
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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
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LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(b) The matter incorporated is in fact available to the extent
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2020
[[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, 2020.
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
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 700 to 899)
--------------------------------------------------------------------
SUBTITLE B--Regulations of the Department of Agriculture (Continued)
Part
chapter vii--Farm Service Agency, Department of Agriculture. 701
chapter viii--Agricultural Marketing Service (Federal Grain
Inspection Service, Fair Trade Practices Program),
Department of Agriculture................................. 800
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER VII--FARM SERVICE AGENCY, DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------
Editorial Note: 1. Nomenclature changes to chapter VII appear at 59 FR
60299, Nov. 23, 1994, as corrected at 59 FR 66438, Dec. 27, 1994, and at
60 FR 64297, Dec. 15, 1995.
SUBCHAPTER A--AGRICULTURAL CONSERVATION PROGRAM
Part Page
700 [Reserved]
701 Emergency Conservation Program, Emergency
Forest Restoration Program, and certain
related programs previously administered
under this part......................... 7
707 Payments due persons who have died,
disappeared, or have been declared
incompetent............................. 20
708 Record retention requirements--all programs. 23
SUBCHAPTER B--FARM MARKETING QUOTAS, ACREAGE ALLOTMENTS, AND PRODUCTION
ADJUSTMENT
714 Refunds of penalties erroneously, illegally,
or wrongfully collected................. 24
718 Provisions applicable to multiple programs.. 26
SUBCHAPTER C [RESERVED]
SUBCHAPTER D--SPECIAL PROGRAMS
750 Soil Bank................................... 51
755 Reimbursement Transportation Cost Payment
Program for Geographically Disadvantaged
Farmers and Ranchers.................... 51
759 Disaster designations and notifications..... 56
760 Indemnity payment programs.................. 60
761 Farm loan programs; general program
administration.......................... 177
762 Guaranteed farm loans....................... 201
763 Land Contract Guarantee Program............. 239
764 Direct loan making.......................... 248
765 Direct loan servicing--regular.............. 272
766 Direct loan servicing--special.............. 287
[[Page 6]]
767 Inventory property management............... 340
768 [Reserved]
769 Highly Fractionated Indian Land Loan Program 346
770 Indian tribal land aquisition loans......... 352
771 Boll Weevil Eradication Loan Program........ 356
772 Servicing minor program loans............... 359
773 Special Apple Loan Program.................. 365
774 Emergency Loan for Seed Producers Program... 368
780 Appeal regulations.......................... 371
781 Disclosure of foreign investment in
agricultural land....................... 378
782 End-Use Certificate Program................. 384
784 2004 Ewe Lamb Replacement and Retention
Payment Program......................... 390
785 Certified State Mediation Program........... 394
786 Dairy Disaster Assistance Payment Program
(DDAP-III).............................. 401
789 Agriculture Priorities and Allocations
System (APAS)........................... 409
SUBCHAPTER E--PROVISIONS COMMON TO MORE THAN ONE PROGRAM
792 Debt settlement policies and procedures..... 428
795 Payment limitation.......................... 437
SUBCHAPTER F--PUBLIC RECORDS
798 Availability of information to the public... 444
SUBCHAPTER G--ENVIRONMENTAL PROTECTION
799 Compliance with the National Environmental
Policy Act.............................. 446
[[Page 7]]
SUBCHAPTER A_AGRICULTURAL CONSERVATION PROGRAM
PART 700 [RESERVED]
PART 701_EMERGENCY CONSERVATION PROGRAM, EMERGENCY FOREST RESTORATION
PROGRAM, AND CERTAIN RELATED PROGRAMS PREVIOUSLY ADMINISTERED UNDER
THIS PART--Table of Contents
Subpart A_General
Sec.
701.1 Administration.
701.2 Definitions.
701.3-701.12 [Reserved]
701.13 Submitting requests.
701.14 Onsite inspections.
701.15 Starting practices before cost-share request is submitted; non-
entitlement to payment; payment subject to the availability of
funds.
701.16 Practice approval.
701.17-701.20 [Reserved]
701.21 Filing payment application.
701.22 Eligibility to file for cost-share assistance.
701.23 Eligible costs.
701.24 Dividing cost-share among more than one participant.
701.25 Practices carried out with aid from ineligible persons or
ineligible legal entities.
701.26-701.30 [Reserved]
701.31 Maintenance and proper use of practices.
701.32 Failure to comply with program provisions.
701.33 Death, incompetency, or disappearance.
701.34 Appeals.
701.35 Compliance with regulatory measures.
701.36 Schemes and devices and claims avoidances.
701.37 Loss of control of property during the practice life span.
701.38-701.40 [Reserved]
701.41 Cost-share assistance not subject to claims.
701.42 Assignments.
701.43 Information collection requirements.
701.44 Agricultural Conservation Program (ACP) contracts.
701.45 Forestry Incentives Program (FIP) contracts.
Subpart B_Emergency Conservation Program
701.100-701.102 [Reserved]
701.103 Eligible losses, objective, and payments.
701.104 Producer eligibility.
701.105 Land eligibility.
701.106-701.109 [Reserved]
701.110 Qualifying minimum cost of restoration.
701.111 Prohibition on duplicate payments.
701.112 Eligible ECP practices.
701.113-701.116 [Reserved]
701.117 Average adjusted gross income limitation.
701.118-701.125 [Reserved]
701.126 Maximum cost-share percentage.
701.127 Maximum ECP payments per person or legal entity.
718.128 Repair or replacement of fencing.
701.129-701.149 [Reserved]
701.150 2005 hurricanes.
701.151 Definitions.
701.152 Availability of funding.
701.153 Debris removal and water for livestock.
701.154 [Reserved]
701.155 Nursery.
701.156 Poultry.
701.157 Private non-industrial forest land.
Subpart C_Emergency Forest Restoration Program
701.200-701.202 [Reserved]
701.203 Eligible measures, objectives, and assistance.
701.204 Participant eligibility.
701.205 Land eligibility.
701.206-701.209 [Reserved]
701.210 Qualifying minimum cost of restoration.
701.211 Prohibition on duplicate payments.
701.212 Eligible EFRP practices.
701.213-701.225 [Reserved]
701.226 Maximum financial assistance.
Authority: 16 U.S.C. 2201-2206; Sec. 101, Pub. L. 109-148, 119 Stat.
2747; and Pub. L. 111-212, 124 Stat. 2302
Source: 69 FR 10302, Mar. 4, 2004, unless otherwise noted.
Subpart A_General
Sec.701.1 Administration.
(a) Subject to the availability of funds, this part provides the
terms, conditions and requirements of the Emergency Conservation Program
(ECP) and the Emergency Forest Restoration Program (EFRP) administered
by the Farm Service Agency (FSA).
[[Page 8]]
Neither program is an entitlement program and payments will only be made
to the extent that the Deputy Administrator announces the eligibility of
benefits for certain natural disasters, the areas in which such benefits
will be available, the time period in which the disaster and the
rehabilitation must occur, and only so long as all the conditions for
eligibility specified in this part and elsewhere in law are met.
However, the Deputy Administrator will not apply any non-statutory
limitation on payments provided for in this part in such a way that it
would necessarily result in the non-expenditure of program funds
required to otherwise be made by law.
(b) ECP and EFRP are administered by the Administrator, FSA through
the Deputy Administrator, FSA, and shall be carried out in the field by
State and county FSA committees (State and county committees), subject
to the availability of funds. Except as otherwise provided in this rule,
discretionary determinations to be made under this rule will be made by
the Deputy Administrator. Matters committed to the discretion of the
Deputy Administrator shall be considered in all cases to be permissive
powers and no person or legal entity shall, under any circumstances, be
considered to be entitled to an exercise of such power in their favor.
(c) State and county committees, and representatives and employees,
do not have authority to modify or waive any regulations in this part.
(d) The State committee may take any action authorized or required
of the county committee by this part, but which the county committee has
not taken, such as:
(1) Correct or require a county committee to correct any action
taken by such county committee that is not in accordance with this part;
or
(2) Require a county committee to withhold taking any action that is
not in accordance with this part.
(e) No provision or delegation herein to a State or county committee
shall preclude the Administrator, FSA, or a designee, from determining
any question arising under the program or from reversing or modifying
any determination made by a State or county committee.
(f) The Deputy Administrator may authorize State and county
committees to waive or modify deadlines and other requirements in cases
where lateness or failure to meet such other requirements does not
adversely affect the operation of the program.
(g) The Deputy Administrator may limit the authority of state and
county committees to approve cost share in excess of specified amounts.
(h) Data furnished by the applicants will be used to determine
eligibility for program benefits. Furnishing the data is voluntary;
however, the failure to provide data could result in program benefits
being withheld or denied.
(i) FSA may consult with any other Federal agency, State agency, or
other provider of technical assistance for such assistance as is
determined by FSA to be necessary to implement ECP or EFRP. FSA is
responsible for the technical aspects of ECP and EFRP but may enter into
a Memorandum of Agreement with another party to provide technical
assistance. If the requirement for technical assistance results in undue
delay or significant hardship to producers in a county, the State
committee may request in writing that FSA waive this requirement for
that county. However, nothing in this paragraph or in this part creates
a right of appeal or action for an applicant with respect to provisions
relating to internal procedures of FSA.
(j) The provisions in this part shall not create an entitlement in
any person or legal entity to any ECP or EFRP cost share or claim or any
particular notice or form or procedure.
(k) Additional terms and conditions may be set forth in the
application or the forms participants will be required to sign for
participation in the ECP or EFRP.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70087, Nov. 17, 2010]
Sec.701.2 Definitions.
(a) The terms defined in part 718 of this chapter shall be
applicable to this part and all documents issued in accordance with this
part, except as otherwise provided in this section.
[[Page 9]]
(b) The following definitions shall apply to this part:
Agricultural producer means an owner, operator, or tenant of a farm
or ranch used to produce for food or fiber, crops (including but not
limited to, grain or row crops; seed crops; vegetables or fruits; hay
forage or pasture; orchards or vineyards; flowers or bulbs; or field
grown ornamentals) or livestock (including but not limited to, dairy or
beef cattle; poultry; swine; sheep or goats; fish or other animals
raised by aquaculture; other livestock or fowl) for commercial
production. Producers of animals raised for recreational uses only are
not considered agricultural producers.
Annual agricultural production means production of crops for food or
fiber in a commercial operation that occurs on an annual basis under
normal conditions.
Applicant means a person or legal entity who has submitted to FSA a
request to participate in the ECP or EFRP.
Commercial forest land means forest land with trees intended to be
harvested for commercial purposes that has a productivity potential
greater than or equal to 20 cubic feet per year of merchantable timber.
Cost-share payment means the payment made by FSA to assist a program
participant under this part to establish practices required to address
qualifying damage suffered in connection with a qualifying disaster.
Deputy Administrator means the Deputy Administrator for Farm
Programs, FSA, the ECP Program Manager, or designee.
Farmland means land devoted to agricultural production, including
land used for aquaculture, or other land as may be determined by the
Deputy Administrator.
Natural disaster means wildfires, hurricanes or excessive winds,
drought, ice storms or blizzards, floods, or other naturally-occurring
resource impacting events as determined by FSA. For EFRP, a natural
disaster also includes insect or disease infestations as determined by
FSA in consultation with other Federal and State agencies as
appropriate.
Nonindustrial private forest land means rural commercial forest
lands with existing tree cover, or which are suitable for growing trees,
that are owned by a private non-industrial forest landowner as defined
in this section.
Owners of nonindustrial private forest means, for purposes of the
EFRP, an individual, group, association, corporation, Indian Tribe, or
other legal private entity owning nonindustrial private forest land or
who receives concurrence from the landowner for making the claim in lieu
of the owner; and, for practice implementation, the one who holds a
lease on the land for a minimum of 10 years. Owners or lessees
principally engaged in the primary processing of raw wood products are
excluded from this definition. Owners of land leased to lessees who
would be excluded under the previous sentence are also excluded.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70087, Nov. 17, 2010; 84
FR 32841, July 10, 2019]
Sec. Sec.701.3-701.12 [Reserved]
Sec.701.13 Submitting requests.
(a) Subject to the availability of funds, the Deputy Administrator
shall provide for an enrollment period for submitting ECP or EFRP cost-
share requests.
(b) Requests may be accepted after the announced enrollment period,
if such acceptance is approved by the Deputy Administrator and is in
accordance with the purposes of the program.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec.701.14 Onsite inspections.
(a) An onsite inspection must be made before approval of any request
for ECP or EFRP assistance.
(b) Notwithstanding paragraph (a) of this section, onsite
inspections may be waived by FSA, in its discretion only, where damage
is so severe that an onsite inspection is unnecessary, as determined by
FSA.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
[[Page 10]]
Sec.701.15 Starting practices before cost-share request is submitted;
non-entitlement to payment; payment subject to the availability
of funds.
(a) Subject to paragraphs (b) and (c) of this section, costs will
not be shared for practices or components of practices that are started
before a request for cost share under this part is submitted with the
applicable county FSA office.
(b) Costs may be shared for drought and non-drought practices or
components of practices that are started before a request is submitted
with the county FSA office, only if:
(1) Considered and approved on a case-by-case basis in accordance
with instructions of the Deputy Administrator;
(2) The disaster that is the basis of a claim for cost-share
assistance created a situation that required the producer to take
immediate action to prevent further losses;
(3) The Deputy Administrator determines that the request for
assistance was filed within a reasonable amount of time after the start
of the enrollment period; and
(4) The practice was started no more than 60 days before the ECP or
EFRP designation was approved for the applicable county office.
(c) Any action taken prior to approval of a claim is taken at the
producer's own risk.
(d) An application for relief may be denied for any reason.
(e) All payments under this part are subject to the availability of
funds.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec.701.16 Practice approval.
(a) Requests shall be prioritized before approval based on factors
deemed appropriate by FSA, which include, but are not limited to:
(1) Type and degree of damage;
(2) Type of practices needed to address the problem;
(3) Availability of funds;
(4) Availability of technical assistance;
(5) Environmental concerns;
(6) Safety factors; or
(7) In the case of ECP, welfare of eligible livestock.
(b) Requests for cost-share assistance may be approved if:
(1) Funds are available; and
(2) The requested practice is determined eligible.
[69 FR 10302, Mar. 4, 2004, and amended at 75 FR 70088, Nov. 17, 2010]
Sec. Sec.701.17-701.20 [Reserved]
Sec.701.21 Filing payment application.
Cost-share assistance is conditioned upon the availability of funds
and the performance of the practice in compliance with all applicable
specifications and program regulations.
(a) Completion of practice. After completion of the approved
practice, the participant must certify completion and request payment by
the payment request deadline. FSA will provide the participant with a
form or another manner to be used to request payment.
(b) Proof of completion. Participants shall submit to FSA, at the
local county office, the information needed to establish the extent of
the performance of approved practices and compliance with applicable
program provisions.
(c) Payment request deadline. The time limits for submission of
information shall be determined by the Deputy Administrator. The payment
request deadline for each ECP practice will be provided in the agreement
after the application is approved. Time limits may be extended where
failure to submit required information within the applicable time limits
is due to reasons beyond the control of the participant.
Sec.701.22 Eligibility to file for cost-share assistance.
Any eligible participant, as defined in this part, who paid part of
the cost of an approved practice may file an application for cost-share
payment.
Sec.701.23 Eligible costs.
(a) Cost-share assistance may be authorized for all reasonable costs
incurred in the completion of the practice, up to the maximums provided
in Sec. Sec.701.126, 701.127, and 701.226.
(b) Eligible costs shall be limited as follows:
(1) Costs for use of personal equipment shall be limited to those
incurred
[[Page 11]]
beyond the normal operation of the eligible land.
(2) Costs for personal labor shall be limited to personal labor not
normally required in the operation of the eligible land.
(3) Costs for the use of personal equipment and labor must be less
than that charged for such equipment and labor by commercial contractors
regularly employed in such areas.
(4) Costs shall not exceed those needed to achieve the minimum
performance necessary to resolve the problem being corrected by the
practice. Any costs above those levels shall not be considered to be
eligible costs for purposes of calculations made under this part.
(c) Costs shall not exceed the practice specifications in Sec.
701.112(d) or Sec.701.212(d) for cost-share calculations.
(d) The gross amount on which the cost-share eligibility may be
computed will not include any costs that were reimbursed by a third
party including, but not limited to, an insurance indemnity payment.
(e) Total cost-share payments from all sources shall not exceed the
total of eligible costs of the practice to the applicant.
[69 FR 10302, Mar. 4, 2004, and amended at 75 FR 70088, Nov. 17, 2010]
Sec.701.24 Dividing cost-share among more than one participant.
(a) For qualifying cost-share assistance under this part, the cost
shall be credited to the participant who personally performed the
practice or who paid to have it performed by a third party. If a payment
or credit was made by one participant to another potential participant,
paragraph (c) of this section shall apply.
(b) If more than one participant contributed to the performance of
the practice, the cost-share assistance for the practice shall be
divided among those eligible participants in the proportion they
contributed to the performance of the practice. FSA may determine what
proportion was contributed by each participant by considering the value
of the labor, equipment, or material contributed by each participant and
any other factors deemed relevant toward performance.
(c) Allowance by a participant of a credit to another participant
through adjustment in rent, cash or other consideration, may be
considered as a cost of a practice to the paying party only if FSA
determines that such credit is directly related to the practice. An
applicant who was fully reimbursed shall be considered as not having
contributed to the practice performance.
Sec.701.25 Practices carried out with aid from ineligible persons
or ineligible legal entities.
Any assistance provided by someone other than the eligible
participant, including assistance from a State or Federal agency, shall
be deducted from the participant's total costs incurred for the practice
for the purpose of computing ECP or EFRP cost shares. If unusual
conditions exist, the Deputy Administrator may waive deduction of such
contributions upon a request from the State committee and demonstration
of the need for such a waiver.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. Sec.701.26-701.30 [Reserved]
Sec.701.31 Maintenance and proper use of practices.
(a) Each participant receiving cost-share assistance is responsible
for the required maintenance and proper use of the practice. Some
practices have an established life span or minimum period of time during
which they are expected to function as a conservation practice with
proper maintenance. Cost-share assistance shall not be authorized for
normal upkeep or maintenance of any practice.
(b) If a practice is not properly maintained for the established
life span, the participant may be required to refund all or part of
cost-share assistance received. The Deputy Administrator will determine
what constitutes failure to maintain a practice and the amount that must
be refunded.
[[Page 12]]
Sec.701.32 Failure to comply with program provisions.
Costs may be shared for performance actually rendered even though
the minimum requirements otherwise established for a practice have not
been satisfied if a reasonable effort was made to satisfy the minimum
requirements and if the practice, as performed, will adequately address
the need for the practice.
Sec.701.33 Death, incompetency, or disappearance.
In case of death, incompetency, or disappearance of any participant,
any cost-share payment due shall be paid to the successor, as determined
in accordance with part 707 of this chapter.
Sec.701.34 Appeals.
Part 11 of this title and parts 614 and 780 of this chapter apply to
determinations made under this part.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec.701.35 Compliance with regulatory measures.
Participants who perform practices shall be responsible for
obtaining the authorities, permits, rights, easements, or other
approvals necessary to the performance and maintenance of the practices
according to applicable laws and regulations. The ECP or EFRP
participant shall be wholly responsible for any actions taken with
respect to the project and shall, in addition, be responsible for
returning and refunding any ECP or EFRP cost shares made, where the
purpose of the project cannot be accomplished because of the applicants'
lack of clearances or other problems.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec.701.36 Schemes and devices and claims avoidances.
(a) If FSA determines that a participant has taken any action
designed to defeat, or has the effect of defeating, the purposes of this
program, the participant shall be required to refund all or part of any
of the program payments otherwise due or paid that participant or
related person or legal entity for that particular disaster. These
actions include, but are not limited to, failure to properly maintain or
deliberately destroying a practice and providing false or misleading
information related to practices, costs, or arrangements between
entities or individuals that would have an effect on any eligibility
determination, including, but not limited to, a payment limit
eligibility.
(b) All or any part of cost-share assistance that otherwise would be
due any participant may be withheld, or required to be refunded, if the
participant has adopted, or participated in, any scheme or device
designed to evade the maximum cost-share limitation that applies to the
program or to evade any other requirement or provision of the program or
this part.
(c) If FSA determines that a participant has employed any scheme or
device to deprive any other person or legal entity of cost-share
assistance, or engaged in any actions to receive payments under this
part that also were designed to avoid claims of the United States or its
instrumentalities or agents against that party, related parties, or
third parties, the participant shall refund all or part of any of those
program payments paid to that participant for the project.
(d) For purposes of this section, a scheme or device can include,
but is not limited to, instances of coercion, fraud, or
misrepresentation regarding the claim for ECP or EFRP assistance and the
facts and circumstances surrounding such claim.
(e) A participant who has knowingly supplied false information or
filed a false claim shall be ineligible for cost-share assistance
related to the disaster for which the false information was filed, or
for any period of time FSA deems appropriate. False information or a
false claim includes, but is not limited to, a request for payment for a
practice not carried out, a false billing, or a billing for practices
that do not meet required specifications.
[69 FR 10302, Mar. 4, 2004, and amended at 75 FR 70088, Nov. 17, 2010]
Sec.701.37 Loss of control of the property during the practice life span.
In the event of voluntary or involuntary loss of control of the land
by the
[[Page 13]]
ECP or EFRP cost-share recipient during the practice life-span, if the
person or legal entity acquiring control elects not to become a
successor to the ECP or EFRP agreement and the practice is not
maintained, each participant who received cost-share assistance for the
practice may be jointly and severally liable for refunding any ECP or
EFRP cost-share assistance related to that practice. The practice life
span, for purposes of this section, includes any maintenance period that
is essential to its success.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. Sec.701.38-701.40 [Reserved]
Sec.701.41 Cost-share assistance not subject to claims.
Any cost-share assistance or portion thereof due any participant
under this part shall be allowed without regard to questions of title
under State law, and without regard to any claim or lien against any
crop or property, or proceeds thereof, except liens and other claims of
the United States or its instrumentalities. The regulations governing
offsets and withholdings at parts 792 and 1403 of this title shall be
applicable to this program and the provisions most favorable to a
collection of the debt shall control.
Sec.701.42 Assignments.
Participants may assign ECP cost-share assistance payments, in whole
or in part, according to part 1404 of this title.
Sec.701.43 Information collection requirements.
Information collection requirements contained in this part have been
approved by the Office of Management and Budget under the provisions at
44 U.S.C. Chapter 35 and have been assigned OMB Number 0560-0082.
Sec.701.44 Agricultural Conservation Program (ACP) contracts.
Contracts for ACP that are, or were, administered under this part or
similar contracts executed in connection with the Interim Environmental
Quality Incentives Program, shall, unless the Deputy Administrator
determines otherwise, be administered under, and be subject to, the
regulations for ACP contracts and the ACP program that were contained in
the 7 CFR parts 700 to 899, edition revised as of January 1, 1998, and
under the terms of the agreements that were entered into with
participants.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec.701.45 Forestry Incentives Program (FIP) contracts.
The regulations governing the FIP as of July 31, 2002, and contained
in the 7 CFR parts 700 to 899, edition revised as of January 1, 2002,
shall continue to apply to FIP contracts in effect as of that date,
except as provided in accord with a delegation of the administration of
that program and such delegation and actions taken thereunder shall
apply to any other FIP matters as may be at issue or in dispute.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Subpart B_Emergency Conservation Program
Sec. Sec.701.100-701.102 [Reserved]
Sec.701.103 Eligible losses, objective, and payments.
(a) FSA will provide cost-share assistance to farmers and ranchers
to rehabilitate farmland damaged by wind erosion, floods, hurricanes,
wildfire, or other natural disasters as determined by the Deputy
Administrator, and to carry out emergency water conservation measures
during periods of severe drought, subject to the availability of funds
and only for areas, natural disasters, and time periods approved by the
Deputy Administrator.
(b) The objective of the ECP is to make cost-share assistance
available to eligible participants on eligible land for certain
practices, to rehabilitate farmland damaged by floods, hurricanes,
wildfire, wind erosion, or other natural disasters, and for the
installation of water conservation measures during periods of severe
drought.
(c) Payments may also be made under this subpart for:
[[Page 14]]
(1) Emergency water conservation or water enhancement measures
(including measures to assist confined livestock) during periods of
severe drought; and
(2) Floodplain easements for runoff and other emergency measures
that the Deputy Administrator determines is necessary to safeguard life
and property from floods, drought, and the products of erosion on any
watershed whenever fire, flood, or other natural occurrence is causing
or has caused, a sudden impairment of the watershed.
(d) Payments under this part are subject to the availability of
appropriated funds and any limitations that may otherwise be provided
for by Congress.
[69 FR 10302, Mar. 4, 2004. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010; 84 FR 32841, July 10, 2019]
Sec.701.104 Producer eligibility.
(a) To be eligible to participate in the ECP the Deputy
Administrator must determine that a person or legal entity is an
agricultural producer with an interest in the land affected by the
natural disaster, and that person or legal entity must be liable for or
have paid the expense that is the subject of the cost share. The
applicant must be a landowner or user in the area where the qualifying
event has occurred, and must be a party who will incur the expense that
is the subject of the cost share.
(b) Federal agencies and States, including all agencies and
political subdivisions of a State, are ineligible to participate in the
ECP.
(c) All producer eligibility is subject to the availability of funds
and an application may be denied for any reason.
[69 FR 10302, Mar. 4, 2004. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010]
Sec.701.105 Land eligibility.
(a) For land to be eligible, the Deputy Administrator must determine
that land that is the subject of the cost share:
(1) Will have new conservation problems caused as a result of a
natural disaster that, if not treated, would:
(i) Impair or endanger the land;
(ii) Materially affect the productive capacity of the land;
(iii) Represent unusual damage that, except for wind erosion, is not
of the type likely to recur frequently in the same area; and
(iv) Be so costly to repair that Federal assistance is or will be
required to return the land to productive agricultural use. Conservation
problems existing prior to the disaster are not eligible for cost-share
assistance.
(2) Be physically located in a county in which the ECP has been
implemented; and
(3) Be one of the following:
(i) Land expected to have annual agricultural production,
(ii) A field windbreak or a farmstead shelterbelt on which the ECP
practice to be implemented involves removing debris that interferes with
normal farming operations on the farm and correcting damage caused by
the disaster; or
(iii) A farm access road on which debris interfering with the normal
farming operation needs to be removed.
(b) Land is ineligible for cost share if the Deputy Administrator
determines that it is, as applicable:
(1) Owned or controlled by the United States;
(2) Owned or controlled by States, including State agencies or other
political subdivisions of a State;
(3) Protected by a levee or dike that was not effectively and
properly functioning prior to the disaster, or is protected, or intended
to be protected, by a levee or dike not built to U.S. Army Corps of
Engineers, NRCS, or comparable standards;
(4) Adjacent to water impoundment reservoirs that are subject to
inundation when the reservoir is filled to capacity;
(5) Land on which levees or dikes are located;
(6) Subject to frequent damage or susceptible to severe damage
according to paragraph (c) of this section;
(7) Subject to flowage or flood easements and inundation when water
is released in normal operations;
(8) Between any levee or dike and a stream, river, or body of water,
including land between two or more levees or dikes;
[[Page 15]]
(9) Located in an old or new channel of a stream, creek, river or
other similar body of water, except that land located within or on the
banks of an irrigation canal may be eligible if the Deputy Administrator
determines that the canal is not a channel subject to flooding;
(10) In greenhouses or other confined areas, including but not
limited to, land in corrals, milking parlors, barn lots, or feeding
areas;
(11) Land on which poor farming practices, such as failure to farm
on the contour, have materially contributed to damaging the land;
(12) Unless otherwise provided for, not considered to be in annual
agricultural production, such as land devoted to stream banks, channels,
levees, dikes, native woodland areas, roads, and recreational uses; or
(13) Devoted to trees including, but not limited to, timber
production.
(c) To determine the likely frequency of damage and of the
susceptibility of the land to severe damage under paragraph (b)(6) of
this section, FSA will consider all relevant factors, including, but not
limited to, the location of the land, the history of damage to the land,
and whether the land was or could have been protected by a functioning
levee or dike built to U. S. Army Corps of Engineers, NRCS, or
comparable standards. Further, in making such determinations,
information may be obtained and used from the Federal Emergency
Management Agency or any other Federal, State (including State agencies
or political subdivisions), or other entity or individual providing
information regarding, for example, flood susceptibility for the land,
soil surveys, aerial photographs, or flood plain data or other relevant
information.
[69 FR 10302, Mar. 4, 2004. Redesignated at 75 FR 70088, Nov. 17, 2010]
Sec. Sec.701.106-701.109 [Reserved]
Sec.701.110 Qualifying minimum cost of restoration.
(a) To qualify for assistance under Sec.701.103(a), the eligible
damage must be so costly that Federal assistance is or will be required
to return the land to productive agricultural use or to provide
emergency water for livestock.
(b) The Deputy Administrator shall establish the minimum qualifying
cost of restoration. Each affected State may be allowed to establish a
higher minimum qualifying cost of restoration.
(c) A producer may request a waiver of the qualifying minimum cost
of restoration. The waiver request shall document how failure to grant
the waiver will result in environmental damage or hardship to the
producer and how the waiver will accomplish the goals of the program.
[69 FR 10302, Mar. 4, 2004; 69 FR 22377, Apr. 26, 2004. Redesignated and
amended at 75 FR 70088, Nov. 17, 2010]
Sec.701.111 Prohibition on duplicate payments.
(a) Duplicate payments. Participants are not eligible to receive
funding under the ECP for land on which the participant has or will
receive funding under:
(1) The Wetland Reserve Program (WRP) provided for in 7 CFR part
1467;
(2) The Emergency Wetland Reserve Program (EWRP) provided for in 7
CFR part 623;
(3) The Emergency Watershed Protection Program (EWP), provided for
in 7 CFR part 624, for the same or similar expenses.
(4) Any other program that covers the same or similar expenses so as
to create duplicate payments, or, in effect, a higher rate of cost share
than is allowed under this part.
(b) Refund. Participants who receive any duplicate funds, payments,
or benefits shall refund any ECP payments received.
[69 FR 10302, Mar. 4, 2004, as amended at 71 FR 30265, May 26, 2006.
Redesignated at 75 FR 70088, Nov. 17, 2010]
Sec.701.112 Eligible ECP practices.
(a) Cost-share assistance may be offered for ECP practices to
replace or restore farmland, fences, or conservation structures to a
condition similar to that existing before the natural disaster. No
relief under this subpart shall be allowed to address conservation
problems existing before the disaster.
[[Page 16]]
(b) The practice or practices made available when the ECP is
implemented shall be only those practices authorized by FSA for which
cost-share assistance is essential to permit accomplishment of the
program goals.
(c) Cost-share assistance may be provided for permanent vegetative
cover, including establishment of the cover where needed, only in
conjunction with eligible structures or installations where cover is
needed to prevent erosion and/or siltation or to accomplish some other
ECP purpose.
(d) Practice specifications shall represent the minimum levels of
performance needed to address the ECP need.
[69 FR 10302, Mar. 4, 2004. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010]
Sec. Sec.701.113-701.116 [Reserved]
Sec.701.117 Average adjusted gross income limitation.
To be eligible for payments issued from the $16 million provided
under the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and
Iraq Accountability Appropriations Act, 2007 (Pub. L. 110-28, section
9003), each applicant must meet the provisions of the Adjusted Gross
Income Limitations at 7 CFR part 1400 subpart G.
[72 FR 45880, Aug. 16, 2007. Redesignated at 75 FR 70088, Nov. 17, 2010]
Sec. Sec.701.118-701.125 [Reserved]
Sec.701.126 Maximum cost-share percentage.
(a) In addition to other restrictions that may be applied by FSA, an
ECP participant shall not receive more than 75 percent of the total
allowable costs, as determined by this part, to perform the practice.
(b) However, notwithstanding paragraph (a) of this section, a
producer who is a limited resource, socially disadvantaged, or beginning
farmer or rancher that participates in ECP may receive up to 90 percent
of the total allowable costs expended to perform the practice as
determined under this part.
(c) In addition to other limitations that apply, in no case will the
ECP payment exceed 50 percent of what the Deputy Administrator has
determined is the agricultural value of the affected land.
[69 FR 10302, Mar. 4, 2004. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010; 84 FR 32841, July 10, 2019]
Sec.701.127 Maximum ECP payments per person or legal entity.
A person or legal entity, as defined in part 1400 of this title, is
limited to a maximum ECP cost-share of $500,000 per person or legal
entity, per natural disaster.
[75 FR 7088, Nov. 17, 2010, as amended at 84 FR 32841, July 10, 2019]
Sec.718.128 Repair or replacement of fencing.
(a) With respect to a payment to an agricultural producer for the
repair or replacement of fencing, the agricultural producer has the
option of receiving up to 25 percent of the projected payment,
determined based on the applicable percentage of the fair market value
of the cost of the repair or replacement, as determined by FSA before
the agricultural producer carries out the repair or replacement.
(b) If the funds provided under paragraph (a) of this section are
not spent by the agricultural producer within 60 calendar days of the
date on which the agricultural producer receives those funds, the funds
must be returned to FSA by a date determined by FSA.
(c) Payments made under this section are subject to the availability
of funds.
[84 FR 32841, July 10, 2019]
Sec. Sec.701.129-701.149 [Reserved]
Sec.701.150 2005 hurricanes.
In addition benefits elsewhere allowed by this part, claims related
to calendar year 2005 hurricane losses may be allowed to the extent
provided for in Sec. Sec.701.150 through 701.157. Such claims under
those sections will be limited to losses in counties that were declared
disaster counties by the President or the Secretary because of 2005
hurricanes and to losses to oyster reefs. Claims under Sec. Sec.
701.151 through 701.157 shall be subject to all normal
[[Page 17]]
ECP limitations and provisions except as explicitly provided in those
sections.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
Sec.701.151 Definitions.
The following definitions apply to Sec. Sec.701.152 through
701.157:
Above-ground irrigation facilities means irrigation pipes,
sprinklers, pumps, emitters, and any other integral part of the above
ground irrigation system.
Barn means a structure used for the housing of animals or farm
equipment.
Commercial forest land means forest land with trees intended to be
harvested for commercial purposes that has a productivity potential
greater than or equal to 20 cubic feet per year of merchantable timber.
Date of loss means the date the hurricane damage occurred in
calendar year 2005.
Eligible county means any county that was declared a disaster county
by the President or the Secretary because of a calendar year 2005
hurricane, that otherwise meets the eligibility requirements of this
part.
Forest management plan means a plan of action and direction on
forest lands to achieve a set of results usually specified as goals or
objectives consistent with program policies prepared or approved by a
natural resource professional, such as a State forestry agency
representative.
Poultry house means a building used to house live poultry for the
purpose of commercial food production.
Private non-industrial forest land means rural commercial forest
lands with existing tree cover, or which are suitable for growing trees,
that are owned by a private non-industrial forest landowner as defined
in this section.
Private non-industrial forest landowner means, for purposes of the
ECP for forestry, an individual, group, association, corporation, Indian
tribe, or other legal private entity owning non-industrial private
forest land or who receives concurrence from the landowner for making
the claim in lieu of the owner, and for practice implementation and who
holds a lease on the land for a minimum of 10 years. Owners or lessees
principally engaged in the primary processing of raw wood products are
excluded from this definition. Owners of land leased to lessees who
would be excluded under the previous sentence are also excluded.
Shade house means a metal or wood structure covered by a material
used for shade purposes.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
Sec.701.152 Availability of funding.
Payments under Sec. Sec.1701.53 through 701.157 are subject to the
availability of funds under Public Law 109-148.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010]
Sec.701.153 Debris removal and water for livestock.
Subject to the other eligibility provisions of this part, an ECP
participant addressing damage in an eligible county from hurricanes
during calendar year 2005 may be allowed up to 90 percent of the
participant's actual cost or of the total allowable cost for cleaning up
structures such as barns, shade houses and above-ground irrigation
facilities, for removing poultry house debris, including carcasses, and
for providing water for livestock.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
Sec.701.154 [Reserved]
Sec.701.155 Nursery.
(a) Subject to the other eligibility provisions of this part except
as provided explicitly in this section, assistance may be made available
in an eligible county under this section for the cost of removing
nursery debris such as nursery structures, shade houses, and above
ground irrigation facilities, where such debris was created in calendar
year 2005 by a 2005 hurricane.
(b) Notwithstanding Sec.701.126, an otherwise eligible ECP
participant may be allowed up to 90 percent of the participant's actual
cost or of the total allowable cost for losses described in paragraph
(a) of this section.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
[[Page 18]]
Sec.701.156 Poultry.
(a) Subject to the other eligibility provisions of this part except
as provided explicitly in this section, assistance may be allowed under
this section for uninsured losses in calendar year 2005 to a poultry
house in an eligible county due to a 2005 hurricane.
(b) Claimants under this section may be allowed an amount up to the
lesser of:
(1) The lesser of 50 percent of the participant's actual or the
total allowable cost of the reconstruction or repair of a poultry house,
or
(2) $50,000 per poultry house.
(c) The total amount of assistance provided under this section and
any indemnities for losses to a poultry house paid to a poultry grower,
may not exceed 90 percent of the total costs associated with the
reconstruction or repair of a poultry house.
(d) Poultry growers must provide information on insurance payments
on their poultry houses. Copies of contracts between growers and poultry
integrators may be required.
(e) Assistance under this section is limited to amounts necessary
for reconstruction and/or repair of a poultry house to the same size as
before the hurricane.
(f) Assistance is limited to poultry houses used to house poultry
for commercial enterprises. A commercial poultry enterprise is one with
a dedicated structure for poultry and a number of poultry that exceeds
actual non-commercial uses of poultry and their products at all times,
and from which poultry or related products are actually, and routinely,
sold in commercial quantities for food, fiber, or eggs. Unless otherwise
approved by FSA, a commercial quantity is a quantity per week that would
normally exceed $100 in sales.
(g) Poultry houses with respect to which claims are made under this
section must be reconstructed or repaired to meet current building
standards.
[71 FR 30265, May 26, 2006. Redesignated at 75 FR 70088, Nov. 17, 2010]
Sec.701.157 Private non-industrial forest land.
(a) Subject to the other eligibility provisions of this part except
as provided explicitly in this section, assistance made available under
this section with respect to private, non-industrial forest land in an
eligible county for costs related to reforestations, rehabilitation, and
related measures undertaken because of losses in calendar year 2005
caused by a 2005 hurricane. To be eligible, a non-industrial private
forest landowner must have suffered a loss of, or damage to, at least 35
percent of forest acres on commercial forest land of the forest
landowner in a designated disaster county due to a 2005 hurricane or
related condition. The 35 percent loss shall be determined based on the
value of the land before and after the hurricane event.
(b) During the 5-year period beginning on the date of the loss, the
eligible private non-industrial forest landowner must:
(1) Reforest the eligible damaged forest acres in accordance with a
forest management plan approved by FSA that is appropriate for the
forest type where the forest management plan is developed by a person or
legal entity with appropriate forestry credentials, as determined by the
Deputy Administrator;
(2) Use the best management practices included in the forest
management plan; and
(3) Exercise good stewardship on the forest land of the landowner
while maintaining the land in a forested state.
(c) Notwithstanding Sec.701.126, an ECP participant shall not
receive under this section more than 75 percent of the participant's
actual cost or of the total allowable cost of reforestation,
rehabilitation, and related measures.
(d) Payments under this section shall not exceed a maximum of $150
per acre for any acre.
(e) Requests will be prioritized based upon planting tree species
best suited to the site as stated in the forest management plan.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
[[Page 19]]
Subpart C_Emergency Forest Restoration Program
Source: 75 FR 70889, Nov. 17, 2010, unless otherwise noted.
Sec. Sec.701.200-701.202 [Reserved]
Sec.701.203 Eligible measures, objectives, and assistance.
(a) Subject to the availability of funds and only for areas, natural
disasters, and time periods for the natural disaster and rehabilitation
approved by the Deputy Administrator, FSA will provide financial
assistance to owners of nonindustrial private forest land who carry out
emergency measures to restore land damaged by a natural disaster as
determined by FSA.
(b) The objective of EFRP is to make financial assistance available
to eligible participants on eligible land for certain practices to
restore nonindustrial private forest land that has been damaged by a
natural disaster.
[75 FR 70889, Nov. 17, 2010, as amended at 84 FR 32841, July 10, 2019]
Sec.701.204 Participant eligibility.
(a) To be eligible to participate in EFRP, a person or legal entity
must be an owner of nonindustrial private forest land affected by a
natural disaster, and must be liable for or have the expense that is the
subject of the financial assistance. The owner must be a person or legal
entity (including an Indian tribe) with full decision-making authority
over the land, as determined by FSA, or with such waivers as may be
needed from lenders or others as may be required, to undertake program
commitments.
(b) Federal agencies and States, including all agencies and
political subdivisions of a State, are ineligible for EFRP.
(c) An application may be denied for any reason.
Sec.701.205 Land eligibility.
(a) For land to be eligible, it must be nonindustrial private forest
land and must, as determined by FSA:
(1) Have existing tree cover or have had tree cover immediately
before the natural disaster and be suitable for growing trees;
(2) Have damage to natural resources caused by a natural disaster
that, if not treated, would impair or endanger the natural resources on
the land and would materially affect future use of the land; and
(3) Be physically located in a county in which EFRP has been
implemented.
(b) Land is ineligible for EFRP if FSA determines that the land is
any of the following:
(1) Owned or controlled by the United States; or
(2) Owned or controlled by States, including State agencies or
political subdivisions of a State.
[75 FR 70889, Nov. 17, 2010, as amended at 84 FR 32841, July 10, 2019]
Sec. Sec.701.206-701.209 [Reserved]
Sec.701.210 Qualifying minimum cost of restoration.
(a) FSA will establish the minimum qualifying cost of restoration,
which may vary by State or region.
(b) An applicant may request a waiver of the qualifying minimum cost
of restoration. The waiver request must document how failure to grant
the waiver will result in environmental damage or hardship to the person
or legal entity, and how the waiver will accomplish the goals of the
program.
Sec.701.211 Prohibition on duplicate payments.
(a) Participants are not eligible to receive funding under EFRP for
land on which FSA determines that the participant has or will receive
funding for the same or similar expenses under:
(1) The Emergency Conservation Program provided for in subpart B of
this part;
(2) The Wetland Reserve Program (WRP) provided for in part 1467 of
this title;
(3) The Emergency Wetland Reserve Program (EWRP) provided for in
part 623 of this chapter;
(4) The Emergency Watershed Protection Program (EWP), provided for
in part 624 of this chapter; or
(5) Any other program that covers the same or similar expenses so as
to create duplicate payments, or, have the
[[Page 20]]
effect of creating in total, otherwise, a higher rate of financial
assistance than is allowed on its own under this part.
(b) Participants who receive any duplicate funds, payments, or
benefits must refund any EFRP payments received, except the Deputy
Administrator may reduce the refund amount to the amount determined
appropriate by the Deputy Administrator to ensure that the total amount
of assistance received by the owner of the land under all programs does
not exceed an amount otherwise allowed in this part.
Sec.701.212 Eligible EFRP practices.
(a) Financial assistance may be offered to eligible persons or legal
entities for EFRP practices to restore forest health and forest-related
resources on eligible land.
(b) Practice specifications must represent the minimum level of
performance needed to restore the land to the applicable FSA, NRCS,
Forest Service, or State forestry standard.
Sec. Sec.701.213-701.225 [Reserved]
Sec.701.226 Maximum financial assistance.
(a) In addition to other restrictions that may be applied by FSA, an
EFRP participant will not receive more than 75 percent of the lesser of
the participant's total actual cost or of the total allowable costs, as
determined by this subpart, to perform the practice.
(b) A person, or legal entity, as defined in part 1400 of this
title, is limited to a maximum cost-share of $500,000 per person or
legal entity, per natural disaster.
[75 FR 70889, Nov. 17, 2010, as amended at 84 FR 32841, July 10, 2019]
PART 707_PAYMENTS DUE PERSONS WHO HAVE DIED, DISAPPEARED,
OR HAVE BEEN DECLARED INCOMPETENT--Table of Contents
Sec.
707.1 Applicability.
707.2 Definitions.
707.3 Death.
707.4 Disappearance.
707.5 Incompetency.
707.6 Death, disappearance, or incompetency of one eligible to apply for
payment pursuant to the regulations in this part.
707.7 Release application.
Authority: 7 U.S.C. 1385 and 8786.
Source: 30 FR 6246, May 5, 1965, unless otherwise noted.
Sec.707.1 Applicability.
This part applies to all programs in title 7 of the Code of Federal
Regulations which are administered by the Farm Service Agency under
which payments are made to eligible program participants. This part also
applies to all other programs to which this part is applicable by the
individual program regulations.
Sec.707.2 Definitions.
``Person'' when relating to one who dies, disappears, or becomes
incompetent, prior to receiving payment, means a person who has earned a
payment in whole or in part pursuant to any of the programs to which
this part is applicable. ``Children'' shall include legally adopted
children who shall be entitled to share in any payment in the same
manner and to the same extent as legitimate children of natural parents.
``Brother'' or ``sister'', when relating to one who, pursuant to the
regulations in this part, is eligible to apply for the payment which is
due a person who dies, disappears, or becomes incompetent prior to the
receipt of such payment, shall include brothers and sisters of the half
blood who shall be considered the same as brothers and sisters of the
whole blood. ``Payment'' means a payment by draft, check or certificate
pursuant to any of the Programs to which this part is applicable.
Payments shall not be considered received for the purposes of this part
until such draft, check or certificate has been negotiated or used.
Sec.707.3 Death.
(a) Where any person who would otherwise be eligible to receive a
payment dies before the payment is received, payment may be released in
accordance with this section so long as, and only if, a timely program
application has been filed by the deceased before
[[Page 21]]
the death or filed in a timely way before or after the death by a person
legally authorized to act for the deceased. Timeliness will be
determined under the relevant program regulations. All program
conditions for payment under the relevant program regulations must have
been met for the deceased to be considered otherwise eligible for the
payment. However, the payment will not be made under this section
unless, in addition, a separate release application is filed in
accordance with Sec.707.7. If these conditions are met, payment may be
released without regard to the claims of creditors other than the United
States, in accordance with the following order of precedence:
(1) To the administrator or executor of the deceased person's
estate.
(2) To the surviving spouse, if there is no administrator or
executor and none is expected to be appointed, or if an administrator or
executor was appointed but the administration of the estate is closed
(i) prior to application by the administrator or executor for such
payment or (ii) prior to the time when a check, draft, or certificate
issued for such payment to the administrator or executor is negotiated
or used.
(3) If there is no surviving spouse, to the sons and daughters in
equal shares. Children of a deceased son or daughter of a deceased
person shall be entitled to their parent's share of the payment, share
and share alike. If there are no surviving direct descendants of a
deceased son or daughter of such deceased person, the share of the
payment which otherwise would have been made to such son or daughter
shall be divided equally among the surviving sons and daughters of such
deceased person and the estates of any deceased sons or daughters where
there are surviving direct descendants.
(4) If there is no surviving spouse and no direct descendant,
payment shall be made to the father and mother of the deceased person in
equal shares, or the whole thereof to the surviving father or mother.
(5) If there is no surviving spouse, no direct descendant, and no
surviving parent, payment shall be made to the brothers and sisters of
the deceased person in equal shares. Children of a deceased brother or
sister shall be entitled to their parent's share of the payment, share
and share alike. If there are no surviving direct descendants of the
deceased brother or sister of such deceased person, the share of the
payment which otherwise would have been made to such brother or sister
shall be divided equally among the surviving brothers and sisters of
such deceased person and the estates of any deceased brothers or sisters
where there are surviving direct descendants.
(6) If there is no surviving spouse, direct descendant, parent, or
brothers or sisters or their descendants, the payment shall be made to
the heirs-at-law in accordance with the law of the State of domicile of
the deceased person.
(b) If any person who is entitled to payment under the above order
of precedence is a minor, payment of his share shall be made to his
legal guardian, but if no legal guardian has been appointed payment
shall be made to his natural guardian or custodian for his benefit,
unless the minor's share of the payment exceeds $1,000, in which event
payment shall be made only to his legal guardian.
(c) Any payment which the deceased person could have received may be
made jointly to the persons found to be entitled to such payment or
shares thereof under this section or, pursuant to instructions issued by
the Farm Service Agency, a separate payment may be issued to each person
entitled to share in such payment.
[30 FR 6246, May 5, 1965, as amended at 75 FR 81835, Dec. 29, 2010]
Sec.707.4 Disappearance.
(a) Where any person who would otherwise be eligible to receive a
payment disappears before the payment is received, payment may be
released in accordance with this section so long as, and only if, a
timely program application has been filed by that person before the
disappearance or filed timely before or after the disappearance by
someone legally authorized to act for the person involved. Timeliness
will be determined under the relevant program regulations. All program
conditions for payment under the relevant program regulations must have
been met for the person involved to be considered otherwise eligible for
the payment. However,
[[Page 22]]
the payment will not be made unless, in addition, a separate release
application is filed in accordance with Sec.707.7. If these conditions
are met, payment may be released without regard to the claims of
creditors other than the United States, in accordance with the following
order of precedence:
(1) The conservator or liquidator of his estate, if one be duly
appointed.
(2) The spouse.
(3) An adult son or daughter or grandchild for the benefit of his
estate.
(4) The mother or father for the benefit of his estate.
(5) An adult brother or sister for the benefit of his estate.
(6) Such person as may be authorized under State law to receive
payment for the benefit of his estate.
(b) A person shall be deemed to have disappeared if (1) he has been
missing for a period of more than 3 months, (2) a diligent search has
failed to reveal his whereabouts, and (3) such person has not
communicated during such period with other persons who would be expected
to have heard from him. Evidence of such disappearance must be presented
to the county committee in the form of a statement executed by the
person making the application for payment, setting forth the above
facts, and must be substantiated by a statement from a disinterested
person who was well acquainted with the person who has disappeared.
[30 FR 6246, May 5, 1965, as amended at 75 FR 81835, Dec. 29, 2010]
Sec.707.5 Incompetency.
(a) Where any person who would otherwise be eligible to receive a
payment is adjudged incompetent by a court of competent jurisdiction
before the payment is received, payment may be released in accordance
with this section so long as, and only if, a timely and binding program
application has been filed by the person involved while capable or by
someone legally authorized to file an application for the person
involved. Timeliness is determined under the relevant program
regulations. In all cases, the payment application must have been timely
under the relevant program regulations and all program conditions for
payment must have been met by or on behalf of the person involved.
However, the payment will not be made unless, in addition, a separate
release application is filed in accordance with Sec.707.7. If these
conditions are met, payment may be released without regard to the claims
of creditors other than the United States, to the guardian or committee
legally appointed for the person involved. In case no guardian or
committee had been appointed, payment, if for not more than $1,000, may
be released without regard to claims of creditors other than the United
States, to one of the following in the following order for the benefit
of the person who was the subject of the adjudication:
(1) The spouse.
(2) An adult son, daughter, or grandchild.
(3) The mother or father.
(4) An adult brother or sister.
(5) Such person as may be authorized under State law to receive
payment for the person (see standard procedure prescribed for the
respective region).
(b) In case payment is more than $1,000, payment may be released
only to such person as may be authorized under State law to receive
payment for the incompetent, so long as all conditions for other
payments specified in paragraph (a) of this section and elsewhere in the
applicable regulations have been met. Those requirements include the
filing of a proper and timely and legally authorized program application
by or for the person adjudged incompetent. The release of funds under
this paragraph will be made without regard to claims of creditors other
than the United States unless the agency determines otherwise.
[75 FR 81836, Dec. 30, 2010]
Sec.707.6 Death, disappearance, or incompetency of one eligible to
apply for payment pursuant to the regulations in this part.
In case any person entitled to apply for a release of a payment
pursuant to the provisions of Sec.707.3, Sec.707.4, Sec.707.5, or
this section, dies, disappears, or is adjudged incompetent, as the case
may be, after he has applied for such payment but before the payment is
received, payment may be made upon proper application therefor, without
regard to claims of creditors other than
[[Page 23]]
the United States, to the person next entitled thereto in accordance
with the order of precedence set forth in Sec.707.3, Sec.707.4, or
Sec.707.5, as the case may be.
[30 FR 6246, May 5, 1965, as amended at 75 FR 81836, Dec. 29, 2010]
Sec.707.7 Release application.
No payment may be made under this part unless a proper program
application was filed in accordance with the rules for the program that
generated the payment. That application must have been timely and filed
by someone legally authorized to act for the deceased, disappeared, or
declared-incompetent person. The filer can be the party that earned the
payment themselves--such as the case of a person who filed a program
application before they died--or someone legally authorized to act for
the party that earned the payment. All program conditions for payment
must have been met before the death, disappearance, or incompetency
except for the timely filing of the application for payment by the
person legally authorized to act for the party earning the payment. But,
further, for the payment to be released under the rules of this part, a
second application must be filed. That second application is a release
application filed under this section. In particular, as to the latter,
where all other conditions have been met, persons desiring to claim
payment for themselves or an estate in accordance with this part 707
must do so by filing a release application on Form FSA-325,
``Application for Payment of Amounts Due Persons Who Have Died,
Disappeared or Have Been Declared Incompetent.If the person who died,
disappeared, or was declared incompetent did not apply for payment by
filing the applicable program application for payment form, such program
application for payment must also be filed in accordance with applicable
regulations. If the payment is made under the Naval Stores Conservation
Program, Part II of the Form FSA-325 shall be executed by the local
District Supervisor of the U.S. Forest Service. In connection with
applications for payment under all other programs itemized in Sec.
707.1, Form FSA-325, and program applications for payments where
required, shall be filed with the FSA county office where the person who
earned the payment would have been required to file his application.
[30 FR 6246, May 5, 1965, as amended at 75 FR 81836, Dec. 29, 2010]
PART 708_RECORD RETENTION REQUIREMENTS_ALL PROGRAMS--Table of Contents
Authority: Sec. 4, 49 Stat. 164, secs. 7-17, 49 Stat. 1148, as
amended; 16 U.S.C. 590d, 590g-590q.
Sec.708.1 Record retention period.
For the purposes of the programs in this chapter, no receipt,
invoice, or other record required to be retained by any agricultural
producer as evidence tending to show performance of a practice under any
such program needs to be retained by such producer more than two years
following the close of the program year of the program.
[25 FR 105, Jan. 7, 1960. Redesignated at 26 FR 5788, June 29, 1961]
[[Page 24]]
SUBCHAPTER B_FARM MARKETING QUOTAS, ACREAGE ALLOTMENTS,
AND PRODUCTION ADJUSTMENT
PART 714_REFUNDS OF PENALTIES ERRONEOUSLY, ILLEGALLY,
OR WRONGFULLY COLLECTED--Table of Contents
Sec.
714.35 Basis, purpose, and applicability.
714.36 Definitions.
714.37 Instructions and forms.
714.38 Who may claim refund.
714.39 Manner of filing.
714.40 Time of filing.
714.41 Statement of claim.
714.42 Designation of trustee.
714.43 Recommendation by county committee.
714.44 Recommendation by State committee.
714.45 Approval by Deputy Administrator.
714.46 Certification for payment.
Authority: Secs. 372, 375, 52 Stat. 65, as amended, 66, as amended;
7 U.S.C. 1372, 1375.
Source: 35 FR 12098, July 29, 1970, unless otherwise noted.
Sec.714.35 Basis, purpose, and applicability.
(a) Basis and purpose. The regulations set forth in this part are
issued pursuant to the Agricultural Adjustment Act of 1938, as amended,
for the purpose of prescribing the provisions governing refunds of
marketing quota penalties erroneously, illegally, or wrongfully
collected with respect to all commodities subject to marketing quotas
under the Act.
(b) Applicability. This part shall apply to claims submitted for
refunds of marketing quota penalties erroneously, illegally, or
wrongfully collected on all commodities subject to marketing quotas
under the Act. It shall not apply to the refund of penalties which are
deposited in a special deposit account pursuant to sections 314(b),
346(b), 356(b), or 359 of the Agricultural Adjustment Act of 1938, as
amended, or paragraph (3) of Pub. L. 74, 77th Congress, available for
the refund of penalties initially collected which are subsequently
adjusted downward by action of the county committee, review committee,
or appropriate court, until such penalties have been deposited in the
general fund of the Treasury of the United States after determination
that no downward adjustment in the amount of penalty is warranted. All
prior regulations dealing with refunds of penalties which were contained
in this part are superseded upon the effective date of the regulations
in this part.
Sec.714.36 Definitions.
(a) General terms. In determining the meaning of the provisions of
this part, unless the context indicates otherwise, words imparting the
singular include and apply to several persons or things, words imparting
the plural include the singular, words imparting the masculine gender
include the feminine as well, and words used in the present tense
include the future as well as the present. The definitions in part 719
of this chapter shall apply to this part. The provisions of part 720 of
this chapter concerning the expiration of time limitations shall apply
to this part.
(b) Other terms applicable to this part. The following terms shall
have the following meanings:
(1) ``Act'' means the Agricultural Adjustment Act of 1938, and any
amendments or supplements thereto.
(2) ``Claim'' means a written request for refund of penalty.
(3) ``Claimant'' means a person who makes a claim for refund of
penalty as provided in this part.
(4) ``County Office'' means the office of the Agricultural
Stabilization and Conservation County Committee.
(5) ``Penalty'' means an amount of money collected, including
setoff, from or on account of any person with respect to any commodity
to which this part is applicable, which has been covered into the
general fund of the Treasury of the United States, as provided in
section 372(b) of the Act.
(6) ``State office'' means the office of the Agricultural
Stabilization and Conservation State Committee.
Sec.714.37 Instructions and forms.
The Deputy Administrator shall cause to be prepared and issued such
[[Page 25]]
instructions and forms as are necessary for carrying out the regulations
in the part.
Sec.714.38 Who may claim refund.
Claim for refund may be made by:
(a) Any person who was entitled to share in the price or
consideration received by the producer with respect to the marketing of
a commodity from which a deduction was made for the penalty and bore the
burden of such deduction in whole or in part.
(b) Any person who was entitled to share in the commodity or the
proceeds thereof, paid the penalty thereon in whole or in part and has
not been reimbursed therefor.
(c) Any person who was entitled to share in the commodity or the
proceeds thereof and bore the burden of the penalty because he has
reimbursed the person who paid such penalty.
(d) Any person who, as buyer, paid the penalty in whole or in part
in connection with the purchase of a commodity, was not required to
collect or pay such penalty, did not deduct the amount of such penalty
from the price paid the producer, and has not been reimbursed therefor.
(e) Any person who paid the penalty in whole or in part as a surety
on a bond given to secure the payment of penalties and has not been
reimbursed therefor.
(f) Any person who paid the whole or any part of the sum paid as a
penalty with respect to a commodity included in a transaction which in
fact was not a marketing of such commodity and has not been reimbursed
therefor.
Sec.714.39 Manner of filing.
Claim for refund shall be filed in the county office on a form
prescribed by the Deputy Administrator. If more than one person is
entitled to file a claim, a joint claim may be filed by all such
persons. If a separate claim is filed by a person who is a party to a
joint claim, such separate claim shall not be approved until the
interest of each person involved in the joint claim has been determined.
Sec.714.40 Time of filing.
Claim shall be filed within 2 years after the date payment was made
to the Secretary. The date payment was made shall be deemed to be the
date such payment was deposited in the general fund of the Treasury as
shown on the certificate of deposit on which such payment was scheduled.
Sec.714.41 Statement of claim.
The claim shall show fully the facts constituting the basis of the
claim; the name and address of and the amount claimed by every person
who bore or bears any part or all of the burden of such penalty; and the
reasons why such penalty is claimed to have been erroneously, illegally,
or wrongfully collected. It shall be the responsibility of the county
committee to determine that any person who executes a claim as agent or
fiduciary is properly authorized to act in such capacity. There should
be attached to the claim all pertinent documents with respect to the
claim or duly authenticated copies thereof.
Sec.714.42 Designation of trustee.
Where there is more than one claimant and all the claimants desire
to appoint a trustee to receive and disburse any payment to be made to
them with respect to the claim, they shall be permitted to appoint a
trustee. The person designated as trustee shall execute the declaration
of trust.
Sec.714.43 Recommendation by county committee.
Immediately upon receipt of a claim, the date of receipt shall be
recorded on the face thereof. The county committee shall determine, on
the basis of all available information, if the data and representations
on the claim are correct. The county committee shall recommend approval
or disapproval of the claim, and attach a statement to the claim, signed
by a member of the committee, giving the reasons for their action. After
the recommendation of approval or disapproval is made by the county
committee, the claim shall be promptly sent to the State committee.
Sec.714.44 Recommendation by State committee.
A representative of the State committee shall review each claim
referred by the county committee. If a claim is
[[Page 26]]
sent initially to the State committee, it shall be referred to the
appropriate county committee for recommendation as provided in Sec.
714.43 prior to action being taken by the State committee. Any necessary
investigation shall be made. The State committee shall recommend
approval or disapproval of the claim, attaching a statement giving the
reasons for their action, which shall be signed by a representative of
the State committee. After recommending approval or disapproval, the
claim shall be promptly sent to the Deputy Administrator.
Sec.714.45 Approval by Deputy Administrator.
The Deputy Administrator shall review each claim forwarded to him by
the State committee to determine whether, (a) the penalty was
erroneously, illegally, or wrongfully collected, (b) the claimant bore
the burden of the payment of the penalty, (c) the claim was timely
filed, and (d) under the applicable law and regulations the claimant is
entitled to a refund. If a claim is filed initially with the Deputy
Administrator, he shall obtain the recommendations of the county
committee and the State committee if he deems such action necessary in
arriving at a proper determination of the claim. The claimant shall be
advised in writing of the action taken by the Deputy Administrator. If
disapproved, the claimant shall be notified with an explanation of the
reasons for such disapproval.
Sec.714.46 Certification for payment.
An officer or employee of the Department of Agriculture authorized
to certify public vouchers for payment shall, for and on behalf of the
Secretary of Agriculture, certify to the Secretary of the Treasury of
the United States for payment all claims for refund which have been
approved.
PART 718_PROVISIONS APPLICABLE TO MULTIPLE PROGRAMS--Table of Contents
Subpart A_General Provisions
Sec.
718.1 Applicability.
718.2 Definitions.
718.3 State committee responsibilities.
718.4 Authority for farm entry and providing information.
718.5 Rule of fractions.
718.6 Controlled substance.
718.7 Furnishing maps.
718.8 Administrative county and servicing FSA county office.
718.9 Signature requirements.
718.10 Time limitations.
718.11 Disqualification due to federal crop insurance fraud.
Subpart B_Determination of Acreage and Compliance
718.101 Measurements.
718.102 Acreage reports.
718.103 Prevented planted and failed acreage.
718.104 Late-filed and revised acreage reports.
718.105 Tolerances and adjustments.
718.106 Non-compliance and false acreage reports.
718.107 Acreages.
718.108 Measuring acreage including skip row acreage
718.109 Deductions.
718.110 Adjustments.
718.111 Notice of measured acreage.
718.112 Redetermination.
Subpart C_Reconstitution of Farms, Allotments, Quotas, and Base Acres
718.201 Farm constitution.
718.202 Determining the land constituting a farm.
718.203 County committee action to reconstitute a farm.
718.204 Reconstitution of base acres.
718.205 Substantive change in farming operation, and changes in related
legal entities.
718.206 Determining farms, tracts, and base acres when reconstitution is
made by division.
718.207 Determining base acres when reconstitution is made by
combination.
Subpart D_Equitable Relief From Ineligibility
718.301 Applicability.
718.302 Definitions and abbreviations.
718.303 Reliance on incorrect actions or information.
718.304 Failure to fully comply.
718.305 Forms of relief.
718.306 Finality.
718.307 Special relief approval authority for State Executive Directors.
Authority: 7 U.S.C. 1501-1531, 1921-2008v, 7201-7334, and 15 U.S.C.
714b.
Source: 61 FR 37552, July 18, 1996, unless otherwise noted.
[[Page 27]]
Subpart A_General Provisions
Source: 68 FR 16172, Apr. 3, 2003, unless otherwise noted.
Sec.718.1 Applicability.
(a) This part is applicable to all programs specified in chapters
VII and XIV of this title that are administered by the Farm Service
Agency (FSA) and to any other programs that adopt this part by
reference. This part governs how FSA administers marketing quotas,
allotments, base acres, and acreage reports for those programs to which
this part applies. The regulations to which this part applies are those
that establish procedures for measuring allotments and program eligible
acreage, for determining program compliance, farm reconstitutions,
application of finality, and equitable relief from compliance or
ineligibility.
(b) For all programs, except for those administered under parts 761
through 774 of this chapter:
(1) The provisions of this part will be administered under the
general supervision of the Administrator, FSA, and carried out in the
field by State and county FSA committees (State and county committees);
(2) State and county committees, and representatives and employees
thereof, do not have authority to modify or waive any regulations in
this part;
(3) No provisions or delegation herein to a State or county
committee will preclude the Administrator, FSA, or a designee, from
determining any question arising under the program or from reversing or
modifying any determination made by a State or county committee;
(4) The Deputy Administrator, FSA, may authorize State and county
committees to waive or modify deadlines and other requirements in cases
where lateness or failure to meet such other requirements does not
adversely affect the operation of the program.
(c) The programs under parts 761 through 774 will be administered
according to the part, or parts, applicable to the specific program.
[72 FR 63284, Nov. 8, 2007, as amended at 80 FR 41994, July 16, 2015]
Sec.718.2 Definitions.
Except as provided in individual parts of chapters VII and XIV of
this title, the following terms shall be as defined herein:
Administrative variance (AV) means the amount by which the
determined acreage of tobacco may exceed the effective allotment and be
considered in compliance with program regulations.
Allotment means an acreage for a commodity allocated to a farm in
accordance with the Agricultural Adjustment Act of 1938, as amended.
Allotment crop means any tobacco crop for which acreage allotments
are established pursuant to part 723 of this chapter.
Barley means barley that follows the standard planting and
harvesting practice of barley for the area in which the barley is grown.
Base acres means, with respect to a covered commodity on a farm, the
number of acres in effect on September 30, 2013, as defined in the
regulations in part 1412, subpart B, of this title that were in effect
on that date, subject to any reallocation, adjustment, or reduction. The
term ``base acres'' includes any generic base acres as specified in part
1412 planted to a covered commodity as specified in part 1412.
Beginning farmer or rancher means a person or legal entity (for
legal entities to be considered a beginning farmer or rancher, all
members must be related by blood or marriage and all members must be
beginning farmers or ranchers) for which both of the following are true
for the farmer or rancher:
(1) Has not operated a farm or ranch for more than 10 years; and
(2) Materially and substantially participates in the operation.
CCC means the Commodity Credit Corporation.
Combination means consolidation of two or more farms or parts of
farms, having the same operator, into one farm.
Common land unit means the smallest unit of land that has an
identifiable border located in one physical location (county), as
defined in this part, and all of the following in common:
(1) Owner;
(2) Management;
[[Page 28]]
(3) Cover; and
(4) Where applicable, producer association.
Common ownership unit means a distinguishable parcel of land
consisting of one or more tracts of land with the same owners, as
determined by FSA.
Constitution means the make-up of the farm before any change is made
because of change in ownership or operation.
Contiguous means sharing any part of a boundary but not overlapping.
Contiguous county means a county contiguous to the reference county
or counties.
Contiguous county office means the FSA county office that is in a
contiguous county.
Controlled environment means, with respect to those crops for which
a controlled environment is required or expected to be provided,
including but not limited to ornamental nursery, aquaculture (including
ornamental fish), and floriculture, as applicable under the particular
program, an environment in which everything that can practicably be
controlled with structures, facilities, growing media (including but not
limited to water, soil, or nutrients) by the producer, is in fact
controlled by the producer.
Controlled substances means the term set forth in 21 CFR part 1308.
Corn means field corn or sterile high-sugar corn that follows the
standard planting and harvesting practices for corn for the area in
which the corn is grown. Popcorn, corn nuts, blue corn, sweet corn, and
corn varieties grown for decoration uses are not corn.
County means the county or parish of a state. For Alaska, Puerto
Rico and the Virgin Islands, a county shall be an area designated by the
State committee with the concurrence of the Deputy Administrator.
County committee means the FSA county committee.
Crop reporting date means the latest date upon which the
Administrator, FSA will allow the farm operator, owner, or their agent
to submit a crop acreage report in order for the report to be considered
timely.
Cropland. (a) Means land which the county committee determines meets
any of the following conditions:
(1) Is currently being tilled for the production of a crop for
harvest. Land which is seeded by drilling, broadcast or other no-till
planting practices shall be considered tilled for cropland definition
purposes;
(2) Is not currently tilled, but it can be established that such
land has been tilled in a prior year and is suitable for crop
production;
(3) Is currently devoted to a one-row or two-row shelter belt
planting, orchard, or vineyard;
(4) Is in terraces that, were cropped in the past, even though they
are no longer capable of being cropped;
(5) Is in sod waterways or filter strips planted to a perennial
cover;
(6) Is preserved as cropland in accordance with part 1410 of this
title; or
(7) Is land that has newly been broken out for purposes of being
planted to a crop that the producer intends to, and is capable of,
carrying through to harvest, using tillage and cultural practices that
are consistent with normal practices in the area; provided further that,
in the event that such practices are not utilized other than for reasons
beyond the producer's control, the cropland determination shall be void
retroactive to the time at which the land was broken out.
(b) Land classified as cropland shall be removed from such
classification upon a determination by the county committee that the
land is:
(1) No longer used for agricultural production;
(2) No longer suitable for production of crops;
(3) Subject to a restrictive easement or contract that prohibits its
use for the production of crops unless otherwise authorized by the
regulation of this chapter;
(4) No longer preserved as cropland in accordance with the
provisions of part 1410 of this title and does not meet the conditions
in paragraphs (a)(1) through (a)(6) of this definition; or
(5) Converted to ponds, tanks or trees other than those trees
planted in compliance with a Conservation Reserve Program contract
executed pursuant to part 1410 of this title, or trees that are used in
one-or two-row shelterbelt plantings, or are part of an orchard or
vineyard.
[[Page 29]]
Current year means the year for which allotments, quotas, acreages,
and bases, or other program determinations are established for that
program. For controlled substance violations, the current year is the
year of the actual conviction.
Deputy Administrator means Deputy Administrator for Farm Programs,
Farm Service Agency, U.S. Department of Agriculture or their designee.
Determination means a decision issued by a State, county or area FSA
committee or its employees that affects a participant's status in a
program administered by FSA.
Determined acreage means that acreage established by a
representative of the Farm Service Agency by use of official acreage,
digitizing or planimetering areas on the photograph or other
photographic image, or computations from scaled dimensions or ground
measurements.
Direct and counter-cyclical program (DCP) cropland means land that
currently meets the definition of cropland, land that was devoted to
cropland at the time it was enrolled in a production flexibility
contract in accordance with part 1413 of this title and continues to be
used for agricultural purposes, or land that met the definition of
cropland on or after April, 4, 1996, and continues to be used for
agricultural purposes and not for nonagricultural commercial or
industrial use.
Division means the division of a farm into two or more farms or
parts of farms.
Double cropping means, as determined by the Deputy Administrator on
a regional basis, consecutive planting of two specific crops that have
the capability to be planted and carried to maturity for the intended
uses, as reported by the producer, on the same acreage within a 12-month
period. To be considered double cropping, the planting of two specific
crops must be in an area where such double cropping is considered
normal, or could be considered normal, for all growers under normal
growing conditions and growers are typically able to repeat the same
cycle successfully in a subsequent 12-month period.
Entity means a corporation, joint stock company, association,
limited partnership, limited liability partnership, limited liability
company, irrevocable trust, estate, charitable organization, or other
similar organization, including any such organization participating in
the farming operation as a partner in a general partnership, a
participant in a joint venture, or a participant in a similar
organization.
Extra Long Staple (ELS) Cotton means cotton that follows the
standard planting and harvesting practices of the area in which the
cotton is grown, and meets all of the following conditions:
(1) American-Pima, Sea Island, Sealand, all other varieties of the
Barbandense species of cotton and any hybrid thereof, and any other
variety of cotton in which 1 or more of these varieties is predominant;
and,
(2) The acreage is grown in a county designated as an ELS county by
the Secretary; and,
(3) The production from the acreage is ginned on a roller-type gin.
Family member means an individual to whom a person is related as
spouse, lineal ancestor, lineal descendant, or sibling, including:
(1) Great grandparent;
(2) Grandparent;
(3) Parent;
(4) Child, including a legally adopted child;
(5) Grandchild
(6) Great grandchildren;
(7) Sibling of the family member in the farming operation; and
(8) Spouse of a person listed in paragraphs (1) through (7) of this
definition.
Farm means a tract, or tracts, of land that are considered to be a
separate operation under the terms of this part provided further that
where multiple tracts are to be treated as one farm, the tracts must
have the same operator and must also have the same owner except that
tracts of land having different owners may be combined if all owners
agree to the treatment of the multiple tracts as one farm for these
purposes.
Farm inspection means an inspection by an authorized FSA
representative using aerial or ground compliance to determine the extent
of producer adherence to program requirements.
[[Page 30]]
Farm number means a number assigned to a farm by the county
committee for the purpose of identification.
Farmland means the sum of the DCP cropland, forest, acreage planted
to an eligible crop acreage as specified in 1437.3 of this title and
other land on the farm.
Field means a part of a farm which is separated from the balance of
the farm by permanent boundaries such as fences, permanent waterways,
woodlands, and croplines in cases where farming practices make it
probable that such cropline is not subject to change, or other similar
features.
GIS means Geographic Information System or a system that stores,
analyzes, and manipulates spatial or geographically referenced data. GIS
computes distances and acres using stored data and calculations.
GPS means Global Positioning System or a positioning system using
satellites that continuously transmit coded information. The information
transmitted from the satellites is interpreted by GPS receivers to
precisely identify locations on earth by measuring distance from the
satellites.
Grain sorghum means grain sorghum of a feed grain or dual purpose
variety (including any cross that, at all stages of growth, having
characteristics of a feed grain or dual purpose variety) that follows
the standard planting and harvesting practice for grain sorghum for the
area in which the grain sorghum was planted. Sweet sorghum is not
considered a grain sorghum.
Ground measurement means the distance between 2 points on the
ground, obtained by actual use of a chain tape, GPS with a minimum
accuracy level as determined by the Deputy Administrator, or other
measuring device.
Intended use means for a crop or a commodity, the end use for which
it is grown and produced.
Joint operation means a general partnership, joint venture, or other
similar business organization.
Landlord means one who rents or leases farmland to another.
Limited resource farmer or rancher means a farmer or rancher who is
both of the following:
(1) A person whose direct or indirect gross farm sales do not exceed
$176,800 (2014 program year) in each of the 2 calendar years that
precede the most immediately preceding complete taxable year before the
relevant program year that corresponds to the relevant program year (for
example, for the 2014 program year, the two years would be 2011 and
2012), adjusted upwards in later years for any general inflation; and
(2) A person whose total household income was at or below the
national poverty level for a family of four in each of the same two
previous years referenced in paragraph (1) of this definition. (Limited
resource farmer or rancher status can be determined using a Web site
available through the Limited Resource Farmer and Rancher Online Self
Determination Tool through National Resource and Conservation Service at
http://www.lrftool.sc.egov.usda.gov.)
(3) For legal entities, the sum of gross sales and household income
must be considered for all members.
Measurement service means a measurement of acreage or farm-stored
commodities performed by a representative of FSA and paid for by the
producer requesting the measurement.
Measurement service after planting means determining a crop or
designated acreage after planting but before the farm operator files a
report of acreage for the crop.
Measurement service guarantee means a guarantee provided when a
producer requests and pays for an authorized FSA representative to
measure acreage for FSA and CCC program participation unless the
producer takes action to adjust the measured acreage. If the producer
has taken no such action, and the measured acreage is later discovered
to be incorrect, the acreage determined pursuant to the measurement
service will be used for program purposes for that program year.
Minor child means an individual who is under 18 years of age. For
the purpose of programs under chapters VII and XIV of this title, State
court proceedings conferring majority on an individual under 18 years of
age will not change such an individual's status as a minor.
[[Page 31]]
Nonagricultural commercial or industrial use means land that is no
longer suitable for producing annual or perennial crops, including
conserving uses, or forestry products.
Normal planting period means that period during which the crop is
normally planted in the county, or area within the county, with the
expectation of producing a normal crop.
Normal row width means the normal distance between rows of the crop
in the field, but not less than 30 inches for all crops.
Oats means oats that follows the standard planting and harvesting
practice of oats for the area in which the oats are grown.
Operator means an individual, entity, or joint operation who is
determined by the FSA county committee to be in control of the farming
operations on the farm.
Owner means one who has legal ownership of farmland, including:
(1) Any agency of the Federal Government; however, such agency is
not eligible to receive any program payment;
(2) One who is buying farmland under a contract for deed; or
(3) One who has a life-estate in the property.
Partial reconstitution means a reconstitution that is made effective
in the current year for some crops, but is not made effective in the
current year for other crops. This results in the same farm having two
or more farm numbers in one crop year.
Participant means one who participates in, or receives payments or
benefits in accordance with any of the programs administered by FSA.
Pasture means land that is used to, or has the potential to, produce
food for grazing animals.
Person means an individual, or an individual participating as a
member of a joint operation or similar operation, a corporation, joint
stock company, association, limited stock company, limited partnership,
irrevocable trust, revocable trust together with the grantor of the
trust, estate, or charitable organization including any entity
participating in the farming operation as a partner in a general
partnership, a participant in a joint venture, a grantor of a revocable
trust, or a participant in a similar entity, or a State, political
subdivision or agency thereof. To be considered a separate person for
the purpose of this part, the individual or other legal entity must:
(1) Have a separate and distinct interest in the land or the crop
involved;
(2) Exercise separate responsibility for such interest; and
(3) Be responsible for the cost of farming related to such interest
from a fund or account separate from that of any other individual or
entity.
Physical location means the political county and State determined by
FSA for identifying a tract or common land unit, as applicable, under
this part. FSA will consider all the DCP cropland within an original
tract to be in one single physical location county and State based upon
95 percent or more of the tract's DCP cropland. For DCP cropland that
FSA determines lies outside the physical location (county) of the
original tract that is 10 acres or more and more than 5 percent of the
original tract, FSA will divide that land from the original tract and
establish a new tract for that area.
Planted and considered planted (P&CP) means with respect to an
acreage amount, the sum of the planted and prevented planted acres on
the farm approved by the FSA county committee for a crop. P&CP is
limited to initially planted or prevented planted crop acreage, except
for crops planted in an FSA approved double-cropping sequence.
Subsequently planted crop acreage and replacement crop acreage are not
included as P&CP.
Producer means an owner, operator, landlord, tenant, or
sharecropper, who shares in the risk of producing a crop and who is
entitled to share in the crop available for marketing from the farm, or
would have shared had the crop been produced. A producer includes a
grower of hybrid seed.
Quota means the pounds allocated to a farm for a commodity in
accordance with the Agricultural Adjustment Act of 1938, as amended.
Random inspection means an examination of a farm by an authorized
representative of FSA selected as a part of an impartial sample to
determine the adherence to program requirements.
[[Page 32]]
Reconstitution means a change in the land constituting a farm as a
result of combination or division.
Reported acreage means the acreage reported by the farm operator,
farm owner, farm producer, or their agent on a Form prescribed by the
FSA.
Required inspection means an examination by an authorized
representative of FSA of a farm specifically selected by application of
prescribed rules to determine adherence to program requirements or to
verify the farm operator's, farm owner's, farm producer, or agent's
report.
Rice means rice that follows the standard planting and harvesting
practices of the area excluding sweet, glutinous, or candy rice such as
Mochi Gomi.
Secretary means the Secretary of Agriculture of the United States,
or a designee.
Sharecropper means one who performs work in connection with the
production of a crop under the supervision of the operator and who
receives a share of such crop for its labor.
Skip-row or strip-crop planting means a cultural practice in which
strips or rows of the crop are alternated with strips of idle land or
another crop.
Socially disadvantaged farmer or rancher means a farmer or rancher
who is a member of a socially disadvantaged group whose members have
been subjected to racial, ethnic, or gender prejudice because of their
identity as members of a group without regard to their individual
qualities. Socially disadvantaged groups include the following and no
others unless approved in writing by the Deputy Administrator:
(1) American Indians or Alaskan Natives,
(2) Asians or Asian-Americans,
(3) Blacks or African-Americans,
(4) Hispanics or Hispanic-Americans,
(5) Native Hawaiians or other Pacific Islanders, and
(6) Women.
Staking and referencing means determining an acreage before planting
by:
(1) Measuring or computing a delineated area from ground
measurements and documenting the area measured; and, (2) Staking and
referencing the area on the ground.
Standard deduction means an acreage that is excluded from the gross
acreage in a field because such acreage is considered as being used for
farm equipment turn-areas. Such acreage is established by application of
a prescribed percentage of the area planted to the crop in lieu of
measuring the turn area.
State committee means the FSA State committee.
Subdivision means a part of a field that is separated from the
balance of the field by temporary boundary, such as a cropline which
could be easily moved or will likely disappear.
Subsequent crop means a crop following an initial crop that is not
in an approved double cropping combination.
Tenant means:
(1) One who rents land from another in consideration of the payment
of a specified amount of cash or amount of a commodity; or
(2) One (other than a sharecropper) who rents land from another
person in consideration of the payment of a share of the crops or
proceeds therefrom.
Tolerance means a prescribed amount within which the reported
acreage and/or production may differ from the determined acreage and/or
production and still be considered as correctly reported.
Tract means a unit of contiguous land under one ownership located in
one physical location (county), as defined in this part, which is
operated as a farm, or part of a farm.
Tract combination means the combining of two or more tracts if the
tracts have common ownership and are contiguous.
Tract division means the dividing of a tract into two or more tracts
because of a change in ownership or operation.
Turn-area means the area across the ends of crop rows which is used
for operating equipment necessary to the production of a row crop (also
called turn row, headland, or end row).
United States means all 50 States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico and any other territory or
possession of the United States.
Upland cotton means planted and stub cotton that is not considered
extra long staple cotton, and that follows the
[[Page 33]]
standard planting and harvesting practices of the area and is produced
from other than pure strain varieties of the Barbadense species, any
hybrid thereof, or any other variety of cotton in which one or more of
these varieties predominate. For program purposes, brown lint cotton is
considered upland cotton.
Veteran farmer or rancher means a farmer or rancher who has served
in the United States Army, Navy, Marine Corps, Air Force, and Coast
Guard, including the reserve components and who:
(1) Has not operated a farm or ranch;
(2) Has operated a farm or ranch for not more than 10 years; or
(3) Is a veteran (as defined as a person who served in the active
duty or either active duty for training or inactive duty during which
the individual was disabled, and who was discharged or released
therefrom under conditions other than dishonorable) who has first
obtained status as a veteran during the most recent 10-year period.
Wheat means wheat for feed or dual purpose variety that follows the
standard planting and harvesting practice of wheat for the area in which
the wheat is grown.
[68 FR 16172, Apr. 3, 2003; 69 FR 250, Jan. 5, 2004, as amended at 79 FR
74571, Dec. 15, 2014; 80 FR 41994, July 16, 2015; 84 FR 45886, Sept. 3,
2019]
Sec.718.3 State committee responsibilities.
(a) The State committee shall, with respect to county committees:
(1) Take any action required of the county committee, which the
county committee fails to take in accordance with this part;
(2) Correct or require the county committee to correct any action
taken by such committee, which is not in accordance with this part; or
(3) Require the county committee to withhold taking any action which
is not in accordance with this part.
(b) The State committee shall submit to the Deputy Administrator
requests to deviate from deductions prescribed in Sec.718.109, or the
error amount or percentage for refunds of redetermination costs as
prescribed in Sec.718.112.
[61 FR 37552, July 18, 1996, as amended at 80 FR 41994, July 16, 2015]
Sec.718.4 Authority for farm entry and providing information.
(a) This section applies to all farms that have a tobacco allotment
or quota under part 723 of this chapter and all farms that are currently
participating in programs administered by FSA.
(b) A representative of FSA may enter any farm that participates in
an FSA or CCC program in order to conduct a farm inspection as defined
in this part. A program participant may request that the FSA
representative present written authorization for the farm inspection
before granting access to the farm. If a farm inspection is not allowed
within 30 days of written authorization:
(1) All FSA and CCC program benefits for that farm shall be denied;
(2) The person preventing the farm inspection shall pay all costs
associated with the farm inspection;
(3) The entire crop production on the farm will be considered to be
in excess of the quota established for the farm; and
(4) For tobacco, the farm operator must furnish proof of disposition
of:
(i) All tobacco which is in addition to the production shown on the
marketing card issued with respect to such farm; and
(ii) No credit will be given for disposing of excess tobacco other
than that identified by a marketing card unless disposed of in the
presence of FSA in accordance with Sec.718.109 of this part.
(c) If a program participant refuses to furnish reports or data
necessary to determine benefits in accordance with paragraph (a) of this
section, or FSA determines that the report or data was erroneously
provided through the lack of good faith, all program benefits relating
to the report or data requested will be denied.
(d) Program participants requesting program benefits as a beginning
farmer or rancher, limited resource farmer or rancher, socially
disadvantaged farmer or rancher, or veteran farmer or rancher must
provide a certification of their status as a member of one of those
groups as required by the applicable program provisions.
[68 FR 16172, Apr. 3, 2003, as amended at 84 FR 45886, Sept. 3, 2019]
[[Page 34]]
Sec.718.5 Rule of fractions.
(a) Fractions shall be rounded after completion of the entire
associated computation. All mathematical calculations shall be carried
to two decimal places beyond the number of decimal places required by
the regulations governing each program. In rounding, fractional digits
of 49 or less beyond the required number of decimal places shall be
dropped; if the fractional digits beyond the required number of decimal
places are 50 or more, the figure at the last required decimal place
shall be increased by ``1'' as follows:
------------------------------------------------------------------------
Required decimal Computation Result
------------------------------------------------------------------------
Whole numbers...................... 6.49 (or less)........ 6
6.50 (or more)........ 7
Tenths............................. 7.649 (or less)....... 7.6
7.650 (or more)....... 7.7
Hundredths......................... 8.8449 (or less)...... 8.84
8.8450 (or more)...... 8.85
Thousandths........................ 9.63449 (or less)..... 9.634
9.63450 (or more)..... 9.635
0 thousandths...................... 10.993149 (or less)... 10.9931
10.993150 (or more)... 10.9932
------------------------------------------------------------------------
(b) The acreage of each field or subdivision computed for tobacco
and CCC disaster assistance programs shall be recorded in acres and
hundredths of an acre, dropping all thousandths of an acre. The acreage
of each field or subdivision computed for crops, except tobacco, shall
be recorded in acres and tenths of an acre, rounding all hundredths of
an acre to the nearest tenth.
Sec.718.6 Controlled substance.
(a) The following terms apply to this section:
(1) USDA benefit means the issuance of any grant, contract, loan, or
payment by appropriated funds of the United States.
(2) Person means an individual.
(b) Notwithstanding any other provision of law, any person convicted
under Federal or State law of:
(1) Planting, cultivating, growing, producing, harvesting, or
storing a controlled substance in any crop year is ineligible during the
crop year of conviction and the four succeeding crop years, for any of
the following USDA benefits:
(i) Any payments or benefits under part 1412 of this title;
(ii) Any payments or benefits for losses to crops or livestock
covered under disaster programs administered by FSA;
(iii) Any price support loan available in accordance with part 1421
of this title;
(iv) Any price support made under the Commodity Credit Corporation
Charter Act;
(v) A farm storage facility loan made under section 4(h) of the
Commodity Credit Corporation Charter Act or any other Act;
(vi) Crop Insurance under the Federal Crop Insurance Act;
(vii) A loan made or guaranteed under the Consolidated Farm and
Rural Development Act or any other law administered by FSA's Farm Loan
Programs.
(2) Possession or trafficking of a controlled substance, is
ineligible for any or all USDA benefits:
(i) At the discretion of the court,
(ii) To the extent and for a period of time the court determines.
(c) If a person denied benefits under this section is a shareholder,
beneficiary, or member of an entity or joint operation, benefits for
which the entity or joint operation is eligible will be reduced, for the
appropriate period, by a percentage equal to the total interest of the
shareholder, beneficiary, or member.
[72 FR 63284, Nov. 8, 2007, as amended at 84 FR 45886, Sept. 3, 2019]
Sec.718.7 Furnishing maps.
(a) A reasonable number, as determined by FSA, of reproductions of
photographs, mosaic maps, and other maps will be made available to the
owner of a farm, an insurance company reinsured by the Federal Crop
Insurance Corporation (FCIC), or a private party contractor performing
official duties on behalf of FSA, CCC, and other USDA agencies.
(b) For all others, reproductions will be made available at the rate
FSA determines will cover the cost of making such items available.
[80 FR 41994, July 16, 2015]
[[Page 35]]
Sec.718.8 Administrative county and servicing FSA county office.
(a) FSA farm records are maintained in an administrative county
determined by FSA. Generally, a farm's administrative county is based on
the physical location county of the farm. If all land on the farm is
physically located in one physical location county, the farm's records
will be administratively located in that physical location county.
(b) In cases where there is no FSA office in the county in which the
farm is physically located or where a servicing FSA county office is
responsible for more than one administrative county, the farm records
will be administratively located as specified in paragraph (a) of this
section and with a servicing FSA county office that FSA as designated as
responsible for that administrative county.
(c) Farm operators and owners can conduct their farm's business in
any FSA county office. FSA's designation of a farm's administrative
county is based on where land of the farm is located as specified in
paragraph (a) of this section or as might be required under paragraph
(b) of this section.
(d) Farm operators and owners can request a change to their
servicing FSA county office and that request may necessitate a change to
the farm's administrative county as specified in paragraph (a) or (b) of
this section. If the requested servicing FSA county office is not
responsible for and does not have an administrative county for the
physical location of the farm according to paragraphs (a) or (b) of this
section and FSA approves the request for change of servicing FSA county
office, FSA will designate the administrative county for the farm from
those available in the requested servicing FSA county office.
(e) If a county contiguous to the county in which the farm is
physically located in the same State does not have a servicing FSA
county office, the farm will be administratively located by FSA in a
contiguous county in another contiguous State that is convenient to the
farm operator and owner. Requests for changes to a farm's servicing FSA
county office, which may or may not result in a change to a farm's
administrative county under this section, must be submitted to FSA by
August 1 of each year for the change to take effect that calendar year.
(f) When land on the farm is physically located in more than one
county, the farm will be administered by a servicing FSA county office
determined by FSA to be the administrative county responsibility for
administration of programs for one or more of the physical counties
involved in the farm's constitution. Paragraph (b), (c), or (d) of this
section applies if changes occur to the servicing FSA county office and
administrative county.
(g) Farm operators and owners cannot request a change to a farm's
administrative county. The operator and owner of a farm serviced by an
FSA county office responsible for a farm's administrative county can
request a change of servicing FSA county office to another FSA servicing
county office in the same State by August 1 for the change to take
effect that calendar year. Review and approval of any change to the
servicing FSA county office is solely at the discretion of FSA. Requests
for change in servicing FSA county office, which may or may not result
in a change to a farm's administrative county, will be reviewed and
approved by county committee if all the following can be determined to
apply:
(1) The requested change does not impact the constitution of a farm;
(2) The requested change will not result in increased program
eligibility or additional benefits for the farm's producers that would
not be earned absent the change in servicing FSA county office and, if
applicable, administrative county being made; and
(3) The change is not to circumvent any of the provisions of other
program regulations to which this part applies.
(h) The State committee will submit all requests for exceptions from
regulations specified in this section to the Deputy Administrator.
[84 FR 45886, Sept. 3, 2019]
Sec.718.9 Signature requirements.
(a) When a program authorized by this chapter or chapter XIV of this
title requires the signature of a producer, landowner, landlord, or
tenant,
[[Page 36]]
then a spouse may sign all such FSA or CCC documents on behalf of the
other spouse, except as otherwise specified in this section, unless such
other spouse has provided written notification to FSA and CCC that such
action is not authorized. The notification must be provided to FSA for
each farm.
(b) A spouse may not sign a document on behalf of the other spouse
with respect to:
(1) Program document required to be executed in accordance with part
3 of this title;
(2) Easements entered into under part 1410 of this title;
(3) Power of attorney;
(4) Such other program documents as determined by FSA or CCC.
(c) An individual; duly authorized officer of a corporation; duly
authorized partner of a partnership; executor or administrator of an
estate; trustee of a trust; guardian; or conservator may delegate to
another the authority to act on their behalf with respect to FSA and CCC
programs administered by USDA service center agencies by execution of a
Power of Attorney, or such other form as approved by the Deputy
Administrator. FSA and CCC may, at their discretion, allow the
delegations of authority by other individuals through use of the Power
of Attorney or such other form as approved by the Deputy Administrator.
(d) Notwithstanding another provision of this regulation or any
other FSA or CCC regulation in this title, a parent may execute
documents on behalf of a minor child unless prohibited by a statute or
court order.
(e) Notwithstanding any other provision in this title, an authorized
agent of the Bureau of Indian Affairs (BIA) of the United States
Department of Interior may sign as agent for landowners with properties
affiliated with or under the management or trust of the BIA. For
collection purposes, such payments will be considered as being made to
the persons who are the beneficiaries of the payment or may,
alternatively, be considered as an obligation of all persons on the farm
in general. In the event of a need for a refund or other claim may be
collected, among other means, by other monies due such persons or the
farm.
(f) Documents that were previously acted on and approved by the FSA
county office or county committee will not subsequently be determined
inadequate or invalid because of the lack of signature authority of any
person signing the document on behalf of the applicant or any other
individual, entity, general partnership, or joint venture, unless the
person signing the program document knowingly and willfully falsified
the evidence of signature authority or a signature. However, FSA may
require affirmation of the document by those parties deemed appropriate
for an affirmation, as determined by the Deputy Administrator. Nothing
in this paragraph relieves participants of any other program
requirements.
[68 FR 16172, Apr. 3, 2003; 69 FR 250, Jan. 5, 2004, as amended at 80 FR
41995, July 16, 2015]
Sec.718.10 Time limitations.
Whenever the final date prescribed in any of the regulations in this
title for the performance of any act falls on a Saturday, Sunday,
national holiday, State holiday on which the office of the county or
State Farm Service Agency committee having primary cognizance of the
action required to be taken is closed, or any other day on which the
cognizant office is not open for the transaction of business during
normal working hours, the time for taking required action shall be
extended to the close of business on the next working day. Or in case
the action required to be taken may be performed by mailing, the action
shall be considered to be taken within the prescribed period if the
mailing is postmarked by midnight of such next working day. Where the
action required to be taken is with a prescribed number of days after
the mailing of notice, the day of mailing shall be excluded in computing
such period of time.
Sec.718.11 Disqualification due to Federal crop insurance violation.
(a) Section 515(h) of the Federal Crop Insurance Act (FCIA) provides
that a person who willfully and intentionally
[[Page 37]]
provides false or inaccurate information to the Federal Crop Insurance
Corporation (FCIC) or to an approved insurance provider with respect to
a policy or plan of FCIC insurance, after notice and an opportunity for
a hearing on the record, will be subject to one or more of the sanctions
described in section 515(h)(3). In section 515(h)(3), the FCIA specifies
that in the case of a violation committed by a producer, the producer
may be disqualified for a period of up to 5 years from receiving any
monetary or non-monetary benefit under a number of programs. The list
includes, but is not limited to, benefits under:
(1) The FCIA.
(2) The Agricultural Market Transition Act (7 U.S.C. 7201 et seq.),
including the Noninsured Crop Disaster Assistance Program under section
196 of that Act (7 U.S.C. 7333).
(3) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.).
(4) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et
seq.).
(5) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.).
(6) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et
seq.).
(7) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921
et seq.).
(8) Any law that provides assistance to a producer of an
agricultural commodity affected by a crop loss or a decline in prices of
agricultural commodities.
(b) Violation determinations are made by FCIC. However, upon notice
from FCIC to FSA that a producer has been found to have committed a
violation to which paragraph (a) of this section applies, that person
will be ineligible for payments under the programs specified in
paragraph (a) of this section that are funded by FSA for the same period
of time for which, as determined by FCIC, the producer will be
ineligible for crop insurance benefits of the kind referred to in
paragraph (a)(1) of this section. Appeals of the determination of
ineligibility will be administered under the rules set by FCIC.
(c) Other sanctions may also apply.
[72 FR 63284, Nov. 8, 2007]
Subpart B_Determination of Acreage and Compliance
Source: 68 FR 16176, Apr. 3, 2003, unless otherwise noted.
Sec.718.101 Measurements.
(a) Measurement services include, but are not limited to, measuring
land and crop areas, measuring quantities of farm-stored commodities,
and appraising the yields of crops in the field when required for
program administration purposes. The county committee will provide
measurement service if the producer requests such service and pays the
cost, except that measurement service is not available and will not be
provided to determine total acreage or production of a crop when the
request is made:
(1) For acreage, after the established final reporting date for the
applicable crop, unless a late filed report is accepted as provided in
Sec.718.104; or
(2) After the farm operator has furnished production evidence when
required for program administration purposes except as provided in this
subpart.
(b) Except for measurements and determinations performed by FSA in
accordance with late-filed acreage reports filed in accordance with
Sec.718.104, when a producer requests, pays for, and receives written
notice that measurement services have been furnished, the measured
acreage is guaranteed to be correct and used for all program purposes
for the current year even though an error is later discovered in the
measurement.
[84 FR 45887, Sept. 3, 2019]
Sec.718.102 Acreage reports.
(a) In order to be eligible for benefits, participants in the
programs specified in paragraphs (b)(1) through (b)(6) of this section
must submit accurate information annually as required by these
provisions.
(b)(1) Participants in programs for which eligibility for benefits
is tied to base acres must report the acreage of fruits and vegetables
planted for harvest on a farm enrolled in such program;
[[Page 38]]
(2) Participants in the programs governed by parts 1421 and 1427 of
this title must report the acreage planted to a commodity for harvest
for which a marketing assistance loan or loan deficiency payment is
requested;
(3) Participants in the programs governed by part 1410 of this title
must report the intended use of land enrolled in such programs;
(4) All participants in the programs governed by part 1437 of this
title must report all acreage and intended use of the eligible crop in
the country in which the producer has a share;
(5) Participants in the programs governed by part 723 of this
chapter and part 1464 of this title must report the acreage planted to
tobacco by kind on all farms that have an effective allotment or quota
greater than zero;
(6) All participants in the programs governed by parts 1412, 1421,
and 1427 of this title must report the use of all cropland on the farm.
(7) All producers reporting acreage as prevented planted acreage or
failed acreage must provide documentation that meets the provisions of
Sec.718.103 to the FSA county office where the farm is administered.
(c) The annual acreage reports required in paragraph (a) of this
section must be filed with the county committee by the farm operator,
farm owner, producer of the crop on the farm, or duly authorized
representative by the final reporting date applicable to the crop as
established by the Deputy Administrator.
(d) Participants in programs to which this part is applicable must
report all crops, in all counties, in which they have an interest. This
includes crops on cropland and noncropland, including native or improved
grass that will be hayed or grazed.
[68 FR 16176, Apr. 3, 2003, as amended at 71 FR 13741, Mar. 17, 2006; 79
FR 74571, Dec. 15, 2014; 80 FR 41995, July 16, 2015]
Sec.718.103 Prevented planted and failed acreage.
(a) Prevented planting is the inability to plant an eligible crop
with proper equipment during the planting period as a result of an
eligible cause of loss, as determined by CCC. The eligible cause of loss
that prevented the planting must have:
(1) Occurred after a previous planting period for the crop;
(2) Occurred before the final planting date for the crop in the
applicable crop year or, in the case of multiple plantings, the harvest
date of the first planting in the applicable planting period, and
(3) Similarly affected other producers in the area, as determined by
CCC.
(b) FSA may approve acreage as ``prevented planted acreage'' if all
other conditions for such approval are met and provided the conditions
in paragraphs (b)(1) through (6) of this section are met.
(1) Except as specified in paragraph (b)(2) of this section,
producers must report the acreage, on forms specified by FSA, within 15
calendar days after the final planting date determined for the crop by
FSA.
(2) If the acreage is reported after the period identified in
paragraph (b)(1) of this section, the application must be filed in time
to permit:
(i) The county committee or its authorized representative to make a
farm visit to verify eligible disaster conditions that prevented the
specified acreage or crop from being planted; or
(ii) The county committee or its authorized representative the
opportunity to determine, based on visual inspection, that the acreage
or crop in question was affected by eligible disaster conditions such as
damaging weather or other adverse natural occurrences that prevented the
acreage or crop from being planted.
(3) A farm visit to inspect the acreage or crop is required for all
late-filed acreage reports where prevented planting credit is sought.
Under no circumstance may acreage reported after the 15-day period
referenced in paragraph (b)(1) of this section be deemed acceptable
unless the criteria in paragraph (b)(2) of this section are met. State
and county committees do not have the authority to waive the field
inspection and verification provisions for late-filed reports.
(4) All determinations made during field inspections must be
documented on each late-filed acreage report, with
[[Page 39]]
results also recorded in county committee minutes to support the
documentation.
(5) The acreage must have been prevented from being planted as the
result of a natural disaster and not a management decision.
(6) The prevented planted acreage report was approved by the county
committee. The county committee may disapprove prevented planted acreage
credit if it is not satisfied with the documentation provided.
(c) To receive prevented planted credit for acreage, the producer
must show to the satisfaction of FSA that the producer intended to plant
the acreage. Documentation supporting such intent includes documents
related to field preparation, seed purchase, and any other information
that shows the acreage could and would have been planted and harvested
absent the natural disaster or eligible cause of loss that prevented the
planting.
(d) Prevented planted acreage credit will not be given to crops
where the prevented-planted acreage was affected by drought, unless:
(1) On the final planting date for non-irrigated acreage, the area
that is prevented from being planted has insufficient soil moisture for
germination of seed and progress toward crop maturity because of a
prolonged period of dry weather, as determined by CCC; and
(2) Prolonged precipitation deficiencies exceeded the D2 level as
determined using the U.S. Drought Monitor; and
(3) Verifiable information is collected from sources whose business
or purpose it is to record weather conditions, as determined by CCC, and
including but not limited to the local weather reporting stations of the
U.S. National Weather Service.
(e) Prevented planted acreage credit under this part applies to
irrigated crops where the acreage was prevented from being planted due
to a lack of water resulting from drought conditions or contamination by
saltwater intrusion of an irrigation supply resulting from drought
conditions if there was not a reasonable probability of having adequate
water to carry out an irrigation practice.
(f) Acreage ineligible for prevented planting coverage includes, but
is not limited to, acreage:
(1) With respect to which the planting history or conservation plans
indicate it would remain fallow for crop rotation purposes;
(2) Used for conservation purposes or intended to be or considered
to have been left unplanted under any program administered by USDA,
including the Conservation Reserve and Wetland Reserve Programs;
(3) Not planted because of a management decision;
(4) Affected by the containment or release of water by any
governmental, public, or private dam or reservoir project, if an
easement exists on the acreage affected for the containment or release
of water;
(5) Where any other person receives a prevented planted payment for
any crop for the same crop year, unless the acreage meets all the
requirements for double cropping under this part;
(6) Where pasture or other forage crop is in place on the acreage
during the time that planting of the crop generally occurs in the area;
(7) Where another crop is planted (previous or subsequent) that does
not meet the double cropping definition;
(8) Where any volunteer or cover crop is hayed, grazed, or otherwise
harvested on the acreage for the same crop year;
(9) Where there is an inadequate supply of irrigation water
beginning on the Federal crop insurance sale closing date for the
previous crop year or the Noninsured Crop Disaster Assistance Program
(NAP) application closing date for the crop as specified in part 1437 of
this title through the final planting date of the current year;
(10) On which a failure or breakdown of irrigation equipment or
facilities, unless the failure or breakdown is due to a natural
disaster;
(11) That is under quarantine imposed by a county, State, or Federal
government agency;
(12) That is affected by chemical or herbicide residue, unless the
residue is due to a natural disaster;
(13) That is affected by drifting herbicide;
[[Page 40]]
(14) On which a crop was produced, but the producer was unable to
obtain a market for the crop;
(15) Involving a planned planting of a ``value loss crop'' as that
term is defined for NAP as specified in part 1437 of this title,
including, but not limited to, Christmas trees, aquaculture, or
ornamental nursery, for which NAP assistance is provided under value
loss procedure;
(16) For which the claim for prevented planted credit relates to
trees or other perennials unless the producer can prove resources were
available to plant, grow, and harvest the crop, as applicable;
(17) That is affected by wildlife damage;
(18) Upon which, the reduction in the water supply for irrigation is
due to participation in an electricity buy-back program, or the sale of
water under a water buy-back or legislative changes regarding water
usage, or any other cause which is not a natural disaster; or
(19) That is devoted to non-cropland.
(g) CCC may allow exceptions to acreage ineligible for prevented
planting coverage when surface water or ground water is reduced because
of a natural disaster (as determined by CCC).
(h) Failed acreage is acreage that was planted with the proper
equipment during the planting period but failed as a result of an
eligible cause of loss, as determined by CCC.
(i) To be approved by CCC as failed acreage the acreage must have
been reported as failed acreage before disposition of the crop, and the
acreage must have been planted under normal conditions but failed as the
result of a natural disaster and not a management decision. Producers
who file a failed acreage report must have the request acted on by the
county committee. The county committee will deny the acreage report if
it is not satisfied with the documentation provided.
(j) To receive failed acreage credit the producer must show all of
the following:
(1) That the acreage was planted under normal conditions using the
proper equipment with the intent to harvest the acreage.
(2) Provide documentation that the crop was planted using farming
practices consistent for the crop and area, but could not be brought to
harvest because of disaster-related conditions.
(k) The eligible cause for failed acreage must have:
(1) Occurred after the crop was planted, and
(2) Before the normal harvest date for the crop in the applicable
crop year or in the case of multiple plantings, the harvest date of the
first planting in the applicable planting period, and
(3) Other producers in the area were similarly affected as
determined by CCC.
(l) Eligible failed acreage will be determined on the basis of the
producer planting the crop under normal conditions with the expectation
to take the crop to harvest.
(m) Acreage ineligible for failed acreage credit includes, but is
not limited to acreage:
(1) Which was planted using methods that could not be considered
normal for the area and without the expectation of harvest;
(2) Used for conservation purposes or intended to be or considered
to have been un-harvested under any program administered by USDA,
including the Conservation Reserve and Wetland Reserve Programs; or
(3) That failed because of a management decision.
[71 FR 13741, Mar. 17, 2006, as amended at 80 FR 41995, July 16, 2015;
84 FR 45887, Sept. 3, 2019]
Sec.718.104 Late-filed and revised acreage reports.
(a) Late-filed acreage reports may be accepted after the final
reporting date through the crop's immediately subsequent crop year's
final reporting date and processed by FSA if both of the following
apply:
(1) The crop or identifiable crop residue remains in the field,
permitting FSA to verify and determine the acreage and
(2) The crop acreage and common land unit for which the reported
crop acreage report is being filed has not already been determined by
FSA.
(b) Acreage reports submitted later than the date specified in
paragraph (a)
[[Page 41]]
of this section will not be processed by FSA and will not be used for
program purposes.
(c) The person or legal entity filing a report late must pay the
cost of a farm inspection and measurement unless FSA determines that
failure to report in a timely manner was beyond the producer's control.
The cost of the inspection and measurement is equal to the amount FSA
would charge for measurement service; however, FSA's determination of
acreage as a result of the inspection and measurement is not considered
a paid for measurement service under Sec.718.101. The acreage measured
will be entered as determined acres.
(d) When an acceptable late-filed acreage report is filed in
accordance with this section, the reported crop acreage will be entered
for the amount that was actually reported to FSA before FSA determined
acres, and the determined crop acreage will be entered as it was
determined and established by FSA.
(e) Revised acreage reports may be filed to change the acreage
reported if:
(1) The acreage has not already been determined by FSA; and
(2) Actual crop or residue is present in the field.
(f) Revised reports will be filed and accepted:
(1) At any time for all crops if the crop or residue still exists in
the field for inspection to verify the existence and use made of the
crop, the lack of the crop, or a disaster condition affecting the crop;
and
(2) If the producer was in compliance with all other program
requirements at the reporting date.
[71 FR 13742, Mar. 17, 2006, as amended as 80 FR 41996, July 16, 2015;
84 FR 45887, Sept. 3, 2019]
Sec.718.105 Tolerances and adjustments.
(a) Tolerance is the amount by which the determined acreage for a
crop may differ from the reported acreage or allotment for the crop and
still be considered in compliance with program requirements under
Sec. Sec.718.102(b)(1), (b)(3) and (b)(5).
(b) Tolerance rules apply to those fields for which a staking and
referencing was performed but such acreage was not planted according to
those measurements or when a measurement service is not requested for
acreage destroyed to meet program requirements.
(c) Tolerance rules do not apply to:
(1) Program requirements of Sec. Sec.718.102(b)(2), (b)(4) and
(b)(6);
(2) Official fields upon which the entire field is devoted to one
crop;
(3) Those fields for which staking and referencing was performed and
such acreage was planted according to those measurements; or
(4) The adjusted acreage for farms using measurement after planting
which have a determined acreage greater than the marketing quota crop
allotment.
(d) If the acreage report for a crop is outside the tolerance for
that crop:
(1) FSA may consider the requirements of Sec. Sec.718.102 (b)(1),
(b)(3) and (b)(5) not to have been met;
(2) Participants may be ineligible for all or a portion of payments
or benefits subject to the requirements of Sec. Sec.718.102 (b)(1),
(b)(3) and (b)(5); and
(3) Participants may be ineligible for all or a portion of payments
or benefits under a program that requires accurate crop acreage reports
under rules governing the program.
[68 FR 16176, Apr. 3, 2003, as amended at 80 FR 41996, July 16, 2015; 84
FR 45887, Sept. 3, 2019]
Sec.718.106 Non-compliance and false acreage reports.
(a) Participants who provide false or inaccurate acreage reports may
be ineligible for some or all payments or benefits, subject to the
requirements of Sec.718.102(b)(1) and (3).
(b) [Reserved]
[80 FR 41996, July 16, 2015]
Sec.718.107 Acreages.
(a) If an acreage has been established by FSA for an area delineated
on an aerial photograph or within a GIS, such acreage will be recognized
by the county committee as the acreage for the area until such time as
the boundaries of such area are changed. When boundaries not visible on
the aerial photograph are established from data furnished by the
producer, such acreage shall not be recognized as official
[[Page 42]]
acreage until an authorized representative of FSA verifies the
boundaries.
(b) Measurements of any row crop shall extend beyond the planted
area by the larger of 15 inches or one-half the distance between the
rows.
(c) The entire acreage of a field or subdivision of a field devoted
to a crop shall be considered as devoted to the crop subject to a
deduction or adjustment except as otherwise provided in this part.
Sec.718.108 Measuring acreage including skip row acreage.
(a) When one crop is alternating with another crop, whether or not
both crops have the same growing season, only the acreage that is
actually planted to the crop being measured will be considered to be
acreage devoted to the measured crop.
(b) Subject to the provisions of this paragraph and section, whether
planted in a skip row pattern or without a pattern of skipped rows, the
entire acreage of the field or subdivision may be considered as devoted
to the crop only where the distance between the rows, for all rows, is
40 inches or less. If there is a skip that creates idle land wider than
40 inches, or if the distance between any rows is more than 40 inches,
then the area planted to the crop shall be considered to be that area
which would represent the smaller of; a 40 inch width between rows, or
the normal row spacing in the field for all other rows in the field--
those that are not more than 40 inches apart. The allowance for
individual rows would be made based on the smaller of actual spacing
between those rows or the normal spacing in the field. For example, if
the crop is planted in single, wide rows that are 48 inches apart, only
20 inches to either side of each row (for a total of 40 inches between
the two rows) could, at a maximum, be considered as devoted as the crop
and normal spacing in the field would control. Half the normal distance
between rows will also be allowed beyond the outside planted rows not to
exceed 20 inches and will reflect normal spacing in the field.
(c) In making calculations under this section, further reductions
may be made in the acreage considered planted if it is determined that
the acreage is more sparsely planted than normal using reasonable and
customary full production planting techniques.
(d) The Deputy Administrator has the discretionary authority to
allow row allowances other than those specified in this section in those
instances in which crops are normally planted with spacings greater or
less than 40 inches, such as in case of tobacco, or where other
circumstances are present which the Deputy Administrator finds justifies
that allowance.
(e) Paragraphs (a) through (d) of this section shall apply with
respect to the 2003 and subsequent crops. For preceding crops, the rules
in effect on January 1, 2002, shall apply.
Sec.718.109 Deductions.
(a) Any contiguous area which is not devoted to the crop being
measured and which is not part of a skip-row pattern under Sec.718.108
shall be deducted from the acreage of the crop if such area meets the
following minimum national standards or requirements:
(1) A minimum width of 30 inches;
(2) For tobacco--three-hundredths (.03) acre. Turn areas, terraces,
permanent irrigation and drainage ditches, sod waterways, non-cropland,
and subdivision boundaries each of which is at least 30 inches in width
may be combined to meet the 0.03-acre minimum requirement; or
(3) For all other crops and land uses--one-tenth (.10) acre. Turn
areas, terraces, permanent irrigation and drainage ditches, sod
waterways, non-cropland, and subdivision boundaries each of which is at
least 30 inches in width and each of which contain 0.1 acre or more may
be combined to meet any larger minimum prescribed for a State in
accordance with this subpart.
(b) If the area not devoted to the crop is located within the
planted area, the part of any perimeter area that is more than 217.8
feet (33 links) in width will be considered to be an internal deduction
if the standard deduction is used.
(c) A standard deduction of 3 percent of the area devoted to a row
crop and zero percent of the area devoted to a close-sown crop may be
used in lieu of measuring the acreage of turn areas.
[[Page 43]]
Sec.718.110 Adjustments.
(a) The farm operator or other interested producer having excess
tobacco acreage (other than flue-cured or burley) may adjust an acreage
of the crop in order to avoid a marketing quota penalty if such person:
(1) Notifies the county committee of such election within 15
calendar days after the date of mailing of notice of excess acreage by
the county committee; and
(2) Pays the cost of a farm inspection to determine the adjusted
acreage prior to the date the farm visit is made.
(b) The farm operator may adjust an acreage of tobacco (except flue-
cured and burley) by disposing of such excess tobacco prior to the
marketing of any of the same kind of tobacco from the farm. The
disposition shall be witnessed by a representative of FSA and may take
place before, during, or after the harvesting of the same kind of
tobacco grown on the farm. However, no credit will be allowed toward the
disposition of excess acreage after the tobacco is harvested but prior
to marketing, unless the county committee determines that such tobacco
is representative of the entire crop from the farm of the kind of
tobacco involved.
Sec.718.111 Notice of measured acreage.
(a) FSA will provide notice of measured acreage and mail it to the
farm operator. This notice constitutes notice to all parties who have
ownership, leasehold interest, or other interest in such farm.
(b) [Reserved]
[80 FR 41996, July 16, 2015]
Sec.718.112 Redetermination.
(a) A redetermination of crop acreage, appraised yield, or farm-
stored production for a farm may be initiated by the county committee,
State committee, or Deputy Administrator at any time. Redetermination
may be requested by a producer with an interest in the farm if the
producer pays the cost of the redetermination. The request must be
submitted to FSA within 5 calendar days after the initial appraisal of
the yield of a crop, or before the farm-stored production is removed
from storage. A redeter mina tion will be undertaken in the manner
prescribed by the Deputy Administrator. A redetermination will be used
in lieu of any prior determination unless it is determined by the
representative of the Deputy Administrator that there is good cause not
to do so.
(b) FSA will refund the payment of the cost for a redetermination
when, because of an error in the initial determination:
(1) The appraised yield is changed by at least the larger of:
(i) Five percent or 5 pounds for cotton;
(ii) Five percent or 1 bushel for wheat, barley, oats, and rye; or
(iii) Five percent or 2 bushels for corn and grain sorghum; or
(2) The farm stored production is changed by at least the smaller of
3 percent or 600 bushels; or
(3) The acreage of the crop is:
(i) Changed by at least the larger of 3 percent or 0.5 acre; or
(ii) Considered to be within program requirements.
[68 FR 16176, Apr. 3, 2003, as amended at 80 FR 41996, July 16, 2015]
Subpart C_Reconstitution of Farms, Allotments, Quotas, and Base Acres
Source: 68 FR 16178, Apr. 3, 2003, unless otherwise noted.
Sec.718.201 Farm constitution.
(a) In order to implement FSA programs and monitor compliance with
regulations, FSA must have records on what land is being farmed by a
particular producer. This is accomplished by a determination of what
land or group of lands ``constitute'' an individual unit or farm. Land
that was properly constituted under prior regulations will remain so
constituted until a reconstitution is required by paragraph (c) of this
section. The constitution and identification of land as a ``farm'' for
the first time and the subsequent reconstitution of a farm made
thereafter will include all land operated by an individual entity or
joint operation as a single farming unit except that it may not include:
[[Page 44]]
(1) Land under separate ownership unless the owners agree in writing
or have previously agreed in writing and the labor, equipment,
accounting system, and management are operated in common by the
operator, but separate from other tracts;
(2) Land under a lease agreement of less than 1 year duration;
(3) Federally owned land unless it is rangeland on which no crops
are planted and on which there are no crop base acres established;
(4) State-owned wildlife lands unless the former owner has
possession of the land under a leasing agreement;
(5) Land constituting a farm that is declared ineligible to be
enrolled in a program under the regulations governing the program;
(6) For base acre crops, land located in counties that are not
contiguous except where:
(i) Counties are divided by a river;
(ii) Counties do not share a common border because of a correction
line adjustment; or
(iii) The land is within 20 miles, by road, of other land that will
be a part of the farming unit;
(7) Land subject to either a default election or a valid election
made under part 1412 of this title for each and all covered commodities
constituted with land that has a different default election or valid
election for each and all covered commodities, irrespective of whether
or not any of the land has base acres; or
(8) Land subject to an election of individual coverage under the
Agriculture Risk Coverage Program (ARC-IC) in any State constituted with
any land in another State.
(b)(1) If all land on the farm is physically located in one county,
the farm shall be administratively located in such county. If there is
no FSA office in the county or the county offices have been
consolidated, the farm shall be administratively located in the
contiguous county most convenient for the farm operator.
(2) If the land on the farm is located in more than one county, the
farm shall be administratively located in either of such counties as the
county committees and the farm operator agree. If no agreement can be
reached, the farm shall be administratively located in the county where
the principal dwelling is situated, or where the major portion of the
farm is located if there is no dwelling.
(c) A reconstitution of a farm either by division or by combination
is required whenever:
(1) A change has occurred in the operation of the land since the
last constitution or reconstitution and as a result of such change the
farm does not meet the conditions for constitution of a farm as
specified in paragraph (a) of this section, except that no
reconstitution will be made if the county committee determines that the
primary purpose of the change in operation is to establish eligibility
to transfer allotments subject to sale or lease, or increase the amount
of program benefits received;
(2) The farm was not properly constituted the previous time;
(3) An owner requests in writing that the land no longer be included
in a farm composed of tracts under separate ownership;
(4) The county committee determines that the farm was reconstituted
on the basis of false information;
(5) The county committee determines that tracts included in a farm
are not being operated as a single farming unit.
(d) An owner can file a written request to have FSA reconstitute
from original tracts areas that are less than 10 DCP cropland acres and
less than 5 percent of the original tract, if such request is
accompanied by sufficient data from which FSA can determine the
political county and State of land in both the original tract and the
proposed tract. Any owner-initiated requests for tract divisions for
physical location will be performed and effective prospectively from
date of request and approval by FSA.
(e) Reconstitution shall not be approved if the county committee
determines that the primary purpose of the reconstitution is to:
(1) Circumvent the provisions of part 12 of this title; or
[[Page 45]]
(2) Circumvent any other chapter of this title.
[68 FR 16178, Apr. 3, 2003, as amended at 80 FR 41996, July 16, 2015; 84
FR 45887, Sept. 3, 2019]
Sec.718.202 Determining the land constituting a farm.
(a) In determining the constitution of a farm, consideration shall
be given to provisions such as ownership and operation. For purposes of
this part, the following rules shall be applicable to determining what
land is to be included in a farm.
(b) A minor shall be considered to be the same owner or operator as
the parent, court-appointed guardian, or other person responsible for
the minor child, unless the parent or guardian has no interest in the
minor's farm or production from the farm, and the minor:
(1) Is a producer on a farm;
(2) Maintains a separate household from the parent or guardian;
(3) Personally carries out the farming activities; and
(4) Maintains a separate accounting for the farming operation.
(c) A minor shall not be considered to be the same owner or operator
as the parent or court-appointed guardian if the minor's interest in the
farming operation results from being the beneficiary of an irrevocable
trust and ownership of the property is vested in the trust or the minor.
(d) A life estate tenant shall be considered to be the owner of the
property for their life.
(e) A trust shall be considered to be an owner with the beneficiary
of the trust; except a trust can be considered a separate owner or
operator from the beneficiary, if the trust:
(1) Has a separate and distinct interest in the land or crop
involved;
(2) Exercises separate responsibility for the separate and distinct
interest; and
(3) Maintains funds and accounts separate from that of any other
individual or entity for the interest.
(f) The county committee shall require specific proof of ownership.
(g) Land owned by different persons of an immediate family living in
the same household and operated as a single farming unit shall be
considered as being under the same ownership in determining a farm.
(h) All land operated as a single unit and owned and operated by a
parent corporation and subsidiary corporations of which the parent
corporation owns more than 50 percent of the value of the outstanding
stock, or where the parent is owned and operated by subsidiary
corporations, shall be constituted as one farm.
Sec.718.203 County committee action to reconstitute a farm.
Action to reconstitute a farm may be initiated by the county
committee, the farm owner, or the operator with the concurrence of the
owner of the farm. Any request for a farm reconstitution shall be filed
with the county committee.
Sec.718.204 Reconstitution of base acres.
(a) Farms will be reconstituted in accordance with this subpart when
it is determined that the land areas are not properly constituted and,
to the extent practicable as determined by county committee, the
reconstitution will be based on the facts and conditions existing at the
time the change requiring the reconstitution occurred.
(b) Reconstitutions will be effective for the calendar year if
initiated by August 1 of that year. Any reconstitution initiated after
August 1 will not be effective for that year; it will be effective for
the subsequent year.
(c) The Deputy Administrator may approve an exception to permit a
reconstitution initiated after August 1 to be effective for the same
year, if FSA determines that the failure is due to administrative
problems as determined by FSA at the local or national level. Producers
have no right to seek an exception under this paragraph. When such
situations exist, FSA will establish procedures under which
reconstitutions will be accepted and when those reconstitutions will
become effective.
[79 FR 57714, Sept. 26, 2014, as amended at 84 FR 45887, Sept. 3, 2019]
Sec.718.205 Substantive change in farming operation, and changes
in related legal entities.
(a) Land that is properly constituted as a farm shall not be
reconstituted if:
[[Page 46]]
(1) The reconstitution request is based upon the formation of a
newly established legal entity which owns or operates the farm or any
part of the farm and the county committee determines there is not a
substantive change in the farming operation;
(2) The county committee determines that the primary purpose of the
request for reconstitution is to:
(i) Obtain additional benefits under one or more commodity programs;
(ii) Avoid damages or penalties under a contract or statute;
(iii) Correct an erroneous acreage report; or
(iv) Circumvent any other program provisions. In addition, no farm
shall remain as constituted when the county committee determines that a
substantive change in the farming operation has occurred which would
require a reconstitution, except as otherwise approved by the State
committee with the concurrence of the Deputy Administrator.
(b) In determining whether a substantive change has occurred with
respect to a farming operation, the county committee shall consider
factors such as the composition of the legal entities having an interest
in the farming operation with respect to management, financing, and
accounting. The county committee shall also consider the use of land,
labor, and equipment available to the farming operations and any other
relevant factors that bear on the determination.
(c) Unless otherwise approved by the State committee with the
concurrence of the Deputy Administrator, when the county committee
determines that a corporation, trust, or other legal entity is formed
primarily for the purpose of obtaining additional benefits under the
commodity programs of this title, the farm shall remain as constituted,
or shall be reconstituted, as applicable, when the farm is owned or
operated by:
(1) A corporation having more than 50 percent of the stock owned by
members of the same family living in the same household;
(2) Corporations having more than 50 percent of the stock owned by
stockholders common to more than one corporation; or
(3) Trusts in which the beneficiaries and trustees are family
members living in the same household.
(d) Application of the provisions of paragraph (c) of this section
shall not limit or affect the application of paragraphs (a) and (b) of
this section.
Sec.718.206 Determining farms, tracts, and base acres when
reconstitution is made by division.
(a) The methods for dividing farms, tracts, and base acres are, in
order of precedence: Estate, designation by landowner, cropland, and
default. The proper method will be determined on a crop-by-crop basis.
(b) The estate method for reconstitution is the pro-rata
distribution of base acres for a parent farm among the heirs in settling
an estate. If the estate sells a tract of land before the farm is
divided among the heirs, the base acres for that tract will be
determined according to paragraphs (c) through (e) of this section.
(1) Base acres must be divided in accordance with a will, but only
if the county committee determines that the terms of the will are such
that a division can reasonably be made by the estate method.
(2) If there is no will or the county committee determines that the
terms of a will are not clear as to the division of base acres, the base
acres will be apportioned in the manner agreed to in writing by all
interested heirs or devisees who acquire an interest in the property for
which base acres have been established. An agreement by the
administrator or executor will not be accepted in lieu of an agreement
by the heirs or devisees.
(3) If base acres are not apportioned as specified in paragraph
(b)(1) or (2) of this section, the base acres must be divided as
specified in paragraph (d) or (e) of this section, as applicable.
(c) If the ownership of a tract of land is transferred from a parent
farm, the transferring owner may request that the county committee
divide the base acres, including historical acreage that has been double
cropped, between the parent farm and the transferred tract, or between
the various tracts if the entire farm is sold to two or more purchasers.
[[Page 47]]
(1) If the county committee determines that base acres cannot be
divided in the manner designated by the owner because the owner's
designation does not meet the requirements of paragraph (c)(2) of this
section, FSA will notify the owner and permit the owner to revise the
designation to meet the requirements. If the owner does not furnish a
revised designation of base acres within a reasonable time after such
notification, or if the revised designation does not meet the
requirements, the county committee will divide the base acres in a pro-
rata manner in accordance with paragraph (d) or (e) of this section.
(2) The landowner may designate a manner in which base acres are
divided by filing a signed written memorandum of understanding of the
designation of base acres with the county committee before the transfer
of ownership of the land. Both the transferring owner and transferee
must sign the written designation of base acres.
(i) Within 30 days after a prescribed form, letter, or notice of
base acres is issued by FSA following the reconstitution of a farm but
before any subsequent transfer of ownership of the land, all owners in
existence at time of the reconstitution request may seek a different
manner of base acre designation by agreeing in writing by executing a
form CCC-517 or other designated form.
(ii) The landowner must designate the base acres that will be
permanently reduced when the sum of the base acres exceeds the effective
cropland plus double-cropped acres for the farm.
(iii) When the part of the farm from which the ownership is being
transferred was owned for less than 3 years, the designation by
landowner method of designating base acres cannot be used unless the
county committee determines that the primary purpose of the ownership
transfer was other than to retain or to sell base acres. In the absence
of such a determination, and if the farm contains land that has been
owned for less than 3 years, the part of the farm that has been owned
for less than 3 years will be considered as a separate farm and the base
acres must be assigned to that farm in accordance with paragraph (d) or
(e) of this section. Such apportionment will be made prior to any
designation of base acres with respect to the part that has been owned
for 3 years or more.
(3) The designation by landowner method may be applied, at the
owner's request, to land owned by an Indian Tribal Council that is
leased to two or more producers for the production of any crop of a
commodity for which base acres have been established. If the land is
leased to two or more producers, an Indian Tribal Council may request
that the county committee divide the base acres between the applicable
tracts in the manner designated by the Council. The use of this method
is not subject to the requirements specified in paragraph (c)(2) of this
section.
(d) The cropland method for reconstitution is the pro-rata
distribution of base acres to the resulting tracts in the same
proportion that each resulting tract bears to the cropland for the
parent tract. This method of division will be used if paragraphs (b) and
(c) of this section do not apply.
(e) The default method for reconstitution is the separation of
tracts from a farm with each tract maintaining the base acres attributed
to the tract when the reconstitution is initiated.
(f) Farm program payment yields calculated for the resulting farms
of a division may be increased or decreased if the county committee
determines the method used did not provide an equitable distribution
considering available land, cultural operations, and changes in the type
of farming conducted on the farm. Any increase in the farm program
payment yield on a resulting farm will be offset by a corresponding
decrease on another resulting farm of the division.
[80 FR 41997, July 16, 2015]
Sec.718.207 Determining base acres when reconstitution is made
by combination.
(a) When two or more farms or tracts are combined for a year, that
year's base acres, with respect to the combined farm or tract, as
required by applicable program regulations, will not be greater than the
sum of the base acres for each of the farms or tracts
[[Page 48]]
comprising the combination, subject to the provisions of Sec.718.204.
(b) [Reserved]
[80 FR 41998, July 16, 2015]
Subpart D_Equitable Relief From Ineligibility
Source: 67 FR 66307, Oct. 31, 2002, unless otherwise noted.
Sec.718.301 Applicability.
(a) This subpart is applicable to programs administered by the Farm
Service Agency under chapters VII and XIV of this title, except for an
agricultural credit program carried out under the Consolidated Farm and
Rural Development Act (7 U.S.C. 1921 et seq.), as amended.
Administration of this subpart shall be under the supervision of the
Deputy Administrator, except that such authority shall not limit the
exercise of authority allowed State Executive Directors of the Farm
Service agency as provided for in Sec.718.307.
(b) Section 718.306 does not apply to a function performed under
either section 376 of the Consolidated Farm and Rural Development Act (7
U.S.C. 1921 et seq.), or a conservation program administered by the
Natural Resources Conservation Service of the United States Department
of Agriculture.
(c) The relief provisions of this part cannot be used to extend a
benefit or assistance not otherwise available under law or not otherwise
available to others who have satisfied or complied with every
eligibility or compliance requirement of the provisions of law or
regulations governing the program benefit or assistance.
[67 FR 66307, Oct. 31, 2002, as amended at 80 FR 41998, July 16, 2015]
Sec.718.302 Definitions and abbreviations.
In addition to the definitions provided in Sec.718.2 of this part,
the following terms apply to this subpart:
Covered program means a program specified in Sec.718.301 of this
subpart.
FSA means the Farm Service Agency of the United States Department of
Agriculture.
OGC means the Office of the General Counsel of the United States
Department of Agriculture.
SED means, for activities within a particular state, the State
Executive Director of the United States Department of Agriculture, FSA,
for that state.
[67 FR 66307, Oct. 31, 2002, as amended at 80 FR 41998, July 16, 2015]
Sec.718.303 Reliance on incorrect actions or information.
(a) Notwithstanding any other law, if an action or inaction by a
participant is based upon good faith reliance on the action or advice of
an authorized representative of an FSA county or State committee, and
that action or inaction results in the participant's noncompliance with
the requirements of a covered program that is to the detriment of the
participant, then that action or inaction still may be approved by the
Deputy Administrator as meeting the requirements of the covered program,
and benefits may be extended or payments made in as specified in Sec.
718.305.
(b) This section applies only to a participant who:
(1) Relied in good faith upon the action of, or information provided
by, an FSA county or State committee or an authorized representative of
such committee regarding a covered program;
(2) Acted, or failed to act, as a result of the FSA action or
information; and
(3) Was determined to be not in compliance with the requirements of
that covered program.
(c) This section 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.
[80 FR 41998, July 16, 2015]
Sec.718.304 Failure to fully comply.
(a) When the failure of a participant to fully comply with the terms
and conditions of a covered program precludes the providing of payments
or benefits, relief may be authorized as specified in Sec.718.305 if
the participant
[[Page 49]]
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
FSA to have made a good faith effort to comply fully with the terms and
conditions of the covered program and have performed substantial actions
required for program eligibility.
[80 FR 41998, July 16, 2015]
Sec.718.305 Forms of relief.
(a) The Administrator of FSA, Executive Vice President of CCC, or
their 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 subpart, the
participant may be required to remedy their failure to meet the program
requirement, or mitigate its affects.
Sec.718.306 Finality.
(a) A determination by an FSA State or county committee (or employee
of such committee) becomes final on an application for benefits and
binding 90 days from the date the application for benefits has been
filed, and supporting documentation required to be supplied by the
producer as a condition for eligibility for the particular program has
been filed, unless any of the following exceptions exist:
(1) The participant has requested an administrative review of the
determination in accordance with part 780 of this chapter;
(2) The determination was in any way based on erroneous, innocent,
or purposeful misrepresentation; false statement; fraud; or willful
misconduct by or on behalf of the participant;
(3) The determination was modified by the Administrator, FSA, or in
the case of CCC programs conducted under Chapter XIV of this title, the
Executive Vice President, CCC; or
(4) The participant knew or had reason to know that the
determination was erroneous.
(b) Should an erroneous determination become final under the
provisions of this section, the erroneous decision will be corrected
according to paragraph (c) of this section.
(1) If, as a result of the erroneous decision, payment was issued,
no action will be taken by FSA, CCC, or a State or county committee to
recover unearned payment amounts unless one or more of the exceptions in
paragraph (a) of this section applies;
(2) If payment was not issued before the error was discovered, the
payment will not be issued. FSA and CCC are under no obligation to issue
payments or render decisions that are contrary to law or regulation.
(c) FSA and CCC will modify and correct determinations when errors
are discovered. As specified in paragraph (b) of this section, FSA or
CCC may be precluded from recovering unearned payments that issued as a
result of the erroneous decision. FSA or CCC's inability to recover or
demand refunds of unearned amounts as specified in paragraph (b) will
only be effective through the year in which the error was found and
communicated to the participant.
[67 FR 66307, Oct. 31, 2002, as amended at 80 FR 41998, July 16, 2015]
Sec.718.307 Special relief approval authority for State Executive
Directors.
(a) General nature of the special authority. Notwithstanding
provisions in this subpart providing supervision and relief authority to
other officials, an SED, after consultation with and approval from OGC
but without further review by other officials (other than the Secretary)
may grant relief to a participant under the provisions of Sec. Sec.
718.303 through 718.305 as if the SED were the final arbiter within the
agency of such matters so long as:
(1) The program matter with respect to which the relief is sought is
a program matter in a covered program
[[Page 50]]
which is operated within the State under the control of the SED;
(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) by that SED under this special authority for errors during that
year is less than $20,000 (including in that calculation, any loan
amount or other benefit of any kind payable for that year and any other
year);
(3) The total amount of such relief which has been previously
provided to the participant using this special authority for errors, as
calculated above, 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 an
SED for errors for any year under the authority provided in this
section, as calculated above, is not more than $1,000,000.
(b) Report of the exercise of the power. A grant of relief shall be
considered to be under this section and subject to the special finality
provided in this section only if the SED grants the relief in writing
when granting the relief to the party who will receive the benefit of
such relief and only if, in that document, the SED declares that they
are exercising that power. The SED must report the exercise of that
power to the Deputy Administrator so that a full accounting may be made
in keeping with the limitations of this section. Absent such a report,
relief will not be considered to have been made under this section.
(c) Additional limits on the authority. The authority provided under
this section does not extend to:
(1) The administration of payment limitations under part 1400 of
this chapter (Sec. Sec.1001 to 1001F of 7 U.S.C. 1308 et seq.);
(2) The administration of payment limitations under a conservation
program administered by the Secretary; or
(3) 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.) as administered under 7 CFR part 12.
(d) Relief may not be provided by the SED under this section until a
written opinion or written acknowledgment is obtained from OGC that
grounds exist for determination that requirements for granting relief
under Sec.718.303 or Sec.718.304 have been met, that the form of
relief is authorized under Sec.718.305, and that the granting of the
relief is within the lawful authority of the SED.
(e) Relation to other authorities. The authority provided under this
section is in addition to any other applicable authority that may allow
relief.
[67 FR 66307, Oct. 31, 2002, as amended at 80 FR 41998, July 16, 2015]
SUBCHAPTER C [RESERVED]
[[Page 51]]
SUBCHAPTER D_SPECIAL PROGRAMS
PART 750_SOIL BANK--Table of Contents
Editorial Note: Part 750 (formerly part 485 of title 6), published
at 21 FR 6289, Aug. 22, 1956, and redesignated at 26 FR 5788, June 29,
1961, is no longer carried in the Code of Federal Regulations. This
deletion does not relieve any person of any obligation or liability
incurred under these regulations, nor deprive any person of any rights
received or accrued under the provisions of this part. For Federal
Register citations affecting this part, see the ``List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985,'' published in seven
separate volumes.
PART 755_REIMBURSEMENT TRANSPORTATION COST PAYMENT PROGRAM FOR
GEOGRAPHICALLY DISADVANTAGED FARMERS AND RANCHERS--Table of Contents
Sec.
755.1 Administration.
755.2 Definitions.
755.3 Time and method of application.
755.4 Eligibility.
755.5 Proof of eligible reimbursement costs incurred.
755.6 Availability of funds.
755.7 Transportation rates.
755.8 Calculation of individual payments.
755.9 Misrepresentation and scheme or device.
755.10 Death, incompetence, or disappearance.
755.11 Maintaining records.
755.12 Refunds; joint and several liability.
755.13 Miscellaneous provisions and appeals.
Authority: 7 U.S.C. 8792.
Source: 75 FR 34340, June 17, 2010, unless otherwise noted.
Sec.755.1 Administration.
(a) This part establishes the terms and conditions under which the
Reimbursement Transportation Cost Payment (RTCP) Program for
geographically disadvantaged farmers and ranchers will be administered.
(b) The RTCP Program will be administered under the general
supervision of the FSA Administrator, or a designee, and will be carried
out in the field by FSA State and county committees and FSA employees.
(c) FSA State and county committees, and representatives and
employees thereof, do not have the authority to modify or waive any of
the provisions of the regulations of this part, except as provided in
paragraph (e) of this section.
(d) The FSA State committee will take any action required by the
provisions of this part that has not been taken by the FSA county
committee. The FSA State committee will also:
(1) Correct or require an FSA county committee to correct any action
taken by the county committee that is not in compliance with the
provisions of this part.
(2) Require an FSA county committee to not take an action or
implement a decision that is not in compliance with the provisions of
this part.
(e) No provision or delegation of this part to an FSA State
committee or a county committee will preclude the FSA Administrator, or
a designee, from determining any question arising under the program or
from reversing or modifying any determination made by a State committee
or a county committee.
(f) The Deputy Administrator for Farm Programs, FSA, may waive or
modify program requirements of this part in cases where failure to meet
requirements does not adversely affect the operation of the program and
where the requirement is not statutorily mandated.
Sec.755.2 Definitions.
The following definitions apply to this part. The definitions in
parts 718 and 1400 of this title also apply, except where they may
conflict with the definitions in this section.
Actual transportation rate means the transportation rate that
reflects the actual transportation costs incurred and can be determined
by supporting documentation.
Agricultural commodity means any agricultural commodity (including
horticulture, aquaculture, and floriculture), food, feed, fiber,
livestock (including elk, reindeer, bison, horses, or deer), or insects,
and any product thereof.
[[Page 52]]
Agricultural operation means a parcel or parcels of land; or body of
water applicable to aquaculture, whether contiguous or noncontiguous,
constituting a cohesive management unit for agricultural purposes. An
agricultural operation will be regarded as located in the county in
which the principal dwelling is situated, or if there is no dwelling
thereon, it will be regarded to be in the county in which the major
portion of the land or applicable body of water is located.
Application period means the period established by the Deputy
Administrator for geographically disadvantaged farmers and ranchers to
apply for program benefits.
County office or FSA county office means the FSA offices responsible
for administering FSA programs in a specific area, sometimes
encompassing more than one county, in a State.
Department or USDA means the U.S. Department of Agriculture.
Eligible reimbursement amount means the reported costs incurred to
transport an agricultural commodity or input used to produce an
agricultural commodity in an insular area, Alaska, or Hawaii, over a
distance of more than 30 miles. The amount is calculated by multiplying
the number of units of the reported transportation amount times the
applicable transportation fixed, set, or actual rate times the
applicable FY allowance (COLA).
Farm Service Agency or FSA means the Farm Service Agency of the
USDA.
Fiscal year or FY means the year beginning October 1 and ending the
following September 30. The fiscal year will be designated for this part
by year reference to the calendar year in which it ends. For example, FY
2010 is from October 1, 2009, through September 30, 2010 (inclusive).
Fixed transportation rate means the per unit transportation rate
determined by FSA to reflect the transportation cost applicable to an
agricultural commodity or input used to produce an agricultural
commodity in a particular region.
FY allowance (COLA) means the nonforeign area cost of living
allowance or post differential, as applicable, for that FY set by Office
of Personnel Management for Federal employees stationed in Alaska,
Hawaii, and other insular areas, as authorized by 5 U.S.C. 5941 and E.O.
10000 and specified in 5 CFR part 591, subpart B, appendices A and B.
Geographically disadvantaged farmer or rancher means a farmer or
rancher in an insular area, Alaska, or Hawaii.
Input transportation costs means those transportation costs of
inputs used to produce an agricultural commodity including, but not
limited to, air freight, ocean freight, and land freight of chemicals,
feed, fertilizer, fuel, seeds, plants, supplies, equipment parts, and
other inputs as determined by FSA.
Insular area means the Commonwealth of Puerto Rico; Guam; American
Samoa; the Commonwealth of the Northern Mariana Islands; the Federated
States of Micronesia; the Republic of the Marshall Islands; the Republic
of Palau; and the Virgin Islands of the United States.
Payment amount means the amount due a producer that is the sum of
all eligible reimbursement amounts, as calculated by FSA subject to the
availability of funds, and subject to an $8,000 cap per producer per FY.
Producer means any geographically disadvantaged farmer or rancher
who is an individual, group of individuals, partnership, corporation,
estate, trust, association, cooperative, or other business enterprise or
other legal entity, as defined in Sec.1400.3 of this title, who is, or
whose members are, a citizen of or legal resident alien in the United
States, and who, as determined by the Secretary, shares in the risk of
producing an agricultural commodity in substantial commercial
quantities, and who is entitled to a share of the agricultural commodity
from the agricultural operation.
Reported transportation amount means the reported number of units
(such as pounds, bushels, pieces, or parts) applicable to an
agricultural commodity or input used to produce an agricultural
commodity, which is used in calculating the eligible reimbursement
amount.
Set transportation rate means the transportation rate established by
FSA for a commodity or input for which there is not a fixed
transportation rate
[[Page 53]]
or supporting documentation of the actual transportation rate.
United States means the 50 States of the United States of America,
the District of Columbia, the Commonwealths of Puerto Rico and the
Northern Mariana Islands, and any other territory or possession of the
United States.
Verifiable records means evidence that is used to substantiate the
amount of eligible reimbursements by geographically disadvantaged
farmers and ranchers in an agricultural operation that can be verified
by FSA through an independent source.
Sec.755.3 Time and method of application.
(a) To be eligible for payment, producers must obtain and submit a
completed application for payment and meet other eligibility
requirements specified in this part. Producers may obtain an application
in person, by mail, or by facsimile from any county FSA office. In
addition, producers may download a copy of the application at http://
www.sc.egov.usda.gov.
(b) An application for payment must be submitted on a completed
application form. Applications and any other supporting documentation
must be submitted to the FSA county office serving the county where the
agricultural operation is located, but, in any case, must be received by
the FSA county office by the close of business on the last day of the
application period established by the Deputy Administrator.
(c) All producers who incurred transportation costs for eligible
reimbursements and who share in the risk of an agricultural operation
must certify to the information on the application before the
application will be considered complete. FSA may require the producer to
provide documentation to support all verifiable records.
(d) Each producer requesting payment under this part must certify to
the accuracy and truthfulness of the information provided in their
application and any supporting documentation. All information provided
is subject to verification by FSA. Refusal to allow FSA or any other
agency of the Department of Agriculture to verify any information
provided will result in a denial of eligibility. Furnishing the
information is voluntary; however, without it program benefits will not
be approved. Providing a false certification to the Federal Government
may be punishable by imprisonment, fines and other penalties or
sanctions.
(e) To ensure all producers are provided an opportunity to submit
actual costs for reimbursement at the actual cost rate, applicants will
have 30 days after the end of the FY to provide supporting documentation
of actual transportation costs to the FSA County Office. The actual
costs documented in supporting documentation will override previously
reported costs of eligible reimbursable costs at the fixed or set rate
made during the application period.
(f) If verifiable records are not provided to FSA, the producer will
be ineligible for payment.
(g) If supporting documentation is provided within 30 days after the
end of the FY, but an application was not submitted to the applicable
FSA County Office before the end of the application period, the producer
is not eligible for payment.
(h) Producers who submit applications after the application period
are not entitled to any payment consideration or determination of
eligibility. Regardless of the reason why an application is not
submitted to or received by FSA, any application received after the
close of business on such date will not be eligible for benefits under
this program.
Sec.755.4 Eligibility.
(a) To be eligible to receive payments under this part, a
geographically disadvantaged farmer or rancher must:
(1) Be a producer of an eligible agricultural commodity in
substantial commercial quantities;
(2) Incur transportation costs for the transportation of the
agricultural commodity or input used to produce the agricultural
commodity;
(3) Submit an accurate and complete application for payment as
specified in Sec.755.3; and
(4) Be in compliance with the wetland and highly erodible
conservation requirements in part 12 of this title and meet the adjusted
gross income and
[[Page 54]]
pay limit eligibility requirements in part 1400 of this title, as
applicable, except that the $8,000 cap provided for in this rule is a
per producer cap, not a per person cap. For example, a partnership of
four individuals would be considered one producer, not four persons, for
the purposes of this cap and thus the partnership could only generate a
single $8,000 payment under this program if the cap holds because of
full subscription of the program.
(b) Individual producers in an agricultural operation that is an
entity are only eligible for a payment based on their share of the
operation. A producer is not eligible for payment based on the share of
production of any other producer.
(c) Multiple producers, such as the buyer and seller of a commodity
(for example, a producer of hay and a livestock operation that buys the
hay), are not eligible for payments for the same eligible transportation
cost. Unless the multiple producers agree otherwise, only the last buyer
will be eligible for the payment.
(d) A person or entity determined to be a ``foreign person'' under
part 1400 of this title is not eligible to receive benefits under this
part, unless that person provides land, capital, and a substantial
amount of active personal labor in the production of crops on such farm.
(e) State and local governments and their political subdivisions and
related agencies are not eligible for RTCP payments.
Sec.755.5 Proof of eligible reimbursement costs incurred.
(a) To be eligible for reimbursement based on FSA fixed or set rates
as specified in Sec.755.7, the requirements specified in paragraphs
(b) and (c) of this section must be met at the time of the application.
To be eligible for reimbursement of actual costs, the requirements of
paragraph (d) must also be met, within 30 days after the end of the
applicable fiscal year.
(b) Eligible verifiable records to support eligible reimbursement
costs include, but are not limited to:
(1) Invoices;
(2) Account statements;
(3) Contractual Agreements; or
(4) Bill of Lading.
(c) Verifiable records must show:
(1) Name of producer(s);
(2) Commodity and unit of measure;
(3) Type of input(s) associated with transportation costs;
(4) Date(s) of service;
(5) Name of person or entity providing the service, as applicable,
and;
(6) Retail sales receipts with verifiable records handwritten as
applicable.
(d) To be eligible for reimbursement based on actual costs, the
producer must provide supporting documentation that documents the
specific costs incurred for transportation of each commodity or input.
Such documentation must:
(1) Show transportation costs for each specific commodity or input,
and
(2) Show the units of measure for each commodity or input, such that
FSA can determine the transportation cost per unit.
Sec.755.6 Availability of funds.
(a) Payments under this part are subject to the availability of
funds.
(b) A reserve will be created to handle appeals and errors.
Sec.755.7 Transportation rates.
(a) Payments may be based on fixed, set, or actual transportation
rates. Fixed and set transportation rates will be established by FSA,
based on available data for transportation costs for that commodity or
input in the applicable State or insular region.
(b) Fixed transportation rates will establish per unit
transportation costs for each eligible commodity or input used to
produce the eligible commodity.
(c) Set transportation rates will be established for those
transportation costs that are not on the FSA list of fixed rates and for
which an actual rate cannot be documented. The set transportation rate
will be set by FSA, based on available data of transportation costs for
similar commodities and inputs.
(d) Actual transportation rates will be determined based on
supporting documentation.
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Sec.755.8 Calculation of individual payments.
(a) Transportation cost for each commodity or input will be
calculated by multiplying the number of reported eligible units (the
reported transportation amount) times the fixed, set, or actual
transportation rate, as applicable.
(b) Eligible reimbursement amounts will be calculated by multiplying
the result of paragraph (a) of this section times the appropriate FY
COLA percentage, as provided in this part.
(c) If transported inputs are used for both eligible and ineligible
commodities, the eligible reimbursable costs will be determined on a
revenue share of eligible commodities times input cost, as determined by
FSA, and transportation may be allowed only for those commodities which
were produced for the commercial market.
(d) The total payment amount for a producer is the sum of all
eligible reimbursable amounts determined in paragraph (b) of this
section for all commodities and inputs used to produce the eligible
commodities listed on the application.
(e) Payment amounts are subject to $8,000 cap per FY per producer as
defined in this part, not per ``person'' or ``legal entity'' as those
terms might be defined in part 1400 of this title.
(f) In the event that approval of all calculated payment amounts
would result in expenditures in excess of the amount available, FSA will
recalculate the payment amounts in a manner that FSA determines to be
fair and reasonable.
Sec.755.9 Misrepresentation and scheme or device.
(a) In addition to other penalties, sanctions or remedies as may
apply, a producer will be ineligible to receive payments under this part
if the producer is determined by FSA to have:
(1) Adopted any scheme or device that tends to defeat the purpose of
this part;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination.
(b) Any payment to any producer engaged in a misrepresentation,
scheme, or device, must be refunded with interest together with such
other sums as may become due. Any producer engaged in acts prohibited by
this section and receiving payment under this part will be jointly and
severally liable with other producers involved in such claim for
benefits for any refund due under this section and for related charges.
The remedies provided in this part will be in addition to other civil,
criminal, or administrative remedies that may apply.
Sec.755.10 Death, incompetence, or disappearance.
(a) In the case of the death, incompetency, or disappearance of a
person or the dissolution of an entity that is eligible to receive a
payment in accordance with this part, such alternate person or persons
specified in part 707 of this chapter may receive such payment, as
determined appropriate by FSA.
(b) Payments may be made to an otherwise eligible producer who is
now deceased or to a dissolved entity if a representative who currently
has authority to enter into an application for the producer or the
producer's estate signs the application for payment. Proof of authority
over the deceased producer's estate or a dissolved entity must be
provided.
(c) If a producer is now a dissolved general partnership or joint
venture, all members of the general partnership or joint venture at the
time of dissolution or their duly authorized representatives must be
identified in the application for payment.
Sec.755.11 Maintaining records.
Persons applying for payment under this part must maintain records
and accounts to document all eligibility requirements specified in this
part. Such records and accounts must be retained for 3 years after the
date of payment to the producer under this part.
Sec.755.12 Refunds; joint and several liability.
(a) Any producer that receives excess payment, payment as the result
of erroneous information provided by any person, or payment resulting
from a
[[Page 56]]
failure to comply with any requirement or condition for payment under
this part, must refund the amount of that payment to FSA.
(b) Any refund required will be due from the date of the
disbursement by the agency with interest determined in accordance with
paragraph (d) of this section and late payment charges as provided in
part 1403 of this title.
(c) Each producer that has an interest in the agricultural operation
will be jointly and severally liable for any refund and related charges
found to be due to FSA.
(d) Interest will be applicable to any refunds to FSA required in
accordance with parts 792 and 1403 of this title except as otherwise
specified in this part. Such interest will be charged at the rate that
the U.S. Department of the Treasury charges FSA for funds, and will
accrue from the date FSA made the payment to the date the refund is
repaid.
(e) FSA may waive the accrual of interest if it determines that the
cause of the erroneous payment was not due to any action of the person
or entity, or was beyond the control of the person or entity committing
the violation. Any waiver is at the discretion of FSA alone.
Sec.755.13 Miscellaneous provisions and appeals.
(a) Offset. FSA may offset or withhold any amount due to FSA from
any benefit provided under this part in accordance with the provisions
of part 1403 of this title.
(b) Claims. Claims or debts will be settled in accordance with the
provisions of part 1403 of this title.
(c) Other interests. Payments or any portion thereof due under this
part will be made without regard to questions of title under State law
and without regard to any claim or lien against the eligible
reimbursable costs thereof, in favor of the owner or any other creditor
except agencies and instrumentalities of the U.S. Government.
(d) Assignments. Any producer entitled to any payment under this
part may assign any payments in accordance with the provisions of part
1404 of this title.
(e) Violations regarding controlled substances. The provisions of
Sec.718.6 of this chapter, which generally limit program payment
eligibility for persons who have engaged in certain offenses with
respect to controlled substances, will apply to this part.
(f) Appeals. The appeal regulations specified in parts 11 and 780 of
this chapter apply to determinations made under this part.
PART 759_DISASTER DESIGNATIONS AND NOTIFICATIONS--Table of Contents
Sec.
759.1 Administration.
759.2 Purpose.
759.3 Abbreviations and definitions.
759.5 Secretarial disaster area determination and notification process.
759.6 EM to be made available.
Authority: 5 U.S.C. 301, 7 U.S.C. 1961 and 1989.
Source: 77 FR 41254, July 13, 2012, unless otherwise noted.
Sec.759.1 Administration.
(a) This part will be administered under the general supervision and
direction of the Administrator, Farm Service Agency (FSA).
(b) FSA representatives do not have authority to modify or waive any
of the provisions of the regulations of this part as amended or
supplemented.
(c) The Administrator will take any action required by the
regulations of this part that the Administrator determines has not
already been taken. The Administrator will also:
(1) Correct or require correction of any action taken that is not in
accordance with the regulations of this part; or
(2) Require withholding taking any action that is not in accordance
with this part.
(d) No provision or delegation in these regulations will preclude
the Administrator or a designee or other such person, from determining
any question arising under this part, or from reversing or modifying any
determination made under this part.
(e) Absent a delegation to the contrary, this part will be
administered by the Deputy Administrator for Farm
[[Page 57]]
Programs of FSA on behalf of the Administrator of FSA or the Secretary,
but nothing in this part will inhibit the ability of the Administrator
of FSA or the person holding the equivalent position in the event of a
reorganization to delegate the functions of DAFP under these regulations
to another person. Likewise, nothing shall inhibit the ability of the
Secretary to reassign any duties with respect to the designations of
disasters under this part.
Sec.759.2 Purpose.
(a) This part specifies the types of incidents that can result in an
area being determined a disaster area, which under other regulations
makes qualified farmers in such areas eligible for Emergency loans (EM)
or eligible for such other assistance that may be available, based on
Secretarial disaster designations. Nothing in this part overrides
provision of those regulations that govern the actual administration and
availability of the disaster assistance regulations.
(b) This part specifies the responsibility of the County Emergency
Board (CEB), State Emergency Board (SEB), and the State Executive
Director (SED) in regard to Secretarial Designations with regards to
disasters. It also addresses matters relating to the handling of a
Presidential declaration of disaster or the imposition of a USDA
quarantine by the Secretary with respect to triggering the availability
of EM loans.
Sec.759.3 Abbreviations and definitions.
(a) Abbreviations. The following abbreviations apply to this part.
CEB means the County Emergency Board.
CED means the County Executive Director.
DAFP means the Deputy Administrator for Farm Programs of the Farm
Service Agency.
EM means Emergency loan administered under 7 CFR part 764.
FSA means the Farm Service Agency.
LAR means the Loss Assessment Report.
SEB means the State Emergency Board.
SED means the State Executive Director.
USDA means the United States Department of Agriculture.
(b) Definitions. The following definitions apply to this part.
Administrator means the Administrator of FSA.
Contiguous county is used in reference to a primary county as
defined in this section. A contiguous county is any county whose
boundary touches at any point with that of the primary county. For
programs other than the EM Program, disaster assistance regulations will
specify whether benefits will be available only in the primary counties
or also in the contiguous counties. For the EM Program that issue is
addressed in Sec.759.6, unless specified otherwise in the disaster
assistance regulations for other programs or in Sec.759.6 for the EM
Program, only the ``primary'' county will be considered the qualifying
``disaster county.'' Therefore, if the disaster assistance regulations
specify that they cover the disaster area and contiguous counties, then
the only eligible counties would be the primary county and those
contiguous to that county. Coverage would not include coverage of those
counties that are in turn contiguous to those counties that are
contiguous to the primary county.
County is used when referring to a geographical area, a local
administrative subdivision of a State or a similar political subdivision
of the United States generally considered to be in county usage, for
example, it includes an area referred to as a ``county'' or ``parish.''
Except where otherwise specified, the use of the term county or similar
political subdivision is for administrative purposes only.
CEB is comprised of the representatives of several USDA agencies
that have responsibilities for reporting the occurrence of, and
assessing the damage caused by, a natural disaster, and for requesting
approval in declaring a county a disaster area.
CED is the person in charge of administering the local FSA county
office for a particular county.
Disaster area is the county or counties declared or designated as a
disaster area as a result of natural disaster related losses. The
disaster area only includes the primary counties, but
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benefits may be available in the counties contiguous to the primary
county if so provided by the disaster assistance regulations or, in the
case of the EM Program, in Sec.759.6.
LAR is a loss assessment report prepared by the CEB relating to the
State and county where the potential disaster occurred and for which
county or counties the CEB is responsible. The LAR includes as
applicable, but is not limited to, starting and ending dates of the
disaster, crop year affected, type of disaster incident, area of county
affected by disaster; total number of farms affected, crop loss or
pasture loss data associated with the applicable disaster (or both types
of losses), livestock destroyed, and other property losses.
Natural disaster is a disaster in which unusual and adverse weather
conditions or other natural phenomena have substantially affected
farmers by causing severe physical losses, severe production losses, or
both.
Primary county is a county determined to be a disaster area.
Presidential declaration is a declaration of a disaster by the
President under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121-2) requiring Federal emergency assistance
to supplement State and local efforts to save lives and protect
property, public health and safety, or to avert or lessen the threat of
a disaster.
Production losses (severe) within a county are those in which there
has been a reduction county-wide of at least a 30 percent or more loss
of production of at least one crop in the county.
SEB means the State Emergency Board which is comprised of the
representatives of several USDA agencies having emergency program
responsibilities at the State level. The board is required to respond to
emergencies and carry out the Secretary's emergency preparedness
responsibilities.
SED is the person who serves as the Chairperson of the USDA SEB in
each State, is responsible for providing the leadership and coordination
for all USDA emergency programs at the State level, and is subject to
the supervision of DAFP.
Severe physical losses means, for the purpose of determining an
Administrator's declaration of physical loss, losses that consist of
severe damage to, or destruction of: Physical farm property including
farmland (except sheet erosion); structures on the land including, but
not limited to, building, fences, dams; machinery, equipment, supplies,
and tools; livestock, livestock products, poultry and poultry products;
harvested crops and stored crops.
Substantially affected when used to refer to producers and to the
relationship of a particular producer to a particular disaster means a
producer who has sustained qualifying physical or production losses, as
defined in this section, as a result of the natural disaster.
U.S. Drought Monitor is a system for classifying drought severity
according to a range of abnormally dry to exceptional drought. It is a
collaborative effort between Federal and academic partners that is
produced on a weekly basis to synthesize multiple indices, outlooks, and
drought impacts on a map and in narrative form. This synthesis of
indices is reported by the National Drought Mitigation Center.
United States means each of the several States, the Commonwealth of
Puerto Rico, the Virgin Islands of the United States, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands. Extension
of disaster assistance, following a disaster designation, to insular
areas of the United States not covered by this definition of ``United
States'' will be only as authorized by law, and as determined by the
Administrator on behalf of the Secretary to be appropriate.
Sec.759.5 Secretarial disaster area determination and notification
process.
(a) U.S. Drought Monitor. With respect to drought and without
requiring an LAR:
(1) If any portion of a county is physically located in an area with
a Drought Monitor Intensity Classification value of D3 (drought-extreme)
or higher during any part of the growing season of the crops affected by
the disaster in the county, then the county will be designated a
disaster area by the Secretary.
[[Page 59]]
(2) If any portion of a county meets the threshold Drought Monitor
Intensity Classification value of D2 (drought-severe) for at least 8
consecutive weeks during the growing season of affected crops, then the
county will be designated a disaster area by the Secretary.
(b) CEB and SEB recommendations. In instances where counties have
been impacted by a disaster but the county has not been designated a
disaster area under the provisions of paragraph (a) of this section, CEB
will make a disaster designation recommendation request to SEB when a
disaster has resulted in severe production losses. The determination of
the sufficiency of the production losses will be governed by the
provisions in paragraph (c) of this section. The CEB may make such
efforts as are needed to identify counties that have been impacted and
had such production losses. A farmer, Indian Tribal Council, or local
governing body may initiate the process by reporting production losses
or drought conditions to CEB and suggesting that there be a
recommendation in favor of designating a county as a disaster area.
Recommendations by a CEB in favor of a disaster designation by a CEB
under this paragraph are subject to the following:
(1) A LAR is required as part of a CEB disaster designation request.
CEB will submit a disaster designation request with a LAR to SEB for
review and recommendation for approval by the Secretary. CEB's written
request and SEB recommendation must be submitted within three months of
the last day of the occurrence of a natural disaster.
(2) If SEB determines a qualifying natural disaster and loss have
occurred, SEB will forward the recommendation to the Administrator. The
natural disaster may include drought conditions that were not
sufficiently severe to meet the criteria in paragraph (a) of this
section. Since the U.S. Drought Monitor tracks only drought conditions,
not specifically agricultural losses resulting from those conditions, it
is possible for a drought that does not meet the criteria in paragraph
(a) of this section to result in production losses that constitute a
natural disaster.
(3) The Secretary or the Secretary's designee will make disaster
area determinations. The Secretary may delegate the authority to the
SED. In such case, the SED will act on behalf of the Secretary, subject
to review by DAFP as may be appropriate and consistent with the
delegation. The delegation of authority to the SED may be revoked by the
authority making that delegation or by other authorized person. In all
cases, DAFP may reverse any SED determination made in accordance with
this section unless the delegation to the SED specifies that such review
is not allowed.
(c) Eligible production losses. For purposes of making
determinations under paragraph (b) of this section, in order for an area
to be declared a disaster area under paragraph (b) of this section based
on production losses, the county must have had production losses of 30
percent of at least one crop in the county as the result of a natural
disaster.
(d) Discretionary exception to production losses for designating a
county as a disaster county. For purposes of the EM program only, unless
otherwise specified in the designation, a county may be designated by
DAFP as a designated disaster county even though the conditions
specified in paragraphs (a) through (c) of this section are not present
so long as the disaster has otherwise produced such significant
production losses, or other such extenuating circumstances so as to
justify, in the opinion of the Secretary, the designation of a county as
a disaster area. In making this determination, the Secretary may
consider all relevant factors including such factors as the nature and
extent of production losses; the number of farmers who have sustained
qualifying production losses; the number of farmers that other lenders
in the county indicate they will not be in position to provide emergency
financing; whether the losses will cause undue hardship to a certain
segment of farmers in the county; whether damage to particular crops has
resulted in undue hardship; whether other Federal or State benefit
programs, which are being made available due to the same
[[Page 60]]
disaster, will consequently lessen undue hardship and the demand for EM;
and any other factors considered relevant.
Sec.759.6 EM to be made available.
(a) For purposes of the EM Program under part 764, subpart I, of
this chapter, a county will be considered an eligible disaster area as
designated by FSA for coverage of the EM Program as follows:
(1) Secretarial designations. When production losses meet the
requirements in Sec.759.5 and the county has been designated as a
disaster area for that reason, or when the discretionary exception to
production losses for EM under Sec.759.5(d) has been exercised, the
primary and contiguous counties will be areas in which otherwise
eligible producers can receive EM loans.
(2) Physical loss notification. When only qualifying physical losses
occur, the SED will submit a request to the FSA Administrator to make a
determination that a natural disaster has occurred in a county,
resulting in severe physical losses. If the FSA Administrator determines
that such a natural disaster has occurred, then EM can be made available
to eligible farmers for physical losses only in the primary county (the
county that was the subject of that determination) and the counties
contiguous to that county.
(3) USDA quarantine. Any quarantine imposed by the Secretary of
Agriculture under the Plant Protection Act or the animal quarantine
laws, as defined in section 2509 of the Food, Agriculture, Conservation,
and Trade Act of 1990, automatically authorizes EM for production and
physical losses resulting from the quarantine in a primary county (the
county in which the quarantine was in force) and (where the quarantine
effects extend beyond that county) the counties contiguous to that
primary county.
(4) Presidential declaration. Whenever the President declares a
Major Disaster Declaration or an Emergency Declaration, FSA will make EM
available to eligible applicants in declared and contiguous counties,
provided:
(i) The Presidential declaration is not solely for Category A or
Category B Public Assistance or Hazard Mitigation Grant Assistance, and
(ii) The Presidential Major Disaster declaration is for losses due
to severe, general disaster conditions including but not limited to
conditions such as flood, hurricane, or earthquake.
(b) [Reserved]
PART 760_INDEMNITY PAYMENT PROGRAMS--Table of Contents
Subpart A_Dairy Indemnity Payment Program
Program Operations
Sec.
760.1 Administration.
760.2 Definitions.
Payments to Dairy Farmers for Milk
760.3 Indemnity payments on milk.
760.4 Normal marketings of milk.
760.5 Fair market value of milk.
760.6 Information to be furnished.
760.7 Other requirements for affected farmers.
760.8 Application for payments for milk.
760.9 Other legal recourse.
Payments to Manufacturers Affected by Pesticides
760.20 Payments to manufacturers of dairy products.
760.21 Application for payments by manufacturers.
760.22 Information to be furnished by manufacturer.
760.23 Other requirements for manufacturers.
General Provisions
760.24 Limitation of authority.
760.25 Estates and trusts; minors.
760.26 Appeals.
760.27 Setoffs.
760.28 Overdisbursement.
760.29 Death, incompetency, or disappearance.
760.30 Records and inspection thereof.
760.31 Assignment.
760.32 Instructions and forms.
760.33 Availability of funds.
Subpart B_General Provisions for Supplemental Agricultural Disaster
Assistance Programs
760.101 Applicability.
760.102 Administration of ELAP, LFP, LIP, SURE, and TAP.
760.103 Eligible producer.
760.104 Risk management purchase requirements.
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760.105 Waiver for certain crop years; buy-in.
760.106 Equitable relief.
760.107 Socially disadvantaged, limited resource, or beginning farmer or
rancher.
760.108 Payment limitation.
760.109 Misrepresentation and scheme or device.
760.110 Appeals.
760.111 Offsets, assignments, and debt settlement.
760.112 Records and inspections.
760.113 Refunds; joint and several liability.
760.114 Minors.
760.115 Deceased individuals or dissolved entities.
760.116 Miscellaneous.
Subpart C_Emergency Assistance for Livestock, Honeybees, and Farm-Raised
Fish Program
760.201 Applicability.
760.202 Definitions.
760.203 Eligible losses, adverse weather, and other loss conditions.
760.204 Eligible livestock, honeybees, and farm-raised fish.
760.205 Eligible producers, owners, and contract growers.
760.206 Notice of loss and application process.
760.207 Notice of loss and application period.
760.208 Availability of funds.
760.209 Livestock payment calculations.
760.210 Honeybee payment calculations.
760.211 Farm-raised fish payment calculations.
Subpart D_Livestock Forage Disaster Program
760.301 Applicability.
760.302 Definitions.
760.303 Eligible livestock producer.
760.304 Covered livestock.
760.305 Eligible grazing losses.
760.306 Application for payment.
760.307 Payment calculation.
Subpart E_Livestock Indemnity Program
760.401 Applicability.
760.402 Definitions.
760.403 Eligible owners and contract growers.
760.404 Eligible livestock.
760.405 Application process.
760.406 Payment calculation.
Subpart F_Tree Assistance Program
760.500 Applicability.
760.501 Administration.
760.502 Definitions.
760.503 Eligible losses.
760.504 Eligible orchardists and nursery tree growers.
760.505 Application.
760.506 Payment calculation.
760.507 Obligations of a participant.
Subpart G_Supplemental Revenue Assistance Payments Program
760.601 Applicability.
760.602 Definitions.
760.610 Participant eligibility.
760.611 Qualifying losses, eligible causes and types of loss.
760.613 De minimis exception.
760.614 Lack of access.
760.620 Time and method of application and certification of interests.
760.621 Requirement to report acreage and production.
760.622 Incorrect or false producer production evidence.
760.631 SURE guarantee calculation.
760.632 Payment acres.
760.633 2008 SURE guarantee calculation.
760.634 SURE guarantee for value loss crops.
760.635 Total farm revenue.
760.636 Expected revenue.
760.637 Determination of production.
760.638 Determination of SURE yield.
760.640 National average market price.
760.641 Adjustments made to NAMP to reflect loss of quality.
760.650 Calculating SURE.
Subpart H_Crop Assistance Program
760.701 Applicability.
760.702 Definitions.
760.703 Producer eligibility requirements.
760.704 Time and method of application.
760.705 Payment rates and calculation of payments.
760.706 Availability of funds.
760.707 Proof of loss.
760.708 Miscellaneous provisions and limitations.
Subpart I_2005 2007 Crop Disaster Program
760.800 Applicability.
760.801 Administration.
760.802 Definitions.
760.803 Eligibility.
760.804 Time and method of application.
760.805 Limitations on payments and other benefits.
760.806 Crop eligibility requirements.
760.807 Miscellaneous provisions.
760.808 General provisions.
760.809 Eligible damaging conditions.
760.810 Qualifying 2005, 2006, or 2007 quantity crop losses.
760.811 Rates and yields; calculating payments.
760.812 Production losses; participant responsibility.
760.813 Determination of production.
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760.814 Calculation of acreage for crop losses other than prevented
planted.
760.815 Calculation of prevented planted acreage.
760.816 Value loss crops.
760.817 Quality losses for 2005, 2006, and 2007 crops.
760.818 Marketing contracts.
760.819 Misrepresentation, scheme, or device.
760.820 Offsets, assignments, and debt settlement.
760.821 Compliance with highly erodible land and wetland conservation.
Subpart J_2005 2007 Livestock Indemnity Program
760.900 Administration.
760.901 Applicability.
760.902 Eligible counties and disaster periods.
760.903 Definitions.
760.904 Limitations on payments and other benefits.
760.905 Eligible owners and contract growers.
760.906 Eligible livestock.
760.907 Application process.
760.908 Deceased individuals or dissolved entities.
760.909 Payment calculation.
760.910 Appeals.
760.911 Offsets, assignments, and debt settlement.
760.912 Records and inspections.
760.913 Refunds; joint and several liability.
Subpart K_General Provisions for 2005 2007 Livestock Compensation and
Catfish Grant Programs
760.1000 Applicability.
760.1001 Eligible counties, disaster events, and disaster periods.
760.1002 Definitions.
760.1003 Limitations on payments and other benefits.
Subpart L_2005 2007 Livestock Compensation Program
760.1100 Applicability.
760.1101 Administration.
760.1102 Definitions.
760.1103 Eligible livestock and producers.
760.1104 Application for payment.
760.1105 Application process.
760.1106 Payment calculation.
760.1107 Appeals.
760.1108 Offsets, assignments, and debt settlement.
760.1109 Recordkeeping and inspections.
760.1110 Refunds; joint and several liability.
Subpart M_2005 2007 Catfish Grant Program
760.1200 Administration.
760.1201 Application for payment.
760.1202 Eligible producers.
760.1203 Payment calculation.
Subpart N_Dairy Economic Loss Assistance Payment Program
760.1301 Administration.
760.1302 Definitions and acronyms.
760.1303 Requesting benefits.
760.1304 Eligibility.
760.1305 Proof of production.
760.1306 Availability of funds.
760.1307 Dairy operation payment quantity.
760.1308 Payment rate.
760.1309 Appeals.
760.1310 Misrepresentation and scheme or device.
760.1311 Death, incompetence, or disappearance.
760.1312 Maintaining records.
760.1313 Refunds; joint and several liability.
760.1314 Miscellaneous provisions.
Subpart O_Agricultural Disaster Indemnity Programs
760.1500 Applicability.
760.1501 Administration.
760.1502 Definitions.
760.1503 Eligibility.
760.1504 Miscellaneous provisions.
760.1505 General provisions.
760.1506 Availability of funds and timing of payments.
760.1507 Payment limitation.
760.1508 Qualifying disaster events.
760.1509 Eligible and ineligible losses.
760.1510 Application for payment.
760.1511 Calculating payments for yield-based crop losses.
760.1512 Production losses; participant responsibility.
760.1513 Determination of production.
760.1514 Eligible acres.
760.1515 Calculating payments for value loss crops.
760.1516 Calculating payments for tree, bush, and vine losses.
760.1517 Requirement to purchase crop insurance or NAP coverage.
Subpart P_On-Farm Storage Loss Program
760.1600 Applicability.
760.1601 Administration.
760.1602 Definitions.
760.1603 Eligible producers.
760.1604 Eligible commodities.
760.1605 Miscellaneous provisions.
760.1606 General provisions.
760.1607 Availability of funds and timing of payments.
[[Page 63]]
760.1608 Payment limitation and AGI.
760.1609 Qualifying disaster events.
760.1610 Eligible and ineligible losses.
760.1611 Application for payment.
760.1612 Calculating payments on-farm storage losses.
Subpart Q_Milk Loss Program
760.1700 Applicability
760.1701 Administration.
760.1702 Definitions.
760.1703 Payments to dairy farmers for milk.
760.1704 Normal marketings of milk.
760.1705 Fair market value of milk.
760.1706 Information to be furnished.
760.1707 Application for payments for milk loss.
760.1708 Payment limitation and AGI.
760.1709 Limitation of authority.
760.1710 Estates and trusts; minors.
760.1711 Setoffs.
760.1712 Overdisbursement.
760.1713 Death, incompetency, or disappearance.
760.1714 Records and inspection of records.
760.1715 Assignment.
760.1716 Instructions and forms.
760.1717 Availability of funds.
760.1718 Calculating payments for milk losses.
Authority: 7 U.S.C. 4501 and 1531; 16 U.S.C. 3801, note; 19 U.S.C.
2497; Title III, Pub. L. 109-234, 120 Stat. 474; Title IX, Pub. L. 110-
28, 121 Stat. 211; Sec. 748, Pub. L. 111-80, 123 Stat. 2131; Title I,
Pub. L. 115-123; and Title I, Pub. L. 116-20.
Subpart A_Dairy Indemnity Payment Program
Authority: 7 U.S.C. 450j-l.
Source: 43 FR 10535, Mar. 14, 1978, unless otherwise noted.
Program Operations
Sec.760.1 Administration.
This indemnity payment program will be carried out by FSA under the
direction and supervision of the Deputy Administrator. In the field, the
program will be administered by the State and county committees.
Sec.760.2 Definitions.
For purposes of this subject, the following terms shall have the
meanings specified:
Affected farmer means a person who produces whole milk which is
removed from the commerical market any time from:
(1) Pursuant to the direction of a public agency because of the
detection of pesticide residues in such whole milk by tests made by a
public agency or under a testing program deemed adequate for the purpose
by a public agency, or
(2) Pursuant to the direction of a public agency because of the
detection of other residues of chemicals or toxic substances residues,
or contamination from nuclear radiation or fallout in such whole milk by
tests made by a public agency or under a testing program deemed adequate
for the purpose by a public agency.
Affected manufacturer means a person who manufactures dairy products
which are removed from the commercial market pursuant to the direction
of a public agency because of the detection of pesticide residue in such
dairy products by tests made by a public agency or under a testing
program deemed adequate for the purpose by a public agency.
Application period means any period during which an affected
farmer's whole milk is removed from the commercial market pursuant to
direction of a public agency for a reason specified in paragraph (k) of
this section and for which application for payment is made.
Base period means the calendar month or 4-week period immediately
preceding removal of milk from the market.
Chemicals or Toxic Substances means any chemical substance or
mixture as defined in the Toxic Substances Control Act (15 U.S.C. 2602).
Commercial market means (1) the market to which the affected farmer
normally delivers his whole milk and from which it was removed because
of detection therein of a residue of a violating substance(s) or (2) the
market to which the affected manufacturer normally delivers his dairy
products and from which they were removed because of detection therein
of pesticide residue.
County committee means the FSA county committee.
Deputy Administrator means the Deputy Administrator for Farm
Programs, FSA.
[[Page 64]]
FSA means the Farm Service Agency, U.S. Department of Agriculture.
Milk handler means the marketing agency to or through which the
affected dairy farmer marketed his whole milk at the time he was
directed by the public agency to remove his whole milk from the
commercial market.
Nuclear Radiation or Fallout means contamination from nuclear
radiation or fallout from any source.
Pay period means (1) in the case of an affected farmer who markets
his whole milk through a milk handler, the period used by the milk
handler in settling with the affected farmer for his whole milk, usually
biweekly or monthly, or (2) in the case of an affected farmer whose
commercial market consists of direct retail sales to consumers, a
calendar month.
Payment subject to refund means a payment which is made by a milk
handler to an affected farmer, and which such farmer is obligated to
refund to the milk handler.
Person means an individual, partnership, association, corporation,
trust, estate, or other legal entity.
Pesticide means an economic poison which was registered pursuant to
the provisions of the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended (7 U.S.C. 135 through 135k), and approved for use by the
Federal Government.
Public agency means any Federal, State or local public regulatory
agency.
Removed from the commercial market means (1) produced and destroyed
or fed to livestock, (2) produced and delivered to a handler who
destroyed it or disposed of it as salvage (such as separating whole
milk, destroying the fat, and drying the skim milk), or (3) produced and
otherwise diverted to other than the commercial market.
Same loss means the event or trigger that caused the milk to be
removed from the commercial market. For example, if milk is
contaminated, the original cause of the contamination was the trigger
and any loss related to that contamination would be considered the same
loss.
Secretary means the Secretary of Agriculture of the United States or
any officer or employee of the U.S. Department of Agriculture to whom he
has delegated, or to whom he may hereafter delegate, authority to act in
his stead.
State committee means the FSA State committee.
Violating Substance means one or more of the items defined in
paragraphs (f), (g), and (h) of this section.
Whole milk means milk as it is produced by cows.
[43 FR 10535, Mar. 14, 1978, as amended by Amdt. 1, 44 FR 36360, July
22, 1979; 52 FR 17935, May 13, 1987; 53 FR 44001, Nov. 1, 1988; 56 FR
1358, Jan. 14, 1991; 61 FR 18485, Apr. 26, 1996; 71 FR 27190, May 10,
2006; 84 FR 28176, June 18, 2019]
Payments to Dairy Farmers for Milk
Sec.760.3 Indemnity payments on milk.
An indemnity payment for milk may be made to an affected farmer who
is determined by the county committee to be in compliance with all the
terms and conditions of this subpart in the amount of the fair market
value of his normal marketings for the application period, as determined
in accordance with Sec. Sec.760.4 and 760.5, less (a) any amount he
received for whole milk marketed during the applications period, and (b)
any payment not subject to refund which he received from a milk handler
with respect to whole milk removed from the commercial market during the
application period.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec.760.4 Normal marketings of milk.
(a) The county committee shall determine the affected farmer's
normal marketings which, for the purposes of this subpart, shall be the
sum of the quantities of whole milk which such farmer would have sold in
the commercial market in each of the pay periods in the application
period but for the removal of his whole milk from the commercial market
because of the detection of a residue of a violating substance.
(b) Normal marketings for each pay period are based on the average
daily production during the base period.
[[Page 65]]
(c) Normal marketings determined in paragraph (b) of this section
are adjusted for any change in the daily average number of cows milked
during each pay period the milk is off the market compared with the
average number of cows milked daily during the base period.
(d) If only a portion of a pay period falls within the application
period, normal marketings for such pay period shall be reduced so that
they represent only that part of such pay period which is within the
application period.
[43 FR 10535, Mar. 14, 1978, as amended by Amdt. 1, 44 FR 36360, July
22, 1979]
Sec.760.5 Fair market value of milk.
(a) The county committee shall determine the fair market value of
the affected farmer's normal marketings, which, for the purposes of this
subpart, shall be the sum of the net proceeds such farmer would have
received for his normal marketings in each of the pay periods in the
application period.
(b) The county committee shall determine the net proceeds the
affected farmer would have received in each of the pay periods in the
application period (1) in the case of an affected farmer who markets his
whole milk through a milk handler, by multiplying the affected farmer's
normal marketings for each such pay period by the average net price per
hundred-weight of whole milk paid during the pay period by such farmer's
milk handler in the same area for whole milk similar in quality and
butterfat test to that marketed by the affected farmer in the base
period used to determine his normal marketings, or (2) in the case of an
affected farmer whose commercial market consists of direct retail sales
to consumers, by multiplying the affected farmer's normal marketings for
each such pay period by the average net price per hundredweight of whole
milk, as determined by the county committee, which other producers in
the same area who marketed their whole milk through milk handlers
received for whole milk similar in quality and butterfat test to that
marketed by the affected farmer during the base period used to determine
his normal marketings.
(c) In determining the net price for whole milk, the county
committee shall deduct from the gross price therefor any transportation,
administrative, and other costs of marketing which it determines are
normally incurred by the affected farmer but which were not incurred
because of the removal of his whole milk from the commercial market.
Sec.760.6 Information to be furnished.
The affected farmer shall furnish to the county committee complete
and accurate information sufficient to enable the county committee or
the Deputy Administrator to make the determinations required in this
subpart. Such information shall include, but is not limited to:
(a) A copy of the notice from, or other evidence of action by, the
public agency which resulted in the removal of the affected farmer's
whole milk from the commercial market.
(b) The specific name of the violating substance causing the removal
of his whole milk from the commercial market, if not included in the
notice or other evidence of action furnished under paragraph (a) of this
section.
(c) The quantity and butterfat test of whole milk produced and
marketed during the base period. This information must be a certified
statement from the affected farmer's milk handler or any other evidence
the county committee accepts as an accurate record of milk production
and butterfat tests during the base period.
(d) The average number of cows milked during the base period and
during each pay period in the application.
(e) If the affected farmer markets his whole milk through a milk
handler, a statement from the milk handler showing, for each pay period
in the application period, the average price per hundred-weight of whole
milk similar in quality to that marketed by the affected farmer during
the base period used to determine his normal marketings. If the milk
handler has information as to the transportation, administrative, and
other costs of marketing which are normally incurred by producers who
market through the milk handler but which the affected
[[Page 66]]
farmer did not incur because of removal of his whole milk from the
market, the average price stated by the milk handler shall be the
average gross price paid producers less any such costs. If the milk
handler does not have such information, the affected farmer shall
furnish a statement setting forth such costs, if any.
(f) The amount of proceeds, if any, received by the affected farmer
from the marketing of whole milk produced during the application period.
(g) The amount of any payments not subject to refund made to the
affected farmer by the milk handler with respect to the whole milk
produced during the application period and remove from the commercial
market.
(h) To the extent that such information is available to the affected
farmer, the name of any pesticide, chemical, or toxic substance used on
the farm within 24 months prior to the application period, the use made
of the pesticide, chemical, or toxic substance, the approximate date of
such use, and the name of the manufacturer and the registration number,
if any, on the label on the container of the pesticide, chemical, or
toxic substance.
(i) To the extent possible, the source of the pesticide, chemical,
or toxic substance that caused the contamination of the whole milk, and
the results of any laboratory tests on the feed supply.
(j) Such other information as the county committee may request to
enable the county committee or the Deputy Administrator to make the
determinations required in this subpart.
[43 FR 10535, Mar. 14, 1978, as amended by Amdt. 1, 44 FR 36360, June
22, 1979]
Sec.760.7 Other requirements for affected farmers.
An indemnity payment for milk may be made under this subpart to an
affected farmer only under the following conditions:
(a) If the pesticide, chemical, or toxic substance, contaminating
the milk was used by the affected farmer, he established each of the
following:
(1) That the pesticide, chemical or toxic substance, when used, was
registered (if applicable) and approved for use as provided in Sec.
760.2(f);
(2) That the contamination of his milk was not the result of his
failure to use the pesticide, chemical, or toxic substance, according to
the directions and limitations stated on the label;
(3) That the contamination of his milk was not otherwise his fault.
(b) If the pesticide, chemical, or toxic substance contaminating the
milk was not used by the affected farmer, he establishes each of the
following:
(1) He did not know or have reason to believe that any feed which he
purchased and which contaminated his milk contained a harmful residue of
a pesticide, a chemical, or a toxic substance or was contaminated by
nuclear radiation or fallout.
(2) None of the milk was produced by dairy cattle which he knew, or
had reason to know at the time he acquired them, were contaminated with
residues of pesticides, chemicals or toxic substances, or by nuclear
radiation or fallout.
(3) The contamination of his milk was not otherwise his fault.
(c) The affected farmer has adopted recommended practices for
eliminating residues of pesticides, chemicals, or toxic substances or
contamination from nuclear radiation or fallout from his milk as soon as
practicable following the discovery of the initial contamination.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec.760.8 Application for payments for milk.
The affected farmer or his legal representative, as provided in
Sec. Sec.760.25 and 760.29, must sign and file an application for
payment on a form which is approved for that purpose by the Deputy
Administrator. The form must be filed with the county FSA office for the
county where the farm headquarters are located no later than December 31
following the end of the fiscal year in which the loss occurred, or such
later date as the Deputy Administrator may specify. The application for
payment shall cover application periods of at least 28 days, except
that, if the entire application period, or the last application period,
is shorter than 28 days, applications for payment may be filed for such
shorter period. The application
[[Page 67]]
for payment shall be accompanied by the information required by Sec.
760.6 as well as any other information which will enable the county
committee to determine whether the making of an indemnity payment is
precluded for any of the reasons set forth in Sec.760.7. Such
information shall be submitted on forms approved for the purpose by the
Deputy Administrator.
[43 FR 10535, Mar. 14, 1978, as amended at 51 FR 12986, Apr. 17, 1986;
52 FR 17935, May 13, 1987]
Sec.760.9 Other legal recourse.
(a) No indemnity payment shall be made for contaminated milk
resulting from residues of chemicals or toxic substances if, within 30
days after receiving a complete application, the Deputy Administrator
determines that other legal recouse is available to the farmer. An
application shall not be deemed complete unless it contains all
information necessary to make a determination as to whether other legal
recourse is available to the farmer. However, notwithstanding such a
determination, the Deputy Administrator may reopen the case at a later
date and make a new determination on the merits of the case as may be
just and equitable.
(b) In the event that a farmer receives an indemnity payment under
this subpart, and such farmer is later compensated for the same loss by
the person (or the representative or successor in interest of such
person) responsible for such loss, the indemnity payment shall be
refunded by the farmer to the Department of Agriculture: Provided, That
the amount of such refund shall not exceed the amount of other
compensation received by the farmer.
(c) The period eligible for DIPP benefits for the same loss may not
extend past the time period that the impacted dairy cows in the dairy
herd are no longer lactating or impacted dairy cows in gestation have
delivered a calf and are no longer lactating from its most immediately
preceding birth after the contaminating event, not to exceed 18 months.
Claims for milk from the affected farmer not reinstated to the
commercial markets after the impacted dairy cows in the herd are dry and
no longer producing milk from its most immediately preceding birth after
the contaminating event, or have exceeded the 18-month period will not
be compensated any further. Dairy producers that have exceeded the
specified period established by FSA before June 18, 2018 will be allowed
to submit one additional claim. Dairy cows purchased or bred after the
occurrence of the contaminating event may not be included in the claim
for benefits.
[Amdt. 1, 44 FR 36361, June 22, 1979, as amended at 84 FR 28176, June
18, 2019]
Payments to Manufacturers Affected by Pesticides
Sec.760.20 Payments to manufacturers of dairy products.
An indemnity payment may be made to the affected manufacturer who is
determined by the Deputy Administrator to be in compliance with all the
terms and conditions of this subpart in the amount of the fair market
value of the product removed from the commercial market because of
pesticide residues, less any amount the manufacturer receives for the
product in the form of salvage.
Note: Manufacturers are not eligible for payment when dairy products
are contaminated by chemicals, toxic substances (other than pesticides)
or nuclear radiation or fallout.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec.760.21 Application for payments by manufacturers.
The affected manufacturer, or his legal representatives, shall file
an application for payment with the Deputy Administrator, FSA,
Washington, D.C., through the county office serving the county where the
contaminated product is located. The application for payment may be in
the form of a letter or memorandum. Such letter or memorandum, however,
must be accompanied by acceptable documentation to support such
application for payment.
Sec.760.22 Information to be furnished by manufacturer.
The affected manufacturer shall furnish the Deputy Administrator,
[[Page 68]]
through the county committee, complete and accurate information
sufficient to enable him to make the determination as to the
manufacturer's eligibility to receive an indemnity payment. Such
information shall include, but is not limited to:
(a) A copy of the notice or other evidence of action by the public
agency which resulted in the product being removed from the commerical
market.
(b) The name of the pesticide causing the removal of the product
from the commerical market and, to the extent possible, the source of
the pesticide.
(c) A record of the quantity of milk or butterfat used to produce
the product for which an indemnity payment is requested.
(d) The identity of any pesticide used by the affected manufacturer.
(e) Such other information as the Deputy Administrator may request
to enable him to make the determinations required in this subpart.
Sec.760.23 Other requirements for manufacturers.
An indemnity payment may be made under this subpart to an affected
manufacturer only under the following conditions:
(a) If the pesticide contaminating the product was used by the
affected manufacturer, he establishes each of the following: (1) That
the pesticide, when used, was registered and recommended for such use as
provided in Sec.760.2(f); (2) that the contamination of his product
was not the result of his failure to use the pesticide in accordance
with the directions and limitations stated on the label of the
pesticide; and (3) that the contamination of his product was not
otherwise his fault.
(b) If the pesticide contaminating the product was not used by the
affected manufacturer: (1) He did not know or have reason to believe
that the milk from which the product was processed contained a harmful
level of pesticide residue, and (2) the contamination of his product was
not otherwise his fault.
(c) In the event that a manufacturer receives an indemnity payment
under this subpart, and such manufacturer is later compensated for the
same loss by the person (or the representative or successor in interest
of such person) responsible for such loss, the indemnity payment shall
be refunded by the manufacturer to the Department of Agriculture:
Provided, That the amount of such refund shall not exceed the amount of
other compensation received by the manufacturer.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982; 51
FR 12987, Apr. 17, 1986; 52 FR 17935, May 13, 1987]
General Provisions
Sec.760.24 Limitation of authority.
(a) County executive directors and State and county committees do
not have authority to modify or waive any of the provisions of the
regulations in this subpart.
(b) The State committee may take any action authorized or required
by the regulations in this subpart to be taken by the county committee
when such action has not been taken by the county committee. The State
committee may also:
(1) Correct, or require a county committee to correct, any action
taken by such county committee which is not in accordance with the
regulations in this subpart, or (2) require a county committee to
withhold taking any action which is not in accordance with the
regulations in this subpart.
(c) No delegation herein to a State or county committee shall
preclude the Deputy Administrator or his designee from determining any
question arising under the regulations in this subpart or from reversing
or modifying any determination made by a State or county committee.
Sec.760.25 Estates and trusts; minors.
(a) A receiver of an insolvent debtor's estate and the trustee of a
trust estate shall, for the purpose of this subpart, be considered to
represent an insolvent affected farmer or manufacturer and the
beneficiaries of a trust, respectively, and the production of the
receiver or trustee shall be considered to be the production of the
person or manufacturer he represents. Program documents executed by any
such person will be accepted only if they are legally valid and such
person has the authority to sign the applicable documents.
[[Page 69]]
(b) An affected dairy farmer or manufacturer who is a minor shall be
eligible for indemnity payments only if he meets one of the following
requirements:
(1) The right of majority has been conferred on him by court
proceedings or by statute;
(2) A guardian has been appointed to manage his property and the
applicable program documents are signed by the guardian; or
(3) A bond is furnished under which the surety guarantees any loss
incurred for which the minor would be liable had he been an adult.
Sec.760.26 Appeals.
The appeal regulations issued by the Administrator, FSA, part 780 of
this chapter, shall be applicable to appeals by dairy farmers or
manufacturers from determinations made pursuant to the regulations in
this subpart.
Sec.760.27 Setoffs.
(a) If the affected farmer or manufacturer is indebted to any agency
of the United States and such indebtedness is listed on the county debt
record, indemnity payments due the affected farmer or manufacturer under
the regulations in this part shall be applied, as provided in the
Secretary's setoff regulations, part 13 of this title, to such
indebtedness.
(b) Compliance with the provisions of this section shall not deprive
the affected farmer or manufacturer of any right he would otherwise have
to contest the justness of the indebtedness involved in the setoff
action, either by administrative appeal or by legal action.
Sec.760.28 Overdisbursement.
If the indemnity payment disbursed to an affected farmer or to a
manufacturer exceeds the amount authorized under the regulations in this
subpart, the affected farmer or manufacturer shall be personally liable
for repayment of the amount of such excess.
Sec.760.29 Death, incompetency, or disappearance.
In the case of the death, incompetency, or disappearance of any
affected farmer or manufacturer who would otherwise receive an indemnity
payment, such payment may be made to the person or persons specified in
the regulations contained in part 707 of this chapter. The person
requesting such payment shall file Form FSA-325, ``Application for
Payment of Amounts Due Persons Who Have Died, Disappeared, or Have Been
Declared Incompetent,'' as provided in that part.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec.760.30 Records and inspection thereof.
(a) The affected farmer, as well as his milk handler and any other
person who furnished information to such farmer or to the county
committee for the purpose of enabling such farmer to receive a milk
indemnity payment under this subpart, shall maintain any existing books,
records, and accounts supporting any information so furnished for 3
years following the end of the year during which the application for
payment was filed. The affected farmer, his milk handler, and any other
person who furnishes such information to the affected farmer or to the
county committee shall permit authorized representatives of the
Department of Agriculture and the General Accounting Office, during
regular business hours, to inspect, examine, and make copies of such
books, records, and accounts.
(b) The affected manufacturer or any other person who furnishes
information to the Deputy Administrator for the purposes of enabling
such manufacturer to receive an indemnity payment under this subpart
shall maintain any books, records, and accounts supporting any
information so furnished for 3 years following the end of the year
during which the application for payment was filed. The affected
manufacturer or any other person who furnishes such information to the
Deputy Administrator shall permit authorized representatives of the
Department of Agriculture and the General Accounting Office, during
regular business hours, to inspect, examine, and make copies of such
books, records, and accounts.
[[Page 70]]
Sec.760.31 Assignment.
No assignment shall be made of any indemnity payment due or to come
due under the regulations in this subpart. Any assignment or attempted
assignment of any indemnity payment due or to come due under this
subpart shall be null and void.
Sec.760.32 Instructions and forms.
The Deputy Administrator shall cause to be prepared such forms and
instructions as are necessary for carrying out the regulations in this
subpart. Affected farmers and manufacturers may obtain information
necessary to make application for a dairy indemnity payment from the
county FSA office. Form FSA-373--Application for Indemnity Payment, is
available at the county ASC office.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec.760.33 Availability of funds.
(a) Payment of indemnity claims will be contingent upon the
availability of FSA funds to pay such claims. Claims will be, to the
extent practicable within funding limits, paid from available funds, on
a first-come, first-paid basis, based on the date FSA approves the
application, until funds available in that fiscal year have been
expended.
(b) DIPP claims received in a fiscal year after all available funds
have been expended will not receive payment for such claims.
[75 FR 41367, July 16, 2010]
Subpart B_General Provisions for Supplemental Agricultural Disaster
Assistance Programs
Source: 74 FR 31571, July 2, 2009, unless otherwise noted.
Sec.760.101 Applicability.
(a) This subpart establishes general conditions for this subpart and
subparts C through H of this part and applies only to those subparts.
Subparts C through H cover the following programs provided for in the
``2008 Farm Bill'' (Pub. L. 110-246):
(1) Emergency Assistance for Livestock, Honey Bees, and Farm-Raised
Fish Program (ELAP);
(2) Livestock Forage Disaster Program (LFP);
(3) Livestock Indemnity Payments Program (LIP);
(4) Supplemental Revenue Assistance Payments Program (SURE); and
(5) Tree Assistance Program (TAP).
(b) To be eligible for payments under these programs, participants
must comply with all provisions under this subpart and the relevant
particular subpart for that program. All other provisions of law also
apply.
Sec.760.102 Administration of ELAP, LFP, LIP, SURE, and TAP.
(a) The programs in subparts C through H of this part will be
administered under the general supervision and direction of the
Administrator, Farm Service Agency (FSA), and the Deputy Administrator
for Farm Programs, FSA (who is referred to as the ``Deputy
Administrator'' in this part).
(b) FSA representatives do not have authority to modify or waive any
of the provisions of the regulations of this part as amended or
supplemented, except as specified in paragraph (e) of this section.
(c) The State FSA committee will take any action required by the
regulations of this part that the county FSA committee has not taken.
The State FSA committee will also:
(1) Correct, or require a county FSA committee to correct, any
action taken by such county FSA committee that is not in accordance with
the regulations of this part or
(2) Require a county FSA committee to withhold taking any action
that is not in accordance with this part.
(d) No provision or delegation to a State or county FSA committee
will preclude the Administrator, the Deputy Administrator for Farm
Programs, or a designee or other such person, from determining any
question arising under the programs of this part, or from reversing or
modifying any determination made by a State or county FSA committee.
(e) The Deputy Administrator for Farm Programs may authorize State
and county FSA committees to waive
[[Page 71]]
or modify non-statutory deadlines, or other program requirements of this
part in cases where lateness or failure to meet such requirements does
not adversely affect operation of the programs in this part.
Participants have no right to seek an exception under this provision.
The Deputy Administrator's refusal to consider cases or circumstances or
decision not to exercise this discretionary authority under this
provision will not be considered an adverse decision and is not
appealable.
Sec.760.103 Eligible producer.
(a) In general, the term ``eligible producer'' means, in addition to
other requirements as may apply, an individual or entity described in
paragraph (b) of this section that, as determined by the Secretary,
assumes the production and market risks associated with the agricultural
production of crops or livestock on a farm either as the owner of the
farm, when there is no contract grower, or a contract grower of the
livestock when there is a contract grower.
(b) To be eligible for benefits, an individual or entity must be a:
(1) Citizen of the United States;
(2) Resident alien; for purposes of this part, resident alien means
``lawful alien'' as defined in 7 CFR part 1400;
(3) Partnership of citizens of the United States; or
(4) Corporation, limited liability corporation, or other farm
organizational structure organized under State law.
Sec.760.104 Risk management purchase requirements.
(a) To be eligible for program payments under:
(1) ELAP, SURE, and TAP, eligible producers for any commodity at any
location for which the producer seeks benefits must have for every
commodity on every farm in which the producer has an interest for the
relevant program year:
(i) In the case of an ``insurable commodity,'' (which for this part
means a commodity for which the Deputy Administrator determines
catastrophic coverage is available from the USDA Risk Management Agency
(RMA)) obtained catastrophic coverage or better under a policy or plan
of insurance administered by RMA under the Federal Crop Insurance Act
(FCIA) (7 U.S.C. 1501-1524), except that this obligation will not
include crop insurance pilot programs so designated by RMA or to forage
crops intended for grazing, and
(ii) In the case of a ``noninsurable commodity,'' (which is any
commodity for which, as to the particular production in question, is not
an ``insurable commodity,'' but for which coverage is available under
the Noninsured Crop Disaster Assistance Program (NAP) operated under 7
CFR part 1437), have obtained NAP coverage by filing the proper
paperwork and fee within the relevant deadlines, except that this
requirement will not include forage on grazing land.
(2) LFP, with respect to those grazing lands incurring losses for
which assistance is being requested, eligible livestock producers must
have:
(i) Obtained a policy or plan of insurance for the forage crop under
FCIA, or
(ii) Filed the required paperwork and paid the administrative fee by
the applicable State filing deadline for NAP coverage for that grazing
land.
(b) Producers who did not purchase a policy or plan of insurance
administered by RMA in accordance with FCIA (7 U.S.C. 1501-1524), or NAP
coverage for their applicable crops, will not be eligible for assistance
under ELAP, LFP, SURE, and TAP, as provided in paragraph (a) of this
section unless the producer is one of the classes of farmers for which
an exemption under Sec.760.107 apply, is exempt under the ``buy-in''
provisions of this subpart, or is granted relief from that requirement
by the Deputy Administrator under some other provision of this part.
(c) Producers who have obtained insurance by a written agreement as
specified in Sec.400.652(d) of this title even though that production
would not normally be considered an ``insurable commodity'' under the
rules of this subpart, will be considered to have met the risk
management purchase requirement of this subpart with respect to such
production. The commodity to which the agreement applies will be
considered for purposes of this subpart to be an ``insurable
commodity.''
[[Page 72]]
(d) Producers by an administrative process who were granted NAP
coverage for the relevant period as a form of relief in an
administrative proceeding, or who were awarded NAP coverage for the
relevant period through an appeal through the National Appeals Division
(NAD), will be considered as having met the NAP eligibility criteria of
this section for that crop as long as the applicable NAP service fee has
been paid.
(e) The risk management purchase requirement for programs specified
under this part will be determined based on the initial intended use of
a crop at the time a policy or plan of insurance or NAP coverage was
purchased and as reported on the acreage report.
[74 FR 31571, July 2, 2009, as amended at 74 FR 46673, Sept. 11, 2009]
Sec.760.105 Waiver for certain crop years; buy-in.
(a) For the 2008 crop year, the insurance or NAP purchase
requirements of Sec.760.104 (this is referred to as the ``purchase''
requirement) will be waived for eligible producers for losses during the
2008 crop year if the eligible producer paid a fee (buy-in fee) equal to
the applicable NAP service fee or catastrophic risk protection plan fee
to the Secretary by September 16, 2008. Payment of a buy-in fee under
this section is for the sole purpose of becoming eligible for
participation in ELAP, LFP, SURE, and TAP. Payment of a buy-in fee does
not provide any actual insurance or NAP coverage or assistance.
(b) For the 2009 crop year, the purchase requirement will be waived
for purchases where the closing date for coverage occurred prior to
August 14, 2008, so long as the buy-in fee set by the Secretary of
Agriculture was paid by January 12, 2009.
(c) Any producer of 2008 commodities who is otherwise ineligible
because of the purchase requirement and who did not meet the conditions
of paragraph (a) of this section may still be covered for ELAP, SURE, or
TAP assistance if the producer paid the applicable fee described in
paragraph (d) of this section no later than May 18, 2009, provided that
in the case of each:
(1) Insurable commodity, excluding grazing land, the eligible
producers on the farm agree to obtain a policy or plan of insurance
under FCIA (7 U.S.C. 1501-1524), excluding a crop insurance pilot
program under that subtitle, for the next insurance year for which crop
insurance is available to the eligible producers on the farm at a level
of coverage equal to 70 percent or more of the recorded or appraised
average yield indemnified at 100 percent of the expected market price,
or an equivalent coverage, and
(2) Noninsurable commodity, the eligible producers on the farm must
agree to file the required paperwork, and pay the administrative fee by
the applicable State filing deadline, for NAP for the next year for
which a policy is available.
(d) For producers seeking eligibility under paragraph (c) of this
section, the applicable buy-in fee for the 2008 crop year was the
catastrophic risk protection plan fee or the applicable NAP service fee
in effect prior to NAP service fee adjustments specified in the 2008
Farm Bill.
Sec.760.106 Equitable relief.
(a) The Secretary may provide equitable relief on a case-by-case
basis for the purchase requirement to eligible participants that:
(1) Are otherwise ineligible or provide evidence, satisfactory to
FSA, that the failure to meet the requirements of Sec.760.104 for one
or more eligible crops on the farm was unintentional and not because of
any fault of the participant, as determined by the Secretary, or
(2) Failed to meet the requirements of Sec.760.104 due to the
enactment of the 2008 Farm Bill after the:
(i) Applicable sales closing date for a policy or plan of insurance
in accordance with the FCIA (7 U.S.C. 1501-1524) or
(ii) Application closing date for NAP.
(b) Equitable relief will not be granted to participants in
instances of:
(1) A scheme or device that had the effect or intent of defeating
the purposes of a program of insurance, NAP, or any other program
administered under this part or elsewhere in this title,
[[Page 73]]
(2) An intentional decision to not meet the purchase or buy-in
requirements,
(3) Producers against whom sanctions have been imposed by RMA or FSA
prohibiting the purchase of coverage or prohibiting the receipt of
payments otherwise payable under this part,
(4) Violations of highly erodible land and wetland conservation
provisions of 7 CFR part 12,
(5) Producers who are ineligible under any provisions of law,
including regulations, relating to controlled substances (see for
example 7 CFR 718.6), or
(6) A producer's debarment by a federal agency from receiving any
federal government payment if such debarment included payments of the
type involved in this matter.
(c) In general, no relief that is discretionary will be allowed
except upon a finding by the Deputy Administrator or the Deputy
Administrator's designee that the person seeking the relief acted in
good faith as determined in accordance with such rules and procedures as
may be set by the Deputy Administrator.
[74 FR 31571, July 2, 2009, as amended at 76 FR 54075, Aug. 31, 2011]
Sec.760.107 Socially disadvantaged, limited resource, or beginning
farmer or rancher.
(a) Risk management purchase requirements, as provided in Sec.
760.104, will be waived for a participant who, as specified in
paragraphs (b)(1) through (3) of this section, is eligible to be
considered a ``socially disadvantaged farmer or rancher,'' a ``limited
resource farmer or rancher,'' or a ``beginning farmer or rancher.''
(b) To qualify for this section as a ``socially disadvantaged farmer
or rancher,'' ``limited resource farmer or rancher,'' or ``beginning
farmer or rancher,'' participants must meet eligibility criteria as
follows:
(1) A ``socially disadvantaged farmer or rancher'' is, for this
section, a farmer or rancher who is a member of a socially disadvantaged
group whose members have been subjected to racial or ethnic prejudice
because of their identity as members of a group without regard to their
individual qualities. Gender is not included as a covered group.
Socially disadvantaged groups include the following and no others unless
approved in writing by the Deputy Administrator:
(i) American Indians or Alaskan Natives,
(ii) Asians or Asian-Americans,
(iii) Blacks or African Americans,
(iv) Native Hawaiians or other Pacific Islanders, and
(v) Hispanics.
(2) A ``limited resource farmer or rancher'' means for this section
a producer who is both:
(i) A producer whose direct or indirect gross farm sales do not
exceed $100,000 in both of the two calendar years that precede the
calendar year that corresponds to the relevant program year, adjusted
upwards for any general inflation since fiscal year 2004, inflation as
measured using the Prices Paid by Farmer Index compiled by the National
Agricultural Statistics Service (NASS), and
(ii) A producer whose total household income is at or below the
national poverty level for a family of four, or less than 50 percent of
the county median household income for the same two calendar years
referenced in paragraph (b)(2)(i) of this section, as determined
annually using Commerce Department data. (Limited resource farmer or
rancher status can be determined using a Web site available through the
Limited Resource Farmer and Rancher Online Self Determination Tool
through the National Resource and Conservation Service at http://
www.lrftool.sc.egov.usda.gov/tool.asp.)
(3) A ``beginning farmer or rancher'' means for this section a
person or legal entity who for a program year both:
(i) Has never previously operated a farm or ranch, or who has not
operated a farm or ranch in the previous 10 years, applicable to all
members (shareholders, partners, beneficiaries, etc., as fits the
circumstances) of an entity, and
(ii) Will have or has had for the relevant period materially and
substantially participated in the operation of a farm or ranch.
(c) If a legal entity requests to be considered a ``socially
disadvantaged,'' ``limited resource,'' or ``beginning''
[[Page 74]]
farmer or rancher, at least 50 percent of the persons in the entity must
in their individual capacities meet the definition as provided in
paragraphs (b)(1) through (3) of this section and it must be clearly
demonstrated that the entity was not formed for the purposes of avoiding
the purchase requirements or formed after the deadline for the purchase
requirement.
[74 FR 31571, July 2, 2009, as amended at 76 FR 54075, Aug. 31, 2011]
Sec.760.108 Payment limitation.
(a) For 2008, no person, as defined and determined under the
provisions in part 1400 of this title in effect for 2008 may receive
more than:
(1) $100,000 total for the 2008 program year under ELAP, LFP, LIP,
and SURE combined or
(2) $100,000 for the 2008 program year under TAP.
(b) For 2009 and subsequent program years, no person or legal
entity, excluding a joint venture or general partnership, as determined
by the rules in part 1400 of this title may receive, directly or
indirectly, more than:
(1) $100,000 per program year total under ELAP, LFP, LIP, and SURE
combined; or
(2) $100,000 per program year under TAP.
(c) The Deputy Administrator may take such actions as needed,
whether or not specifically provided for, to avoid a duplication of
benefits under the multiple programs provided for in this part, or
duplication of benefits received in other programs, and may impose such
cross-program payment limitations as may be consistent with the intent
of this part.
(1) FSA will review ELAP payments after the funding factor as
specified in Sec.760.208 is determined to be 100 percent. FSA will
ensure that total ELAP payments provided to a participant in a year,
together with any amount provided to the same participant for the same
loss as a result of any Federal crop insurance program, the Noninsured
Crop Disaster Assistance Program, or any other Federal disaster program,
plus the value of the commodity that was not lost, is not more than 95
percent of the value of the commodity in the absence of the loss, as
estimated by FSA.
(2) [Reserved]
(d) In applying the limitation on average adjusted gross income
(AGI) for 2008, an individual or entity is ineligible for payment under
ELAP, LFP, LIP, SURE, and TAP if the individual's or entity's average
adjusted gross income (AGI) exceeds $2.5 million for 2007, 2006, and
2005 under the provisions in part 1400 of this title in effect for 2008.
(e) For 2009 through 2011, the average AGI limitation provisions in
part 1400 of this title relating to limits on payments for persons or
legal entities, excluding joint ventures and general partnerships, with
certain levels of average adjusted gross income (AGI) will apply under
this subpart and will apply to each applicant for ELAP, LFP, LIP, SURE,
and TAP. Specifically, for 2009 through 2011, a person or legal entity
with an average adjusted gross nonfarm income, as defined in Sec.
1404.3 of this title, that exceeds $500,000 will not be eligible to
receive benefits under this part.
(f) The direct attribution provisions in part 1400 of this title
apply to ELAP, LFP, LIP, SURE, and TAP for 2009 and subsequent years.
Under those rules, any payment to any legal entity will also be
considered for payment limitation purposes to be a payment to persons or
legal entities with an interest in the legal entity or in a sub-entity.
If any such interested person or legal entity is over the payment
limitation because of direct payment or their indirect interests or a
combination thereof, then the payment to the actual payee will be
reduced commensurate with the amount of the interest of the interested
person in the payee. Likewise, by the same method, if anyone with a
direct or indirect interest in a legal entity or sub-entity of a payee
entity exceeds the AGI levels that would allow a participant to directly
receive a payment under this part, then the payment to the actual payee
will be reduced commensurately with that interest. For all purposes
under this section, unless otherwise specified in part 1400 of this
title, the AGI figure that will be relevant for a person or legal entity
will be an average AGI for the three
[[Page 75]]
taxable years that precede the most immediately preceding complete
taxable year, as determined by CCC.
[74 FR 31571, July 2, 2009, as amended at 74 FR 46673, Sept. 11, 2009]
Sec.760.109 Misrepresentation and scheme or device.
(a) A participant who is determined to have deliberately
misrepresented any fact affecting a program determination made in
accordance with this part, or otherwise used a scheme or device with the
intent to receive benefits for which the participant would not otherwise
be entitled, will not be entitled to program payments and must refund
all such payments received, plus interest as determined in accordance
with part 792 of this chapter. The participant will also be denied
program benefits for the immediately subsequent period of at least 2
crop years, and up to 5 crop years. Interest will run from the date of
the original disbursement by FSA.
(b) A participant will refund to FSA all program payments, plus
interest, as determined in accordance with part 792 of this chapter,
provided however, that in any case it will run from the date of the
original disbursement, received by such participant with respect to all
contracts or applications, as may be applicable, if the participant is
determined to have knowingly done any of the following:
(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.
Sec.760.110 Appeals.
(a) Appeals. Appeal regulations set forth at parts 11 and 780 of
this title apply to this part.
(b) Determinations not eligible for administrative review or appeal.
FSA determinations that are not in response to a specific individual
participant's application are not to be construed to be individual
program eligibility determinations or adverse decisions and are,
therefore, not subject to administrative review or appeal under parts 11
or 780 of this title. Such determinations include, but are not limited
to, application periods, deadlines, coverage periods, crop years, fees,
prices, general statutory or regulatory provisions that apply to
similarly situated participants, national average payment prices,
regions, crop definition, average yields, and payment factors
established by FSA for any of the programs for which this subpart
applies or similar matters requiring FSA determinations.
Sec.760.111 Offsets, assignments, and debt settlement.
(a) Any payment to any participant under this part will be made
without regard to questions of title under State law, and without regard
to any claim or lien against the commodity, or proceeds, in favor of the
owner or any other creditor except agencies of the U.S. Government. The
regulations governing offsets and withholdings in part 792 of this title
apply to payments made under this part.
(b) Any participant entitled to any payment may assign any
payment(s) in accordance with regulations governing the assignment of
payments in part 1404 of this title.
Sec.760.112 Records and inspections.
(a) Any participant receiving payments under any program in ELAP,
LFP, LIP, SURE, or TAP, or any other legal entity or person who provides
information for the purposes of enabling a participant to receive a
payment under ELAP, LFP, LIP, SURE, or TAP, must:
(1) Maintain any books, records, and accounts supporting the
information for 3 years following the end of the year during which the
request for payment was submitted, and
(2) Allow authorized representatives of USDA and the Government
Accountability Office, during regular business hours, to inspect,
examine, and make copies of such books or records, and to enter the farm
and to inspect and verify all applicable livestock and acreage in which
the participant has an interest for the purpose of confirming the
accuracy of information provided by or for the participant.
(b) [Reserved]
[[Page 76]]
Sec.760.113 Refunds; joint and several liability.
(a) In the event that the participant fails to comply with any term,
requirement, or condition for payment or assistance arising under ELAP,
LFP, LIP, SURE, or TAP and if any refund of a payment to FSA will
otherwise become due in connection with this part, the participant must
refund to FSA all payments made in regard to such matter, together with
interest and late-payment charges as provided for in part 792 of this
chapter provided that interest will in all cases run from the date of
the original disbursement.
(b) All persons with a financial interest in an operation or in an
application for payment will be jointly and severally liable for any
refund, including related charges, that is determined to be due FSA for
any reason under this part.
Sec.760.114 Minors.
A minor child is eligible to apply for program benefits under ELAP,
LFP, LIP, SURE, or TAP if all the eligibility requirements are met and
the provision for minor children in part 1400 of this title are met.
Sec.760.115 Deceased individuals or dissolved entities.
(a) Payments may be made for eligible losses suffered by an eligible
participant who is now a deceased individual or is a dissolved entity if
a representative, who currently has authority to enter into a contract,
on behalf of the participant, signs the application for payment.
(b) Legal documents showing proof of authority to sign for the
deceased individual or dissolved entity must be provided.
(c) If a participant is now a dissolved general partnership or joint
venture, all members of the general partnership or joint venture at the
time of dissolution or their duly authorized representatives must sign
the application for payment.
Sec.760.116 Miscellaneous.
(a) As a condition to receive benefits under ELAP, LFP, LIP, SURE,
or TAP, a participant must have been in compliance with the provisions
of parts 12 and 718 of this title, and must not otherwise be precluded
from receiving benefits under those provisions or under any law.
(b) Rules of the Commodity Credit Corporation that are cited in this
part will be applied to this subpart in the same manner as if the
programs covered in this subpart were programs funded by the Commodity
Credit Corporation.
Subpart C_Emergency Assistance for Livestock, Honeybees, and Farm-Raised
Fish Program
Source: 74 FR 46673, Sept. 11, 2009, unless otherwise noted.
Sec.760.201 Applicability.
(a) This subpart establishes the terms and conditions under which
the Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish
Program (ELAP) will be administered.
(b) Eligible producers of livestock, honeybees, and farm-raised fish
will be compensated to reduce eligible losses that occurred in the
calendar year for which the producer requests benefits. The eligible
loss must have been a direct result of eligible adverse weather or
eligible loss conditions as determined by the Deputy Administrator,
including, but not limited to, blizzards, wildfires, disease, and insect
infestation. ELAP does not cover losses that are covered under LFP, LIP,
or SURE.
Sec.760.202 Definitions.
The following definitions apply to this subpart and to the
administration of ELAP. The definitions in parts 718 and 1400 of this
title also apply, except where they conflict with the definitions in
this section.
Adult beef bull means a male beef breed bovine animal that was used
for breeding purposes that was at least 2 years old before the beginning
date of the eligible adverse weather or eligible loss condition.
Adult beef cow means a female beef breed bovine animal that had
delivered one or more offspring before the beginning date of the
eligible adverse weather or eligible loss condition. A first-
[[Page 77]]
time bred beef heifer is also considered an adult beef cow if it was
pregnant on or by the beginning date of the eligible adverse weather or
eligible loss condition.
Adult buffalo and beefalo bull means a male animal of those breeds
that was used for breeding purposes and was at least 2 years old before
the beginning date of the eligible adverse weather or eligible loss
condition.
Adult buffalo and beefalo cow means a female animal of those breeds
that had delivered one or more offspring before the beginning date of
the eligible adverse weather or eligible loss condition. A first-time
bred buffalo or beefalo heifer is also considered an adult buffalo or
beefalo cow if it was pregnant by the beginning date of the eligible
adverse weather or eligible loss condition.
Adult dairy bull means a male dairy breed bovine animal that was
used primarily for breeding dairy cows and was at least 2 years old by
the beginning date of the eligible adverse weather or eligible loss
condition.
Adult dairy cow means a female bovine dairy breed animal used for
the purpose of providing milk for human consumption that had delivered
one or more offspring by the beginning date of the eligible adverse
weather or eligible loss condition. A first-time bred dairy heifer is
also considered an adult dairy cow if it was pregnant by the beginning
date of the eligible adverse weather or eligible loss condition.
Agricultural operation means a farming operation.
Application means FSA form used to apply for either the emergency
loss assistance for livestock or emergency loss assistance for farm-
raised fish or honeybees.
Aquatic species means any species of aquatic organism grown as food
for human consumption, fish raised as feed for fish that are consumed by
humans, or ornamental fish propagated and reared in an aquatic medium by
a commercial operator on private property in water in a controlled
environment. Catfish and crawfish are both defined as aquatic species
for ELAP. However, aquatic species do not include reptiles or
amphibians.
Bait fish means small fish caught for use as bait to attract large
predatory fish. For ELAP, it also must meet the definition of aquatic
species and not be raised as food for fish; provided, however, that only
bait fish produced in a controlled environment can generate claims under
ELAP.
Buck means a male goat.
Commercial use means used in the operation of a business activity
engaged in as a means of livelihood for profit by the eligible producer.
Contract means, with respect to contracts for the handling of
livestock, a written agreement between a livestock owner and another
individual or entity setting the specific terms, conditions, and
obligations of the parties involved regarding the production of
livestock or livestock products.
Controlled environment means an environment in which everything that
can practicably be controlled by the participant with structures,
facilities, and growing media (including, but not limited to, water and
nutrients) was in fact controlled by the participant at the time of the
eligible adverse weather or eligible loss condition.
County committee or county office means the respective FSA committee
or office.
Deputy Administrator or DAFP means the Deputy Administrator for Farm
Programs, Farm Service Agency, U.S. Department of Agriculture or the
designee.
Eligible adverse weather or eligible loss condition means any
disease, adverse weather, or other loss condition as determined by the
Deputy Administrator. The eligible adverse weather or eligible loss
condition would have resulted in agricultural losses not covered by
other programs in this part for which the Deputy Administrator
determines financial assistance needs to be provided to producers. The
disease, adverse weather, or other conditions may include, but are not
limited to, blizzards, wildfires, water shortages, and other factors.
Specific eligible adverse weather and eligible loss conditions may vary
based on the type of loss. Identification of eligible adverse weather
and eligible loss conditions will include locations (National, State,
[[Page 78]]
or county-level) and start and end dates.
Equine animal means a domesticated horse, mule, or donkey.
Ewe means a female sheep.
Farming operation means a business enterprise engaged in producing
agricultural products.
Farm-raised fish means any aquatic species that is propagated and
reared in a controlled environment.
FSA means the Farm Service Agency.
Game or sport fish means fish pursued for sport by recreational
anglers; provided, however, that only game or sport fish produced in a
controlled environment can generate claims under ELAP.
Goat means a domesticated, ruminant mammal of the genus Capra,
including Angora goats. Goats are further delineated into categories by
sex (bucks and nannies) and age (kids).
Kid means a goat less than 1 year old.
Lamb means a sheep less than 1 year old.
Livestock owner, for death loss purposes, means one having legal
ownership of the livestock for which benefits are being requested on the
day such livestock died due to an eligible adverse weather or eligible
loss condition. For all other purposes of loss under ELAP, ``livestock
owner'' means one having legal ownership of the livestock for which
benefits are being requested during the 60 days prior to the beginning
date of the eligible adverse weather or eligible loss condition.
Nanny means a female goat.
Non-adult beef cattle means a beef breed bovine animal that does not
meet the definition of adult beef cow or bull. Non-adult beef cattle are
further delineated by weight categories of either less than 400 pounds
or 400 pounds or more at the time they died. For a loss other than
death, means a bovine animal less than 2 years old that that weighed 500
pounds or more on or before the beginning date of the eligible adverse
weather or eligible loss condition.
Non-adult buffalo or beefalo means an animal of those breeds that
does not meet the definition of adult buffalo or beefalo cow or bull.
Non-adult buffalo or beefalo are further delineated by weight categories
of either less than 400 pounds or 400 pounds or more at the time of
death. For a loss other than death, means an animal of those breeds that
is less than 2 years old that weighed 500 pounds or more on or before
the beginning date of the eligible adverse weather or eligible loss
condition.
Non-adult dairy cattle means a bovine dairy breed animal used for
the purpose of providing milk for human consumption that does not meet
the definition of adult dairy cow or bull. Non-adult dairy cattle are
further delineated by weight categories of either less than 400 pounds
or 400 pounds or more at the time they died. For a loss other than
death, means a bovine dairy breed animal used for the purpose of
providing milk for human consumption that is less than 2 years old that
weighed 500 pounds or more on or before the beginning date of the
eligible adverse weather or eligible loss condition.
Normal grazing period, with respect to a county, means the normal
grazing period during the calendar year with respect to each specific
type of grazing land or pastureland in the county.
Normal mortality means the numerical amount, computed by a
percentage, as established for the area by the FSA State Committee, of
expected livestock deaths, by category, that normally occur during a
calendar year for a producer.
Poultry means domesticated chickens, turkeys, ducks, and geese.
Poultry are further delineated into categories by sex, age, and purpose
of production as determined by FSA.
Ram means a male sheep.
Secretary means the Secretary of Agriculture or a designee of the
Secretary.
Sheep means a domesticated, ruminant mammal of the genus Ovis. Sheep
are further defined by sex (rams and ewes) and age (lambs) for purposes
of dividing into categories for loss calculations.
State committee, State office, county committee, or county office
means the respective FSA committee or office.
Swine means a domesticated omnivorous pig, hog, or boar. Swine for
purposes of dividing into categories for loss calculations are further
delineated
[[Page 79]]
into categories by sex and weight as determined by FSA.
United States means all 50 States of the United States, the
Commonwealth of Puerto Rico, the Virgin Islands of the United States,
Guam, and the District of Columbia.
Sec.760.203 Eligible losses, adverse weather, and other loss
conditions.
(a) An eligible loss covered under this subpart is a loss that an
eligible producer or contract grower of livestock, honeybees, or farm-
raised fish incurs due to an eligible adverse weather or eligible loss
condition, as determined by the Deputy Administrator, (including, but
not limited to, blizzards and wildfires).
(b) A loss covered under LFP, LIP, or SURE is not eligible for ELAP.
(c) To be eligible, the loss must have occurred:
(1) During the calendar year for which payment is being requested
and
(2) Due to an eligible adverse weather event or loss condition that
occurred on or after January 1, 2008, and before October 1, 2011.
(d) For a livestock feed loss to be considered an eligible loss, the
livestock feed loss must be one of the following:
(1) Loss of purchased forage or feedstuffs that was intended for use
as feed for the participant's eligible livestock that was physically
located in the county where the eligible adverse weather or eligible
loss condition occurred on the beginning date of the eligible adverse
weather or eligible loss condition. The loss must be due to an eligible
adverse weather or eligible loss condition, as determined by the Deputy
Administrator, including, but not limited to, blizzard, flood,
hurricane, tidal surge, tornado, volcanic eruption, wildfire on non-
Federal land, or lightning;
(2) Loss of mechanically harvested forage or feedstuffs intended for
use as feed for the participant's eligible livestock that was physically
located in the county where the eligible adverse weather or eligible
loss condition occurred on the beginning date of the eligible adverse
weather or eligible loss condition. The loss must have occurred after
harvest due to an eligible adverse weather or eligible loss condition,
as determined by the Deputy Administrator, including, but not limited
to, blizzard, flood, hurricane, tidal surge, tornado, volcanic eruption,
wildfire on non-Federal land, or lightning;
(3) A loss resulting from the additional cost incurred for providing
or transporting livestock feed to eligible livestock due to an eligible
adverse weather or eligible loss condition as determined by the Deputy
Administrator, including, but not limited to, costs associated with
equipment rental fees for hay lifts and snow removal. The additional
costs incurred must have been incurred for losses suffered in the county
where the eligible adverse weather or eligible loss condition occurred;
(4) A loss resulting from the additional cost of purchasing
additional livestock feed, above normal quantities, required to maintain
the eligible livestock during an eligible adverse weather or eligible
loss condition, until additional livestock feed becomes available, as
determined by the Deputy Administrator. To be eligible, the additional
feed purchased above normal quantities must be feed that is fed to
maintain livestock in the county where the eligible adverse weather or
eligible loss condition occurred.
(e) For a grazing loss to be considered eligible, the grazing loss
must have been incurred on eligible grazing lands physically located in
the county where the eligible adverse weather or eligible loss condition
occurred. The grazing loss must be due to an eligible adverse weather or
eligible loss condition, as determined by the Deputy Administrator,
including, but not limited to, flood, freeze, hurricane, hail, tidal
surge, volcanic eruption, and wildfire on non-Federal land. The grazing
loss will not be eligible if it is due to an adverse weather condition
covered by LFP as specified in subpart D, such as drought or wildfire on
federally managed land where the producer is prohibited by the Federal
agency from grazing the normally permitted livestock on the managed
rangeland due to a fire.
(f) For a loss due to livestock death to be considered eligible, the
livestock
[[Page 80]]
death must have occurred in the county where the eligible loss condition
occurred. The livestock death must be due to an eligible loss condition
determined as eligible by the Deputy Administrator and not related to an
eligible adverse weather event as specified in Subpart E for LIP.
(g) For honeybee or farm-raised fish feed losses to be considered
eligible, the honeybee or farm-raised fish feed producer must have
incurred the loss in the county where the eligible adverse weather or
eligible loss condition occurred. The honeybee or farm-raised fish feed
losses must be for feed that was intended as feed for the honeybees or
farm-raised fish that was damaged or destroyed due to an eligible
adverse weather or eligible loss condition, as determined by the Deputy
Administrator, including, but not limited to, earthquake, excessive
wind, flood, hurricane, tidal surge, tornado, volcanic eruption, and
wildfire.
(h) For honeybee colony or honeybee hive losses to be considered
eligible, the honeybee colony or honeybee hive producer must have
incurred the loss in the county where the eligible adverse weather or
eligible loss condition occurred. The honeybee colony or honeybee hive
losses must be due to an eligible adverse weather or eligible loss
condition, as determined by the Deputy Administrator, including, but not
limited to, earthquake, excessive wind, flood, hurricane, tornado,
volcanic eruption, and wildfire. To be eligible for a loss of honeybees
due to colony collapse disorder, the eligible honeybee producer must
provide acceptable documentation to support that the loss was due to
colony collapse disorder. Except for 2008 and 2009 honeybee losses,
acceptable documentation must include an acceptable colony collapse
disorder certification by an independent third party as determined by
the Deputy Administrator, plus any other documentation requested by FSA.
For 2008 and 2009 honeybee losses such an independent certification is
not required in all cases, but rather a self-certification by the
honeybee producer as determined acceptable by the Deputy Administrator
may be allowed in addition to whatever other documentation might be
requested.
(i) For a death loss for bait fish or game fish to be considered
eligible, the producer must have incurred the loss in the county where
the eligible adverse weather or eligible loss condition occurred. The
bait fish or game fish death must be due to an eligible adverse weather
or eligible loss condition as determined by the Deputy Administrator
including, but not limited to, an earthquake, flood, hurricane, tidal
surge, tornado, and volcanic eruption.
[74 FR 46673, Sept. 11, 2009, as amended at 75 FR 19188, Apr. 14, 2010;
76 FR 54075, Aug. 31, 2010]
Sec.760.204 Eligible livestock, honeybees, and farm-raised fish.
(a) To be considered eligible livestock for livestock feed losses
and grazing losses, livestock must meet all the following conditions:
(1) Be alpacas, adult or non-adult dairy cattle, adult or non-adult
beef cattle, adult or non-adult buffalo, adult or non-adult beefalo,
deer, elk, emus, equine, goats, llamas, poultry, reindeer, sheep, or
swine;
(2) Be livestock that would normally have been grazing the eligible
grazing land or pastureland during the normal grazing period for the
specific type of grazing land or pastureland for the county;
(3) Be livestock that is owned, cash-leased, purchased, under
contract for purchase, or been raised by a contract grower or an
eligible livestock producer, during the 60 days prior to the beginning
date of the eligible adverse weather or eligible loss condition;
(4) Be livestock that has been maintained for commercial use as part
of the producer's farming operation on the beginning date of the
eligible adverse weather or eligible loss condition;
(5) Be livestock that has not been produced and maintained for
reasons other than commercial use as part of a farming operation; and
(6) Be livestock that was not in a feedlot, on the beginning date of
the eligible adverse weather or eligible loss condition, as a part of
the normal business operation of the producer, as determined by the
Deputy Administrator.
(b) The eligible livestock types for feed losses and grazing losses
are:
[[Page 81]]
(1) Adult beef cows or bulls,
(2) Adult buffalo or beefalo cows or bulls,
(3) Adult dairy cows or bulls,
(4) Alpacas,
(5) Deer,
(6) Elk,
(7) Emus,
(8) Equine,
(9) Goats,
(10) Llamas,
(11) Non-adult beef cattle,
(12) Non-adult buffalo or beefalo,
(13) Non-adult dairy cattle,
(14) Poultry,
(15) Reindeer,
(16) Sheep, and
(17) Swine;
(c) Ineligible livestock for feed losses and grazing losses include,
but are not limited to:
(1) Livestock that were or would have been in a feedlot, on the
beginning date of the eligible adverse weather or eligible loss
condition, as a part of the normal business operation of the producer,
as determined by FSA;
(2) Yaks;
(3) Ostriches;
(4) All beef and dairy cattle, and buffalo and beefalo that weighed
less than 500 pounds on the beginning date of the eligible adverse
weather or eligible loss condition;
(5) Any wild free roaming livestock, including horses and deer;
(6) Livestock produced or maintained for reasons other than
commercial use as part of a farming operation, including, but not
limited to, livestock produced or maintained exclusively for
recreational purposes, such as:
(i) Roping,
(ii) Hunting,
(iii) Show,
(iv) Pleasure,
(v) Use as pets, or
(vi) Consumption by owner.
(d) For death losses for livestock owners to be eligible, the
livestock must meet all of the following conditions:
(1) Be alpacas, adult or non-adult dairy cattle, beef cattle,
beefalo, buffalo, deer, elk, emus, equine, goats, llamas, poultry,
reindeer, sheep, or swine, and meet all the conditions in paragraph (f)
of this section.
(2) Be one of the following categories of animals for which
calculations of eligibility for payments will be calculated separately
for each producer with respect to each category:
(i) Adult beef bulls;
(ii) Adult beef cows;
(iii) Adult buffalo or beefalo bulls;
(iv) Adult buffalo or beefalo cows;
(v) Adult dairy bulls;
(vi) Adult dairy cows;
(vii) Alpacas;
(viii) Chickens, broilers, pullets;
(ix) Chickens, chicks;
(x) Chickens, layers, roasters;
(xi) Deer;
(xii) Ducks;
(xiii) Ducks, ducklings;
(xiv) Elk;
(xv) Emus;
(xvi) Equine;
(xvii) Geese, goose;
(xviii) Geese, gosling;
(xix) Goats, bucks;
(xx) Goats, nannies;
(xxi) Goats, kids;
(xxii) Llamas;
(xxiii) Non-adult beef cattle;
(xxiv) Non-adult buffalo or beefalo;
(xxv) Non-adult dairy cattle;
(xxvi) Reindeer;
(xxvii) Sheep, ewes;
(xxviii) Sheep, lambs;
(xxix) Sheep, rams;
(xxx) Swine, feeder pigs under 50 pounds;
(xxxi) Swine, sows, boars, barrows, gilts 50 to 150 pounds;
(xxxii) Swine, sows, boars, barrows, gilts over 150 pounds;
(xxxiii) Turkeys, poults; and
(xxxiv) Turkeys, toms, fryers, and roasters.
(e) Under ELAP, ``contract growers'' will only be deemed to include
producers of livestock, other than feedlots, whose income is dependent
on the actual weight gain and survival of the livestock. For death
losses for contract growers to be eligible, the livestock must meet all
of the following conditions:
(1) Be poultry or swine, as defined in Sec.760.202, and meet all
the conditions in paragraph (f) of this section.
(2) Be one of the following categories of animals for which
calculations of eligibility for payments will be calculated separately
for each contract grower with respect to each category:
(i) Chickens, broilers, pullets;
[[Page 82]]
(ii) Chickens, layers, roasters;
(iii) Geese, goose;
(iv) Swine, boars, sows;
(v) Swine, feeder pigs;
(vi) Swine, lightweight barrows, gilts;
(vii) Swine, sows, boars, barrows, gilts; and
(viii) Turkeys, toms, fryers, and roasters.
(f) For livestock death losses to be considered eligible livestock
for the purpose of generating payments under this subpart, livestock
must meet all of the following conditions:
(1) They must have died:
(i) On or after the beginning date of the eligible loss condition;
and
(ii) On or after January 1, 2008, and no later than 60 calendar days
from the ending date of the eligible loss condition, but before November
30, 2011; and
(iii) As a direct result of an eligible loss condition that occurs
on or after January 1, 2008, and before October 1, 2011; and
(iv) In the calendar year for which payment is being requested; and
(2) Been maintained for commercial use as part of a farming
operation on the day the livestock died; and
(3) Before dying, not have been produced or maintained for reasons
other than commercial use as part of a farming operation, such non-
eligible uses being understood to include, but not be limited to, any
uses of wild free roaming animals or use of the animals for recreational
purposes, such as pleasure, hunting, roping, pets, or for show.
(g) For honeybee losses to be eligible, the honeybee colony must
meet the following conditions:
(1) Been maintained for the purpose of producing honey or
pollination for commercial use in a farming operation on the beginning
date of the eligible adverse weather or eligible loss condition;
(2) Been physically located in the county where the eligible adverse
weather or eligible loss condition occurred on the beginning date of the
eligible adverse weather or eligible loss condition;
(3) Been a honeybee colony in which the participant has a risk in
the honey production or pollination farming operation on the beginning
date of the eligible adverse weather or eligible loss condition;
(4) Been a honeybee colony for which the producer had an eligible
loss of a honeybee colony, honeybee hive, or honeybee feed; the feed
must have been intended as feed for honeybees.
(h) For fish to be eligible to generate payments under ELAP, the
fish must be produced in a controlled environment so to be considered
``farm raised fish'' as defined in this subpart, and the farm-raised
fish must:
(1) For feed losses:
(i) Be an aquatic species that is propagated and reared in a
controlled environment;
(ii) Be maintained and harvested for commercial use as part of a
farming operation; and
(iii) Be physically located in the county where the eligible adverse
weather or eligible loss condition occurred on the beginning date of the
eligible adverse weather or eligible loss condition.
(2) For death losses:
(i) Be bait fish or game fish that are propagated and reared in a
controlled environment;
(ii) Been maintained for commercial use as part of a farming
operation; and
(iii) Been physically located in the county where the eligible loss
adverse weather or eligible loss condition occurred on the beginning
date of the eligible adverse weather or eligible loss condition.
[74 FR 46673, Sept. 11, 2009, as amended at 76 FR 54075, Aug. 31, 2011]
Sec.760.205 Eligible producers, owners, and contract growers.
(a) To be considered an eligible livestock producer for livestock
feed losses and to receive payments, the participant must have owned,
cash-leased, purchased, entered into a contract to purchase, or been a
contract grower of eligible livestock during the 60 days prior to the
beginning date of the eligible adverse weather or eligible loss
condition and must have had a loss that is determined to be eligible as
specified in Sec.760.203(d), and the producer's eligible livestock
must have been livestock that would normally have been grazing the
eligible grazing land or pastureland during the normal
[[Page 83]]
grazing period for the specific type of grazing land or pastureland for
the county as specified in paragraph (b)(1)(i) or (ii) of this section.
(b) To be considered an eligible livestock producer for grazing
losses and to receive payments, the participant must have:
(1) Owned, cash-leased, purchased, entered into a contract to
purchase, or been a contract grower of eligible livestock during the 60
days prior to the beginning date of the eligible adverse weather or
eligible loss condition, must have had a loss that is determined to be
eligible as specified in Sec.760.203(e), and the loss must have
occurred on land that is:
(i) Native or improved pastureland with permanent vegetative cover
or
(ii) Planted to a crop planted specifically for the purpose of
providing grazing for covered livestock;
(2) Have had eligible livestock that would normally have been
grazing the eligible grazing land or pastureland during the normal
grazing period for the specific type of grazing land or pastureland for
the county as specified in paragraph (b)(1)(i) or (ii) of this section;
(3) Provided for the eligible livestock pastureland or grazing land,
including cash leased pastureland or grazing land for covered livestock
that is physically located in the county where the eligible adverse
weather or loss condition occurred during the normal grazing period for
the county.
(c) For livestock death losses to be eligible the producer must have
had a loss that is determined to be eligible as specified in Sec.
760.203(f) and in addition to other eligibility rules that may apply to
be eligible as a:
(1) Livestock owner for the payment with respect to the death of an
animal under this subpart, the applicant must have had legal ownership
of the livestock on the day the livestock died and under conditions in
which no contract grower could have been eligible for ELAP payment with
respect to the animal. Eligible types of animal categories for which
losses can be calculated for an owner are specified in Sec.760.204(d).
(2) Contract grower for ELAP payment with respect to the death of an
animal, the animal must be in one of the categories specified in Sec.
760.204(e), and the contract grower must have had:
(i) A written agreement with the owner of eligible livestock setting
the specific terms, conditions, and obligations of the parties involved
regarding the production of livestock;
(ii) Control of the eligible livestock on the day the livestock
died; and
(iii) A risk of loss in the animal.
(d) To be considered an eligible honeybee producer, a participant
must have an interest and risk in an eligible honeybee colony, as
specified in Sec.760.204(g), for the purpose of producing honey or
pollination for commercial use as part of a farming operation and must
have had a loss that is determined to be eligible as specified in Sec.
760.203(g) or (h).
(e) To be considered an eligible farm-raised fish producer for feed
loss purposes, the participant must have produced eligible farm-raised
fish, as specified in Sec.760.204(h)(1), with the intent to harvest
for commercial use as part of a farming operation and must have had a
loss that is determined to be eligible as specified in Sec.760.203(g);
(f) A producer seeking payments must not be ineligible under the
restrictions applicable to foreign persons contained in Sec.760.103(b)
and must meet all other requirements of subpart B and other applicable
USDA regulations.
Sec.760.206 Notice of loss and application process.
(a) To apply for ELAP, the participant that suffered eligible
livestock, honeybee, or farm-raised fish losses must submit, to the FSA
administrative county office that maintains the participant's farm
records for the agricultural operation, the following:
(1) A notice of loss to FSA as specified in Sec.760.207(a),
(2) A completed application as specified in Sec.760.207(b) for one
or both of the following:
(i) For livestock feed, grazing and death losses, the participant
must submit a completed Emergency Loss Assistance for Livestock
Application;
(ii) For honeybee feed, honeybee colony, honeybee hive, or farm-
raised fish feed or death losses, the participant
[[Page 84]]
must submit a completed Emergency Loss Assistance for Farm-Raised Fish
or Honeybees Application;
(3) A report of acreage;
(4) A copy of the participant's grower contract, if the participant
is a contract grower; and
(5) Other supporting documents required for FSA to determine
eligibility of the participant, livestock, and loss.
(b) For livestock, honeybee, or farm-raised fish feed losses,
participant must provide verifiable documentation of:
(1) Purchased feed intended as feed for livestock, honeybees, or
farm-raised fish that was lost, or additional feed purchased above
normal quantities to sustain livestock, honeybees, and farm-raised fish
for a short period of time until additional feed becomes available, due
to an eligible adverse weather or eligible loss condition. To be
considered acceptable documentation, the participant must provide
original feed receipts and each feed receipt must include the date of
feed purchase, name, address, and telephone number of feed vendor, type
and quantity of feed purchased, cost of feed purchased, and signature of
feed vendor if the vendor does not have a license to conduct this type
of transaction.
(2) Harvested feed intended as feed for livestock, honeybees, or
farm-raised fish that was lost due to an eligible adverse weather or
eligible loss condition. Documentation may include, but is not limited
to, weight tickets, truck scale tickets, contemporaneous diaries used to
verify that the crop was stored with the intent to feed the crop to
livestock, honeybees, or farm-raised fish, and custom harvest documents
that clearly identify the amount of feed produced from the applicable
acreage. Documentation must clearly identify the acreage from which the
feed was produced.
(c) For eligible honeybee colony and honeybee hive losses and
eligible farm-raised fish losses, the participant must also provide
documentation of inventory on the beginning date of the eligible adverse
weather or loss condition and the ending inventory. Documentation may
include, but is not limited to, any combination of the following:
(1) A report of acreage,
(2) Loan records,
(3) Private insurance documents,
(4) Property tax records,
(5) Sales and purchase receipts,
(6) State colony registration documentation, and
(7) Chattel inspections.
(d) For the loss of honeybee colonies due to colony collapse
disorder, the participant must also provide acceptable documentation or
certification that the loss of the honeybee colony was due to colony
collapse disorder. Except for 2008 and 2009 honeybee colony losses,
acceptable documentation must include an independent third party
certification determined acceptable by the Deputy Administrator, plus
such additional information and documentation as may be requested. For
2008 and 2009 honeybee colony losses a self-certification may be
accepted by FSA together with any additional information demanded by FSA
as determined appropriate by the Deputy Administrator.
(e) For livestock death losses, the participant must provide
evidence of loss, current physical location of livestock in inventory,
and physical location of claimed livestock at the time of death. The
participant must provide:
(1) Documentation listing the quantity and kind of livestock that
died as a direct result of the eligible loss condition during the
calendar year for which payment is being requested, which must include:
Purchase records, veterinarian records, bank or other loan papers,
rendering truck receipts, Federal Emergency Management Agency records,
National Guard records, written contracts, production records, Internal
Revenue Service records, property tax records, private insurance
documents, or other similar verifiable documents as determined by FSA.
(2) Adequate proof that the death of the eligible livestock occurred
as a direct result of an eligible loss condition in the calendar year
for which payment is requested.
(3) If adequate verifiable proof of death documentation is not
available, the participant must provide reliable records, in conjunction
with verifiable beginning and ending inventory records, as proof of
death. Reliable records may include: Contemporaneous
[[Page 85]]
producer records, dairy herd improvement records, brand inspection
records, vaccination records, pictures, and other similar reliable
documents, as determined by FSA.
(4) Certification of livestock deaths by third parties will be
acceptable for eligibility determination only if verifiable proof of
death records or reliable proof of death records in conjunction with
verifiable beginning and ending inventory records are not available and
both of the following conditions are met:
(i) The livestock owner or livestock contract grower, as applicable,
certifies in writing:
(A) That there is no other verifiable or reliable documentation of
death available;
(B) The number of livestock, by category as determined by FSA, was
in inventory at the time the applicable loss condition occurred;
(C) The physical location of the livestock, by category, in
inventory when the deaths occurred; and
(D) Any other details required for FSA to determine the
certification acceptable; and
(ii) The third party is an independent source who is not affiliated
with the farming operation such as a hired hand and is not a ``family
member,'' defined as a person to whom a member in the farming operation
or their spouse is related as a lineal ancestor, lineal descendant,
sibling, spouse, or otherwise by marriage, and provides their telephone
number, address, and a written statement containing specific details
about:
(A) Their knowledge of the livestock deaths;
(B) Their affiliation with the livestock owner;
(C) The accuracy of the deaths claimed by the livestock owner or
contract grower including, but not limited to, the number and kind or
type of the participant's livestock that died because of the eligible
loss condition; and
(D) Any other information required for FSA to determine the
certification acceptable.
(f) FSA will use the data furnished by the participant and the third
party to determine eligibility for program payment. Furnishing the data
is voluntary; however, without all required data program, payment will
not be approved or provided.
[74 FR 46673, Sept. 11, 2009, as amended at 75 FR 19188, Apr. 14, 2010]
Sec.760.207 Notice of loss and application period.
(a) In addition to submitting an application for payment at the
appropriate time, the participant that suffered eligible livestock,
honeybee, or farm-raised fish losses that create or could create a claim
for benefits must:
(1) For losses during calendar year 2008 and in calendar year 2009
prior to September 11, 2009, provide a notice of loss to FSA no later
than December 10, 2009;
(2) For losses on or after September 11, 2009, the participant must
provide a notice of loss to FSA within the earlier of:
(i) 30 calendar days of when the loss is apparent to the participant
or
(ii) 30 calendar days after the end of the calendar year in which
the loss occurred.
(3) The participant must submit the notice of loss required in
paragraphs (a)(1) and (a)(2) of this section to the administrative FSA
county office
(b) In addition to the notices of loss required in paragraph (a) of
this section, a participant must also submit a completed application for
payment no later than:
(1) 30 calendar days after the end of the calendar year in which the
loss occurred or
(2) December 10, 2009 for losses that occurred during 2008.
Sec.760.208 Availability of funds.
By law, ``up to'' $50 million per year for the years in question may
be approved for use by the Secretary and accordingly, within that cap,
the only funds that will be considered available to pay claims will be
that amount approved by the Secretary. Nothing in these regulations will
limit the ability of the Secretary to restrict the availability of funds
for the program as permitted by the relevant legislation. Payments will
not be made for claims arising out of a particular year until, for all
claims for that year, the time for applying for a payment has passed.
[[Page 86]]
In the event that, within the limits of the funding made available by
the Secretary within the statutory cap, approval of eligible
applications would result in expenditures in excess of the amount
available, FSA will prorate the available funds by a national factor to
reduce the total expected payments to the amount made available by the
Secretary. FSA will make payments based on the factor for the national
rate determined by FSA. FSA will prorate the payments in such manner as
it determines appropriate and reasonable. Claims that are unpaid or
prorated for a calendar year for any reason will not be carried forward
for payment under other funds for later years or otherwise, but will be
considered, as to any unpaid amount, void and nonpayable.
Sec.760.209 Livestock payment calculations.
(a) Payments for an eligible livestock producer will be calculated
based on losses for no more than 90 days during the calendar year.
Payment calculations for feed losses will be based on 60 percent of the
producer's actual cost for:
(1) Livestock feed that was purchased forage or feedstuffs intended
for use as feed for the participant's eligible livestock that was
physically damaged or destroyed due to the direct result of an eligible
adverse weather or eligible loss condition, as provided in Sec.
760.203(d)(1);
(2) Livestock feed that was mechanically harvested forage or
feedstuffs intended for use as feed for the participant's eligible
livestock that was physically damaged or destroyed after harvest due to
the direct result of an eligible adverse weather or eligible loss
condition, as provided in Sec.760.203(d)(2);
(3) The additional cost incurred for providing or transporting
livestock feed to eligible livestock due to an eligible adverse weather
or eligible loss condition, as provided in Sec.760.203(d)(3); or
(4) The additional cost of purchasing additional livestock feed
above normal, to maintain the eligible livestock during an eligible
adverse weather or eligible loss condition until additional livestock
feed becomes available, as provided in Sec.760.203(d)(4).
(b) Payments for an eligible livestock producer for grazing losses,
except for losses due to wildfires on non-Federal land, will be
calculated based on 60 percent of the lesser of:
(1) The total value of the feed cost for all covered livestock owned
by the eligible livestock producer based on the number of days grazing
was lost, not to exceed 90 days of daily feed cost for all covered
livestock, or
(2) The total value of grazing lost for all eligible livestock based
on the normal carrying capacity, as determined by the Secretary, of the
eligible grazing land of the eligible livestock producer for the number
of grazing days lost, not to exceed 90 days of lost grazing.
(c) The total value of feed cost to be used in the calculation for
paragraph (b)(1) of this section is based on the number of days grazing
was lost and equals the product obtained by multiplying:
(1) A payment quantity equal to the feed grain equivalent, as
determined in paragraph (d) of this section;
(2) A payment rate equal to the corn price per pound, as determined
in paragraph (e) of this section;
(3) The number of all covered livestock owned by the eligible
producer converted to an animal unit basis;
(4) The number of days grazing was lost, not to exceed 90 calendar
days during the normal grazing period for the specific type of grazing
land; and
(5) The producer's ownership share in the livestock.
(d) The feed grain equivalent to be used in the calculation for
paragraph (c)(1) of this section equals, in the case of:
(1) An adult beef cow, 15.7 pounds of corn per day or
(2) Any other type or weight of livestock, an amount determined by
the Secretary that represents the average number of pounds of corn per
day necessary to feed that specific type of livestock.
(e) The corn price per pound to be used in the calculation for
paragraph (c)(2) of this section equals the quotient obtained by
dividing:
(1) The higher of:
[[Page 87]]
(i) The national average corn price per bushel of corn for the 12-
month period immediately preceding March 1 of the calendar year for
which payments are calculated; or
(ii) The national average corn price per bushel of corn for the 24-
month period immediately preceding March 1 of the calendar year for
which payments are calculated; by
(2) 56.
(f) The total value of grazing lost to be used in the calculation
for paragraph (b)(2) of this section equals the product obtained by
multiplying:
(1) A payment quantity equal to the feed grain equivalent of 15.7
pounds of corn per day;
(2) A payment rate equal to the corn price per pound, as determined
in paragraph (e) of this section;
(3) The number of animal units the eligible livestock producer's
grazing land or pastureland can sustain during the normal grazing period
in the county for the specific type of grazing land or pastureland, in
the absence of an eligible adverse weather or eligible loss condition,
determined by dividing the:
(i) Number of eligible grazing land or pastureland acres of the
specific type of grazing land or pastureland by
(ii) The normal carrying capacity of the specific type of eligible
grazing land or pastureland; and
(4) The number of days grazing was lost, not to exceed 90 calendar
days during the normal grazing period for the specific type of grazing
land.
(g) Payments for an eligible livestock producer for grazing losses
due to a wildfire on non-Federal land will be calculated by multiplying:
(1) The result of dividing:
(i) The number of acres of grazing land or pastureland acres
affected by the fire by
(ii) The normal carrying capacity of the specific type of eligible
grazing land or pastureland; times
(2) The daily value of grazing as calculated by FSA under this
section; times
(3) The number of days grazing was lost due to fire, not to exceed
180 calendar days; times
(4) 50 percent.
(h) Payments for an eligible livestock producer for eligible
livestock death losses due to an eligible loss condition will be based
on the following:
(1) Payments will be calculated by multiplying:
(i) The national payment rate for each livestock category times
(ii) The number of eligible livestock that died in each category as
a result of an eligible loss condition in excess of normal mortality, as
determined in paragraph (d)(2) of this section;
(2) Normal mortality for each livestock category as determined by
FSA on a statewide basis using local data sources including, but not
limited to, State livestock organizations and the Cooperative Extension
Service for the State.
(3) National payment rates to be used in the calculation for
paragraph (b)(1) of this section for eligible livestock owners and
eligible livestock contract growers are:
(i) A national payment rate for eligible livestock owners that is
based on 75 percent of the average fair market value of the applicable
livestock as computed using nationwide prices for the previous calendar
year unless some other price is approved by the Deputy Administrator.
(ii) A national payment rate for eligible livestock contract growers
that is based on 75 percent of the relevant average income loss
sustained by the contract grower, with respect to the dead livestock.
(i) Payments calculated in this section are subject to the
adjustments and limits provided for in this part.
Sec.760.210 Honeybee payment calculations.
(a) An eligible honeybee producer may receive payments for honeybee
feed losses due to an eligible adverse weather or loss condition, as
provided in Sec.760.203(g), based on 60 percent of the producer's
actual cost for honeybee feed that was:
(1) Damaged or destroyed due to an eligible adverse weather or
eligible loss condition and
(2) Intended as feed for an eligible honeybee colony, as provided in
Sec.760.204(g);
(b) An eligible honeybee producer may receive payments for honeybee
colony losses due to an eligible adverse
[[Page 88]]
weather or eligible loss condition, as provided in Sec.760.203(h),
based on 60 percent of the average fair market value for the number of
honeybee colonies that were damaged or destroyed due to an eligible
adverse weather or eligible loss condition, as computed using nationwide
prices unless some other price data is approved for use by the Deputy
Administrator, for losses in excess of normal honeybee mortality, as
determined by the Deputy Administrator.
(c) An eligible honeybee producer may receive payments for honeybee
hive losses due to an eligible adverse weather or eligible loss
condition, as provided in Sec.760.203(h), based on 60 percent of the
average fair market value for the number of honeybee hives that were
damaged or destroyed due to an eligible adverse weather or eligible loss
condition, as computed using nationwide prices unless some other price
data is approved for use by the Deputy Administrator.
(d) Payments calculated in this section are subject to the
adjustments and limits provided for in this part.
[74 FR 46673, Sept. 11, 2009, as amended at 75 FR 19188, Apr. 14, 2010]
Sec.760.211 Farm-raised fish payment calculations.
(a) An eligible farm-raised fish producer may receive payments for
fish feed losses due to an eligible adverse weather or eligible loss
condition, as provided in Sec.760.203(g), based on 60 percent of the
producer's actual replacement cost for the fish feed that was:
(1) Damaged or destroyed due to an eligible adverse weather or
eligible loss condition and
(2) Intended as feed for the eligible farm-raised fish, as provided
in Sec.760.204(h)(1).
(b) An eligible producer of farm-raised game or sport fish may
receive payments for death losses of farm-raised fish due to an eligible
adverse weather or eligible loss condition, as provided in Sec.
760.203(i), based on 60 percent of the average fair market value of the
game fish or sport fish that died as a direct result of an eligible
adverse weather or eligible loss condition, as computed using nationwide
prices unless some other price data is approved for use by the Deputy
Administrator.
(c) Payments calculated in this section or elsewhere with respect to
ELAP are subject to the adjustments and limits provided for in this part
and are also subject to the payment limitations and average adjusted
gross income limitations that are contained in subpart B.
[74 FR 46673, Sept. 11, 2009, as amended at 75 FR 19189, Apr. 14, 2010]
Subpart D_Livestock Forage Disaster Program
Source: 74 FR 46680, Sept. 11, 2009, unless otherwise noted.
Sec.760.301 Applicability.
(a) This subpart establishes the terms and conditions under which
the Livestock Forage Disaster Program (LFP) will be administered.
(b) Eligible livestock producers will be compensated for eligible
grazing losses for covered livestock that occur due to a qualifying
drought or fire that occurs:
(1) On or after January 1, 2008, and before October 1, 2011, and
(2) In the calendar year for which benefits are being requested.
Sec.760.302 Definitions.
The following definitions apply to this subpart and to the
administration of LFP. The definitions in parts 718 and 1400 of this
title also apply, except where they conflict with the definitions in
this section.
Adult beef bull means a male beef breed bovine animal that was at
least 2 years old and used for breeding purposes on or before the
beginning date of a qualifying drought or fire.
Adult beef cow means a female beef breed bovine animal that had
delivered one or more offspring. A first-time bred beef heifer is also
considered an adult beef cow if it was pregnant on or before the
beginning date of a qualifying drought or fire.
Adult buffalo and beefalo bull means a male animal of those breeds
that was at least 2 years old and used for breeding purposes on or
before the beginning date of a qualifying drought or fire.
Adult buffalo and beefalo cow means a female animal of those breeds
that had
[[Page 89]]
delivered one or more offspring. A first-time bred buffalo or beefalo
heifer is also considered an adult buffalo or beefalo cow if it was
pregnant on or before the beginning date of a qualifying drought or
fire.
Adult dairy bull means a male dairy breed bovine animal at least 2
years old used primarily for breeding dairy cows on or before the
beginning date of a qualifying drought or fire.
Adult dairy cow means a female dairy breed bovine animal used for
the purpose of providing milk for human consumption that had delivered
one or more offspring. A first-time bred dairy heifer is also considered
an adult dairy cow if it was pregnant on or before the beginning date of
a qualifying drought or fire.
Agricultural operation means a farming operation.
Application means the ``Livestock Forage Disaster Program'' form.
Commercial use means used in the operation of a business activity
engaged in as a means of livelihood for profit by the eligible livestock
producer.
Contract means, with respect to contracts for the handling of
livestock, a written agreement between a livestock owner and another
individual or entity setting the specific terms, conditions, and
obligations of the parties involved regarding the production of
livestock or livestock products.
Covered livestock means livestock of an eligible livestock producer
that, during the 60 days prior to the beginning date of a qualifying
drought or fire, the eligible livestock producer owned, leased,
purchased, entered into a contract to purchase, was a contract grower
of, or sold or otherwise disposed of due to a qualifying drought during
the current production year. It includes livestock that the producer
otherwise disposed of due to drought in one or both of the two
production years immediately preceding the current production year as
determined by the Secretary. Notwithstanding the foregoing portions of
this definition, covered livestock for ``contract growers'' will not
include livestock in feedlots. ``Contract growers'' under LFP will only
include producers of livestock not in feedlots whose income is dependent
on the actual weight gain and survival of the livestock.
Equine animal means a domesticated horse, mule, or donkey.
Farming operation means a business enterprise engaged in producing
agricultural products.
Federal Agency means, with respect to the control of grazing land,
an agency of the Federal government that manages rangeland on which
livestock is generally permitted to graze. For the purposes of this
section, it includes, but is not limited to, the U.S. Department of the
Interior (DOI) Bureau of Indian Affairs (BIA), DOI Bureau of Land
Management (BLM), and USDA Forest Service (FS).
Goat means a domesticated, ruminant mammal of the genus Capra,
including Angora goats.
Non-adult beef cattle means a beef breed bovine animal that weighed
500 pounds or more on or before the beginning date of a qualifying
drought or fire but that does not meet the definition of adult beef cow
or bull.
Non-adult buffalo or beefalo means an animal of those breeds that
weighed 500 pounds or more on or before the beginning date of a
qualifying drought or fire, but does not meet the definition of adult
buffalo or beefalo cow or bull.
Non-adult dairy cattle means a bovine animal, of a breed used for
the purpose of providing milk for human consumption, that weighed 500
pounds or more on or before the beginning date of a qualifying drought
or fire, but that does not meet the definition of adult dairy cow or
bull.
Normal carrying capacity means, with respect to each type of grazing
land or pastureland in a county, the normal carrying capacity that would
be expected from the grazing land or pastureland for livestock during
the normal grazing period in the county, in the absence of a drought or
fire that diminishes the production of the grazing land or pastureland.
Normal grazing period means, with respect to a county, the normal
grazing period during the calendar year with respect to each specific
type of grazing land or pastureland in the county served by the
applicable county committee.
[[Page 90]]
Owner means one who had legal ownership of the livestock for which
benefits are being requested during the 60 days prior to the beginning
of a qualifying drought or fire.
Poultry means a domesticated chicken, turkey, duck, or goose.
Poultry are further delineated by sex, age, and purpose of production,
as determined by FSA.
Sheep means a domesticated, ruminant mammal of the genus Ovis.
Swine means a domesticated omnivorous pig, hog, or boar. Swine are
further delineated by sex and weight, as determined by FSA.
U.S. Drought Monitor is a system for classifying drought severity
according to a range of abnormally dry to exceptional drought. It is a
collaborative effort between Federal and academic partners, produced on
a weekly basis, to synthesize multiple indices, outlooks, and drought
impacts on a map and in narrative form. This synthesis of indices is
reported by the National Drought Mitigation Center at http://
www.drought.unl.edu/dm/monitor.html.
Sec.760.303 Eligible livestock producer.
(a) To be considered an eligible livestock producer, the eligible
producer on a farm must:
(1) During the 60 days prior to the beginning date of a qualifying
drought or fire, own, cash or share lease, or be a contract grower of
covered livestock or
(2) Provide pastureland or grazing land for covered livestock,
including cash-leased pastureland or grazing land, that is:
(i) Physically located in a county affected by a qualifying drought
during the normal grazing period for the county or
(ii) Rangeland managed by a Federal agency for which the otherwise
eligible livestock producer is prohibited by the Federal agency from
grazing the normal permitted livestock due to a qualifying fire.
(b) The eligible livestock producer must have certified that the
livestock producer has suffered a grazing loss due to a qualifying
drought or fire to be eligible for LFP payments.
(c) An eligible livestock producer does not include any owner, cash
or share lessee, or contract grower of livestock that rents or leases
pastureland or grazing land owned by another person on a rate-of-gain
basis. (That is, where the lease or rental agreement calls for payment
based in whole or in part on the amount of weight gained by the animals
that use the pastureland or grazing land.)
(d) A producer seeking payment must not be ineligible for payments
under the restrictions applicable to foreign persons contained in Sec.
760.103(b) and must meet all other requirements of subpart B and other
applicable USDA regulations.
(e) If a contract grower is an eligible livestock producer for
covered livestock, the owner of that livestock is not eligible for
payment.
Sec.760.304 Covered livestock.
(a) To be considered covered livestock for LFP payments, livestock
must meet all the following conditions:
(1) Be adult or non-adult beef cattle, adult or non-adult beefalo,
adult or non-adult buffalo, adult or non-adult dairy cattle, alpacas,
deer, elk, emus, equine, goats, llamas, poultry, reindeer, sheep, or
swine;
(2) Be livestock that would normally have been grazing the eligible
grazing land or pastureland in the county:
(i) During the normal grazing period for the specific type of
grazing land or pastureland for the county or
(ii) When the Federal agency prohibited the eligible livestock
producer from using the managed rangeland for grazing due to a fire;
(3) Be livestock that the eligible livestock producer:
(i) During the 60 days prior to the beginning date of a qualifying
drought or fire:
(A) Owned,
(B) Leased,
(C) Purchased,
(D) Entered into a contract to purchase, or
(E) Was a contract grower of; or
(ii) Sold or otherwise disposed of due to qualifying drought during:
(A) The current production year or
(B) 1 or both of the 2 production years immediately preceding the
current production year;
(4) Been maintained for commercial use as part of the producer's
farming
[[Page 91]]
operation on the beginning date of the qualifying drought or fire;
(5) Not have been produced and maintained for reasons other than
commercial use as part of a farming operation. Such excluded uses
include, but are not limited to, any uses of wild free roaming animals
or use of the animals for recreational purposes, such as pleasure,
roping, hunting, pets, or for show; and
(6) Not have been livestock that were or would have been in a
feedlot, on the beginning date of the qualifying drought or fire, as a
part of the normal business operation of the eligible livestock
producer, as determined by the Secretary.
(b) The covered livestock categories are:
(1) Adult beef cows or bulls,
(2) Adult buffalo or beefalo cows or bulls,
(3) Adult dairy cows or bulls,
(4) Alpacas,
(5) Deer,
(6) Elk,
(7) Emu,
(8) Equine,
(9) Goats,
(10) Llamas,
(11) Non-adult beef cattle,
(12) Non-adult buffalo or beefalo,
(13) Non-adult dairy cattle,
(14) Poultry,
(15) Reindeer,
(16) Sheep, and
(17) Swine.
(c) Livestock that are not covered include, but are not limited to:
(1) Livestock that were or would have been in a feedlot, on the
beginning date of the qualifying drought or fire, as a part of the
normal business operation of the eligible livestock producer, as
determined by the Secretary;
(2) Yaks;
(3) Ostriches;
(4) All beef and dairy cattle, and buffalo and beefalo that weighed
less than 500 pounds on the beginning date of the qualifying drought or
fire;
(5) Any wild free roaming livestock, including horses and deer; and
(6) Livestock produced or maintained for reasons other than
commercial use as part of a farming operation, including, but not
limited to, livestock produced or maintained for recreational purposes,
such as:
(i) Roping,
(ii) Hunting,
(iii) Show,
(iv) Pleasure,
(v) Use as pets, or
(vi) Consumption by owner.
[74 FR 46680, Sept. 11, 2009, as amended at 75 FR 19189, Apr. 14, 2010]
Sec.760.305 Eligible grazing losses.
(a) A grazing loss due to drought is eligible for LFP only if the
grazing loss for the covered livestock occurs on land that:
(1) Is native or improved pastureland with permanent vegetative
cover or
(2) Is planted to a crop planted specifically for the purpose of
providing grazing for covered livestock; and
(3) Is grazing land or pastureland that is owned or leased by the
eligible livestock producer that is physically located in a county that
is, during the normal grazing period for the specific type of grazing
land or pastureland for the county, rated by the U.S. Drought Monitor as
having a:
(i) D2 (severe drought) intensity in any area of the county for at
least 8 consecutive weeks during the normal grazing period for the
specific type of grazing land or pastureland for the county, as
determined by the Secretary, or
(ii) D3 (extreme drought) or D4 (exceptional drought) intensity in
any area of the county at any time during the normal grazing period for
the specific type of grazing land or pastureland for the county, as
determined by the Secretary. (As specified elsewhere in this subpart,
the amount of potential payment eligibility will be higher than under
(a)(3)(i) of this section where the D4 trigger applies or where the D3
condition as determined by the Secretary lasts at least 4 weeks during
the normal grazing period for the specific type of grazing land or
pastureland for the county.)
(b) A grazing loss is not eligible for LFP if the grazing loss due
to drought on land used for haying or grazing under the Conservation
Reserve Program established under subchapter B of chapter 1 of subtitle
D of title XII of the Food Security Act of 1985 (16 U.S.C. 3831-3835a).
(c) A fire qualifies for LFP only if:
[[Page 92]]
(1) The grazing loss occurs on rangeland that is managed by a
Federal agency and
(2) The eligible livestock producer is prohibited by the Federal
agency from grazing the normal permitted livestock on the managed
rangeland due to a fire.
(d) An eligible livestock producer may be eligible for LFP payments
only on those grazing lands incurring losses for which the livestock
producer:
(1) Meets the risk management purchase requirements specified in
Sec.760.104; or
(2) Does not meet the risk management purchase requirements
specified in Sec.760.104 because the risk management purchase
requirement is waived according to Sec. Sec.760.105, 760.106, or
760.107.
Sec.760.306 Application for payment.
(a) To apply for LFP, the participant that suffered eligible grazing
losses:
(1) During 2008, must submit a completed application for payment and
required supporting documentation to the administrative FSA county
office no later than December 10, 2009 or
(2) During 2009 and later years, must submit a completed application
for payment and required supporting documentation to the administrative
FSA county office no later than 30 calendar days after the end of the
calendar year in which the grazing loss occurred.
(b) A participant must also provide a copy of the grower contract,
if a contract grower, and other supporting documents required for
determining eligibility as an applicant at the time the participant
submits the completed application for payment. Supporting documents must
include:
(1) Evidence of loss,
(2) Current physical location of livestock in inventory,
(3) Evidence of meeting risk management purchase requirements as
specified in subpart B,
(4) Evidence that grazing land or pastureland is owned or leased,
(5) A report of acreage according to part 718 of this chapter for
the grazing lands incurring losses for which assistance is being
requested under this subpart;
(6) Adequate proof, as determined by FSA that the grazing loss:
(i) Was for the covered livestock;
(ii) If the loss of grazing occurred as the result of a fire that
the:
(A) Loss was due to a fire and
(B) Participant was prohibited by the Federal agency from grazing
the normal permitted livestock on the managed rangeland due to a fire;
(iii) Occurred on or after January 1, 2008, and before October 1,
2011; and
(iv) Occurred in the calendar year for which payments are being
requested;
(7) Adequate proof, absent an appropriate waiver (if there is a
waiver, it itself must be documented by the producer), as determined by
FSA, that the participant had obtained, for the grazing land incurring
the losses for which assistance is being requested, one or both of the
following:
(i) A policy or plan of insurance under the Federal Crop Insurance
Act (7 U.S.C. 1501-1524); or
(ii) Filed the required paperwork, and paid the administrative fee
by the applicable State filing deadline, for the noninsured crop
disaster assistance program;
(8) Any other supporting documentation as determined by FSA to be
necessary to make a determination of eligibility of the participant.
Supporting documents include, but are not limited to: Verifiable
purchase and sales records; grower contracts; veterinarian records; bank
or other loan papers; rendering truck receipts; Federal Emergency
Management Records; National Guard records; written contracts;
production records; private insurance documents; sales records; and
similar documents determined acceptable to FSA.
(c) Data furnished by the participant will be used to determine
eligibility for program benefits. Furnishing the data is voluntary;
however, without all required data, program benefits will not be
approved or provided.
Sec.760.307 Payment calculation.
(a) An eligible livestock producer will be eligible to receive
payments for grazing losses for qualifying drought as specified in Sec.
760.305(a) equal to one, two, or three times the monthly payment rate
specified in paragraphs (e) or (f) of this section. Total LFP payments
[[Page 93]]
to an eligible livestock producer in a calendar year for grazing losses
due to qualifying drought will not exceed three monthly payments for the
same livestock. Payments calculated in this section or elsewhere with
respect to LFP are subject to the adjustments and limits provided for in
this part and are also subject to the payment limitations and average
adjusted gross income provisions that are contained in subpart B.
Payment may only be made to the extent that eligibility is specifically
provided for in this subpart. Hence, with respect to drought, payments
will be made only as a ``one month'' payment, a ``two month'' payment,
or a ``three month'' payment based on the provisions of paragraphs (b),
(c), and (d) of this section.
(b) To be eligible to receive a one month payment, that is a payment
equal to the monthly feed cost as determined under paragraph (g) of this
section, the eligible livestock producer must own or lease grazing land
or pastureland that is physically located in a county that is rated by
the U.S. Drought Monitor as having at least a D2 severe drought
(intensity) in any area of the county for at least 8 consecutive weeks
during the normal grazing period for the specific type of grazing land
or pastureland in the county.
(c) To be eligible to receive a two month payment, that is a payment
equal to twice the monthly feed cost as determined under paragraph (g)
of this section, the eligible livestock producer must own or lease
grazing land or pastureland that is physically located in a county that
is rated by the U.S. Drought Monitor as having at least a D3 (extreme
drought) intensity in any area of the county at any time during the
normal grazing period for the specific type of grazing land or
pastureland for the county.
(d) To be eligible to receive a three month payment, that is a
payment equal to three times the monthly feed cost as determined under
paragraph (g) of this section, the eligible livestock producer must own
or lease grazing land or pastureland that is physically located in a
county that is rated by the U.S. Drought Monitor as having at least a D3
(extreme drought) intensity in any area of the county for at least 4
weeks during the normal grazing period for the specific type of grazing
land or pastureland for the county, or is rated as having a D4
(exceptional drought) intensity in any area of the county at any time
during the normal grazing period for the specific type of grazing land
or pastureland for the county.
(e) The monthly payment rate for LFP for grazing losses due to a
qualifying drought, except as provided in paragraph (f) of this section,
will be equal to 60 percent of the lesser of:
(1) The monthly feed cost for all covered livestock owned or leased
by the eligible livestock producer, as determined in paragraph (g) of
this section or
(2) The monthly feed cost calculated by using the normal carrying
capacity of the eligible grazing land of the eligible livestock
producer, as determined in paragraph (j) of this section.
(f) In the case of an eligible livestock producer that sold or
otherwise disposed of covered livestock due to a qualifying drought in 1
or both of the 2 production years immediately preceding the current
production year, the payment rate is 80 percent of the monthly payment
rate calculated in paragraph (e) of this section.
(g) The monthly feed cost for covered livestock equals the product
obtained by multiplying:
(1) 30 days;
(2) A payment quantity equal to the amount referred to in paragraph
(h) of this section as the ``feed grain equivalent'', as determined
under paragraph (h) of this section; and
(3) A payment rate equal to the corn price per pound, as determined
in paragraph (i) of this section.
(h) The feed grain equivalent equals, in the case of:
(1) An adult beef cow, 15.7 pounds of corn per day or
(2) In the case of any other type or weight of covered livestock, an
amount determined by the Secretary that represents the average number of
pounds of corn per day necessary to feed that specific type of
livestock.
(i) The corn price per pound equals the quotient obtained by
dividing:
(1) The higher of:
[[Page 94]]
(i) The national average corn price per bushel for the 12-month
period immediately preceding March 1 of the calendar year for which LFP
payment is calculated or
(ii) The national average corn price per bushel for the 24-month
period immediately preceding March 1 of the calendar year for which LFP
payment is calculated
(2) By 56.
(j) The monthly feed cost using the normal carrying capacity of the
eligible grazing land equals the product obtained by multiplying:
(1) 30 days;
(2) A payment quantity equal to the feed grain equivalent of 15.7
pounds of corn per day;
(3) A payment rate equal to the corn price per pound, as determined
in paragraph (i) of this section; and
(4) The number of animal units the eligible livestock producer's
grazing land or pastureland can sustain during the normal grazing period
in the county for the specific type of grazing land or pastureland, in
the absence of a drought or fire, determined by dividing the:
(i) Number of eligible grazing land or pastureland acres of the
specific type of grazing land or pastureland by
(ii) The normal carrying capacity of the specific type of eligible
grazing land or pastureland as determined under this subpart.
(k) An eligible livestock producer will be eligible to receive
payments for grazing losses due to a fire as specified in Sec.
760.305(c):
(1) For the period, subject to paragraph (l)(2) of this section:
(i) Beginning on the date on which the Federal Agency prohibits the
eligible livestock producer from using the managed rangeland for grazing
and
(ii) Ending on the earlier of the last day of the Federal lease of
the eligible livestock producer or the day that would make the period a
180 day period and
(2) For grazing losses that occur on not more than 180 days per
calendar year.
(3) For 50 percent of the monthly feed cost, as determined under
Sec.760.308(g), pro-rated to a daily rate, for the total number of
livestock covered by the Federal lease of the eligible livestock
producer.
Subpart E_Livestock Indemnity Program
Source: 74 FR 31575, July 2, 2009, unless otherwise noted.
Sec.760.401 Applicability.
(a) This subpart establishes the terms and conditions under which
the Livestock Indemnity Program (LIP) will be administered under Titles
XII and XV of the 2008 Farm Bill (Pub. L. 110-246).
(b) Eligible livestock owners and contract growers will be
compensated in accordance with Sec.760.406 for eligible livestock
deaths in excess of normal mortality that occurred in the calendar year
for which benefits are being requested as a direct result of an eligible
adverse weather event. An ``eligible adverse weather event'' is one, as
determined by the Secretary, occurring in the program year that could
and did, even when normal preventative or corrective measures were taken
and good farming practices were followed, directly result in the death
of livestock. Because feed can be purchased or otherwise obtained in the
event of a drought, drought is not an eligible adverse weather event
except when anthrax, resulting from drought, causes the death of
eligible livestock.
Sec.760.402 Definitions.
The following definitions apply to this subpart. The definitions in
parts 718 and 1400 of this title also apply, except where they conflict
with the definitions in this section.
Adult beef bull means a male beef breed bovine animal that was at
least 2 years old and used for breeding purposes before it died.
Adult beef cow means a female beef breed bovine animal that had
delivered one or more offspring before dying. A first-time bred beef
heifer is also considered an adult beef cow if it was pregnant at the
time it died.
Adult buffalo and beefalo bull means a male animal of those breeds
that was at least 2 years old and used for breeding purposes before it
died.
[[Page 95]]
Adult buffalo and beefalo cow means a female animal of those breeds
that had delivered one or more offspring before dying. A first-time bred
buffalo or beefalo heifer is also considered an adult buffalo or beefalo
cow if it was pregnant at the time it died.
Adult dairy bull means a male dairy breed bovine animal at least 2
years old used primarily for breeding dairy cows before it died.
Adult dairy cow means a female bovine dairy breed animal used for
the purpose of providing milk for human consumption that had delivered
one or more offspring before dying. A first-time bred dairy heifer is
also considered an adult dairy cow if it was pregnant at the time it
died.
Adverse weather means damaging weather events, including, but not
limited to, hurricanes, floods, blizzards, disease, wildfires, extreme
heat, and extreme cold.
Agricultural operation means a farming operation.
Application means the ``Livestock Indemnity Program'' form.
Buck means a male goat.
Commercial use means used in the operation of a business activity
engaged in as a means of livelihood for profit by the eligible producer.
Contract means, with respect to contracts for the handling of
livestock, a written agreement between a livestock owner and another
individual or entity setting the specific terms, conditions, and
obligations of the parties involved regarding the production of
livestock or livestock products.
Deputy Administrator or DAFP means the Deputy Administrator for Farm
Programs, Farm Service Agency, U.S. Department of Agriculture or the
designee.
Equine animal means a domesticated horse, mule, or donkey.
Ewe means a female sheep.
Farming operation means a business enterprise engaged in producing
agricultural products.
FSA means the Farm Service Agency.
Goat means a domesticated, ruminant mammal of the genus Capra,
including Angora goats. Goats are further defined by sex (bucks and
nannies) and age (kids).
Kid means a goat less than 1 year old.
Lamb means a sheep less than 1 year old.
Livestock owner means one having legal ownership of the livestock
for which benefits are being requested on the day such livestock died.
Nanny means a female goat.
Non-adult beef cattle means a beef breed bovine animal that does not
meet the definition of adult beef cow or bull. Non-adult beef cattle are
further delineated by weight categories of either less than 400 pounds
or 400 pounds or more at the time they died.
Non-adult buffalo or beefalo means an animal of those breeds that
does not meet the definition of adult buffalo or beefalo cow or bull.
Non-adult buffalo or beefalo are further delineated by weight categories
of either less than 400 pounds or 400 pounds or more at the time of
death.
Non-adult dairy cattle means a dairy breed bovine animal, of a breed
used for the purpose of providing milk for human consumption, that does
not meet the definition of adult dairy cow or bull. Non-adult dairy
cattle are further delineated by weight categories of either less than
400 pounds or 400 pounds or more at the time they died.
Normal mortality means the numerical amount, computed by a
percentage, as established for the area by the FSA State Committee, of
expected livestock deaths, by category, that normally occur during a
calendar year for a producer.
Poultry means domesticated chickens, turkeys, ducks, and geese.
Poultry are further delineated by sex, age, and purpose of production as
determined by FSA.
Ram means a male sheep.
Secretary means the Secretary of Agriculture or a designee of the
Secretary.
Sheep means a domesticated, ruminant mammal of the genus Ovis. Sheep
are further defined by sex (rams and ewes) and age (lambs) for purposes
of dividing into categories for loss calculations.
State committee, State office, county committee, or county office
means the respective FSA committee or office.
Swine means a domesticated omnivorous pig, hog, or boar. Swine for
purposes of dividing into categories for
[[Page 96]]
loss calculations are further delineated by sex and weight as determined
by FSA.
United States means all fifty States of the United States, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and the District
of Columbia.
Sec.760.403 Eligible owners and contract growers.
(a) In addition to other eligibility rules that may apply, to be
eligible as a:
(1) Livestock owner for benefits with respect to the death of an
animal under this subpart, the applicant must have had legal ownership
of the eligible livestock on the day the livestock died and under
conditions in which no contract grower could have been eligible for
benefits with respect to the animal. Eligible types of animal categories
for which losses can be calculated for an owner are specified in Sec.
760.404(a).
(2) Contract grower for benefits with respect to the death of an
animal, the animal must be in one of the categories specified on Sec.
760.404(b), and the contract grower must have had
(i) A written agreement with the owner of eligible livestock setting
the specific terms, conditions, and obligations of the parties involved
regarding the production of livestock;
(ii) Control of the eligible livestock on the day the livestock
died; and
(iii) A risk of loss in the animal.
(b) A producer seeking payment must not be ineligible under the
restrictions applicable to foreign persons contained in Sec.760.103(b)
and must meet all other requirements of subpart B and other applicable
USDA regulations.
Sec.760.404 Eligible livestock.
(a) To be considered eligible livestock for livestock owners, the
kind of livestock must be alpacas, adult or non-adult dairy cattle, beef
cattle, buffalo, beefalo, elk, emus, equine, llamas, sheep, goats,
swine, poultry, deer, or reindeer and meet all the conditions in
paragraph (c) of this section.
(b) To be considered eligible livestock for contract growers, the
kind of livestock must be poultry or swine as defined in Sec.760.402
and meet all the conditions in paragraph (c) of this section.
(c) To be considered eligible livestock for the purpose of
generating payments under this subpart, livestock must meet all of the
following conditions:
(1) Died as a direct result of an eligible adverse weather event
that occurred on or after January 1, 2008, and before October 1, 2011;
(2) Died no later than 60 calendar days from the ending date of the
applicable adverse weather event, but before November 30, 2011;
(3) Died in the calendar year for which benefits are being
requested;
(4) Been maintained for commercial use as part of a farming
operation on the day they died; and
(5) Before dying, not have been produced or maintained for reasons
other than commercial use as part of a farming operation, such non-
eligible uses being understood to include, but not be limited to, any
uses of wild, free roaming animals or use of the animals for
recreational purposes, such as pleasure, hunting, roping, pets, or for
show.
(d) The following categories of animals owned by a livestock owner
are eligible livestock and calculations of eligibility for payments will
be calculated separately for each producer with respect to each
category:
(1) Adult beef bulls;
(2) Adult beef cows;
(3) Adult buffalo or beefalo bulls;
(4) Adult buffalo or beefalo cows;
(5) Adult dairy bulls;
(6) Adult dairy cows;
(7) Alpacas;
(8) Chickens, broilers, pullets;
(9) Chickens, chicks;
(10) Chickens, layers, roasters;
(11) Deer;
(12) Ducks;
(13) Ducks, ducklings;
(14) Elk;
(15) Emus;
(16) Equine;
(17) Geese, goose;
(18) Geese, gosling;
(19) Goats, bucks;
(20) Goats, nannies;
(21) Goats, kids;
(22) Llamas;
(23) Non-adult beef cattle;
(24) Non-adult buffalo or beefalo;
(25) Non-adult dairy cattle;
(26) Reindeer;
(27) Sheep, ewes;
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(28) Sheep, lambs;
(29) Sheep, rams;
(30) Swine, feeder pigs under 50 pounds;
(31) Swine, sows, boars, barrows, gilts 50 to 150 pounds;
(32) Swine, sows, boars, barrows, gilts over 150 pounds;
(33) Turkeys, poults; and
(34) Turkeys, toms, fryers, and roasters.
(e) The following categories of animals are eligible livestock for
contract growers and calculations of eligibility for payments will be
calculated separately for each producer with respect to each category:
(1) Chickens, broilers, pullets;
(2) Chickens, layers, roasters;
(3) Geese, goose;
(4) Swine, boars, sows;
(5) Swine, feeder pigs;
(6) Swine, lightweight barrows, gilts;
(7) Swine, sows, boars, barrows, gilts; and
(8) Turkeys, toms, fryers, and roasters.
[74 FR 31575, July 2, 2009, as amended at 76 FR 54075, Aug. 31, 2011]
Sec.760.405 Application process.
(a) In addition to submitting an application for payment at the
appropriate time, a producer or contract grower that suffered livestock
losses that create or could create a claim for benefits must:
(1) For losses during 2008 and losses in 2009, prior to July 13,
2009, provide a notice of loss to FSA no later than September 13, 2009.
(2) For losses on or after July 13, 2009, provide a notice of loss
to FSA within the earlier of:
(i) 30 calendar days of when the loss of livestock is apparent to
the participant or
(ii) 30 calendar days after the end of the calendar year in which
the loss of livestock occurred.
(3) The participant must submit the notice of loss required in
paragraphs (a)(1) and (a)(2) to the FSA administrative county office
that maintains the participant's farm records for the agricultural
operation.
(b) In addition to the notices of loss required in paragraph (a) of
this section, a participant must also submit a completed application for
payment no later than
(1) 30 calendar days after the end of the calendar year in which the
loss of livestock occurred or
(2) September 13, 2009 for losses during 2008.
(c) Applicants must submit supporting documentation with their
application. For contract growers, the information must include a copy
of the grower contract and other documents establishing their status. In
addition, for all applicants, including contract growers, supporting
documents must show:
(1) Evidence of loss,
(2) Current physical location of livestock in inventory,
(3) Physical location of claimed livestock at the time of death, and
(4) Inventory numbers and other inventory information necessary to
establish actual mortality as required by FSA.
(d) The participant must provide adequate proof that the death of
the eligible livestock occurred as a direct result of an eligible
adverse weather event in the calendar year for which benefits are
requested. The quantity and kind of livestock that died as a direct
result of the eligible adverse weather event during the calendar year
for which benefits are being requested may be documented by: purchase
records; veterinarian records; bank or other loan papers; rendering-
plant truck receipts; Federal Emergency Management Agency records;
National Guard records; written contracts; production records; Internal
Revenue Service records; property tax records; private insurance
documents; and other similar verifiable documents as determined by FSA.
(e) If adequate verifiable proof of death documentation is not
available, the participant may provide reliable records, in conjunction
with verifiable beginning and ending inventory records, as proof of
death. Reliable records may include contemporaneous producer records,
dairy herd improvement records, brand inspection records, vaccination
records, pictures, and other similar reliable documents as determined by
FSA.
[[Page 98]]
(f) Certification of livestock deaths by third parties may be
accepted only if verifiable proof of death records or reliable proof of
death records in conjunction with verifiable beginning and ending
inventory records are not available and both of the following conditions
are met:
(1) The livestock owner or livestock contract grower, as applicable,
certifies in writing:
(i) That there is no other verifiable or reliable documentation of
death available;
(ii) The number of livestock, by category identified in this subpart
and by FSA were in inventory at the time the applicable adverse weather
event occurred;
(iii) The physical location of the livestock, by category, in
inventory when the deaths occurred; and
(iv) Other details required for FSA to determine the certification
acceptable; and
(2) The third party is an independent source who is not affiliated
with the farming operation such as a hired hand and is not a ``family
member,'' defined as a person whom a member in the farming operation or
their spouse is related as lineal ancestor, lineal descendant, sibling,
spouse, and provides their telephone number, address, and a written
statement containing specific details about:
(i) Their knowledge of the livestock deaths;
(ii) Their affiliation with the livestock owner;
(iii) The accuracy of the deaths claimed by the livestock owner or
contract grower including, but not limited to, the number and kind or
type of the participant's livestock that died because of the eligible
adverse weather event; and
(iv) Other information required by FSA to determine the
certification acceptable.
(g) Data furnished by the participant and the third party will be
used to determine eligibility for program benefits. Furnishing the data
is voluntary; however, without all required data program benefits will
not be approved or provided.
Sec.760.406 Payment calculation.
(a) Under this subpart, separate payment rates for eligible
livestock owners and eligible livestock contract growers are specified
in paragraphs (b) and (c) of this section, respectively. Payments for
LIP are calculated by multiplying the national payment rate for each
livestock category by the number of eligible livestock in excess of
normal mortality in each category that died as a result of an eligible
adverse weather event. Normal mortality for each livestock category will
be determined by FSA on a State-by-State basis using local data sources
including, but not limited to, State livestock organizations and the
Cooperative Extension Service for the State. Adjustments will be applied
as specified in paragraph (d) of this section.
(b) The LIP national payment rate for eligible livestock owners is
based on 75 percent of the average fair market value of the applicable
livestock as computed using nationwide prices for the previous calendar
year unless some other price is approved by the Deputy Administrator.
(c) The LIP national payment rate for eligible livestock contract
growers is based on 75 percent of the average income loss sustained by
the contract grower with respect to the dead livestock.
(d) The LIP payment calculated for eligible livestock contract
growers will be reduced by the amount the participant received from the
party who contracted with the producer to raise the livestock for the
loss of income from the dead livestock.
Subpart F_Tree Assistance Program
Source: 75 FR 25108, May 7, 2010, unless otherwise noted.
Sec.760.500 Applicability.
(a) This subpart establishes the terms and conditions under which
the Tree Assistance Program (TAP) will be administered under Titles XII
and XV of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-
246, the 2008 Farm Bill).
[[Page 99]]
(b) Eligible orchardists and nursery tree growers will be
compensated as specified in Sec.760.506 for eligible tree, bush, and
vine losses in excess of 15 percent mortality, or, where applicable, 15
percent damage, adjusted for normal mortality and normal damage, that
occurred in the calendar year for which benefits are being requested and
as a direct result of a natural disaster.
Sec.760.501 Administration.
The program will be administered as specified in Sec.760.102 and
in this subpart.
Sec.760.502 Definitions.
The following definitions apply to this subpart. The definitions in
parts 718 and 1400 of this title also apply, except where they conflict
with the definitions in this section.
Bush means, a low, branching, woody plant, from which at maturity of
the bush, an annual fruit or vegetable crop is produced for commercial
purposes, such as a blueberry bush. The definition does not cover plants
that produce a bush after the normal crop is harvested such as
asparagus.
Commercial use means used in the operation of a business activity
engaged in as a means of livelihood for profit by the eligible producer.
County committee means the respective FSA committee.
County office means the FSA or U.S. Department of Agriculture (USDA)
Service Center that is responsible for servicing the farm on which the
trees, bushes, or vines are located.
Cutting means a piece of a vine which was planted in the ground to
propagate a new vine for the commercial production of fruit, such as
grapes, kiwi fruit, passion fruit, or similar fruit.
Deputy Administrator or DAFP means the Deputy Administrator for Farm
Programs, FSA, USDA, or the designee.
Eligible nursery tree grower means a person or legal entity that
produces nursery, ornamental, fruit, nut, or Christmas trees for
commercial sale.
Eligible orchardist means a person or legal entity that produces
annual crops from trees, bushes, or vines for commercial purposes.
FSA means the Farm Service Agency.
Lost means, with respect to the extent of damage to a tree or other
plant, that the plant is destroyed or the damage is such that it would,
as determined by FSA, be more cost effective to replace the tree or
other plant than to leave it in its deteriorated, low-producing state.
Natural disaster means plant disease, insect infestation, drought,
fire, freeze, flood, earthquake, lightning, or other natural occurrence
of such magnitude or severity so as to be considered disastrous, as
determined by the Deputy Administrator.
Normal damage means the percentage, as established for the area by
the FSA State Committee, of trees, bushes, or vines in the individual
stand that would normally be damaged during a calendar year for a
producer.
Normal mortality means percentage, as established for the area by
the FSA State Committee, of expected lost trees, bushes, or vines in the
individual stand that normally occurs during a calendar year for a
producer. This term refers to the number of whole trees, bushes, or
vines that are destroyed or damaged beyond rehabilitation. Mortality
does not include partial damage such as lost tree limbs.
Seedling means an immature tree, bush, or vine that was planted in
the ground or other growing medium to grow a new tree, bush, or vine for
commercial purposes.
Stand means a contiguous acreage of the same type of trees
(including Christmas trees, ornamental trees, nursery trees, and potted
trees), bushes (including shrubs), or vines.
State committee means the respective FSA committee.
Tree means a tall, woody plant having comparatively great height,
and a single trunk from which an annual crop is produced for commercial
purposes, such as a maple tree for syrup, papaya tree, or orchard tree.
Trees used for pulp or timber are not considered eligible trees under
this subpart.
Vine means a perennial plant grown under normal conditions from
which an annual fruit crop is produced for commercial market for human
consumption, such as grape, kiwi, or passion
[[Page 100]]
fruit, and that has a flexible stem supported by climbing, twining, or
creeping along a surface. Perennials that are normally propagated as
annuals such as tomato plants, biennials such as the plants that produce
strawberries, and annuals such as pumpkins, squash, cucumbers,
watermelon, and other melons, are excluded from the term vine in this
subpart.
Sec.760.503 Eligible losses.
(a) To be considered an eligible loss under this subpart:
(1) Eligible trees, bushes, or vines must have been lost or damaged
as a result of natural disaster as determined by the Deputy
Administrator;
(2) The individual stand must have sustained a mortality loss or
damage, as the case may be, loss in excess of 15 percent after
adjustment for normal mortality or damage;
(3) The loss could not have been prevented through reasonable and
available measures; and
(4) The trees, bushes, or vines, in the absence of a natural
disaster, would not normally have required rehabilitation or replanting
within the 12-month period following the loss.
(b) The damage or loss must be visible and obvious to the county
committee representative. If the damage is no longer visible, the county
committee may accept other evidence of the loss as it determines is
reasonable.
(c) The county committee may require information from a qualified
expert, as determined by the county committee, to determine extent of
loss in the case of plant disease or insect infestation.
(d) The Deputy Administrator will determine the types of trees,
bushes, and vines that are eligible.
(e) An individual stand that did not sustain a sufficient loss as
specified in paragraph (a)(2) of this section is not eligible for
payment, regardless of the amount of loss sustained.
Sec.760.504 Eligible orchardists and nursery tree growers.
(a) To be eligible for TAP payments, the eligible orchardist or
nursery tree grower must:
(1) Have planted, or be considered to have planted (by purchase
prior to the loss of existing stock planted for commercial purposes)
trees, bushes, or vines for commercial purposes, or have a production
history, for commercial purposes, of planted or existing trees, bushes,
or vines;
(2) Have suffered eligible losses of eligible trees, bushes, or
vines occurring between January 1, 2008, and September 30, 2011, as a
result of a natural disaster or related condition;
(3) Meet the risk management purchase requirement as specified in
Sec.760.104 or the waiver requirements in Sec.760.105 or Sec.
760.107; and
(4) Have continuously owned the stand from the time of the disaster
until the time that the TAP application is submitted.
(b) A new owner of an orchard or nursery who does not meet the
requirements of paragraph (a) of this section may receive TAP payments
approved for the previous owner of the orchard or nursery and not paid
to the previous owner, if the previous owner of the orchard or nursery
agrees to the succession in writing and if the new owner:
(1) Acquires ownership of trees, bushes, or vines for which benefits
have been approved;
(2) Agrees to complete all approved practices that the original
owner has not completed; and
(3) Otherwise meets and assumes full responsibility for all
provisions of this part, including refund of payments made to the
previous owner, if applicable.
(c) A producer seeking payment must not be ineligible under the
restrictions applicable to citizenship and foreign corporations
contained in Sec.760.103(b) and must meet all other requirements of
subpart B of this part.
(d) Federal, State, and local governments and agencies and political
subdivisions thereof are not eligible for payment under this subpart.
Sec.760.505 Application.
(a) To apply for TAP, a producer that suffered eligible tree, bush,
or vine losses that occurred:
(1) During calendar years 2008, 2009, or 2010, prior to May 7, 2010,
must provide an application for payment and supporting documentation to
FSA no later than July 6, 2010.
[[Page 101]]
(2) On or after May 7, 2010, must provide an application for payment
and supporting documentation to FSA within 90 calendar days of the
disaster event or date when the loss of trees, bushes, or vines is
apparent to the producer.
(b) The producer must submit the application for payment within the
time specified in paragraph (a) of this section to the FSA
administrative county office that maintains the producer's farm records
for the agricultural operation.
(c) A complete application includes all of the following:
(1) A completed application form provided by FSA;
(2) An acreage report for the farming operation as specified in part
718, subpart B, of this chapter;
(3) Subject to verification and a loss amount determined appropriate
by the county committee, a written estimate of the number of trees,
bushes, or vines lost or damaged that is certified by the producer or a
qualified expert, including the number of acres on which the loss
occurred; and
(4) Sufficient evidence of the loss to allow the county committee to
calculate whether an eligible loss occurred.
(d) Before requests for payment will be approved, the county
committee:
(1) Must make an eligibility determination based on a complete
application for assistance;
(2) Must verify actual qualifying losses and the number of acres
involved by on-site visual inspection of the land and the trees, bushes,
or vines;
(3) May request additional information and may consider all relevant
information in making its determination; and
(4) Must verify actual costs to complete the practices, as
documented by the producer.
Sec.760.506 Payment calculations.
(a) Payment to an eligible orchardist or nursery tree grower for the
cost of replanting or rehabilitating trees, bushes, or vines damaged or
lost due to a natural disaster, in excess of 15 percent damage or
mortality (adjusted for normal damage or mortality), will be calculated
as follows:
(1) For the cost of planting seedlings or cuttings, to replace lost
trees, bushes, or vines, the lesser of:
(i) 70 percent of the actual cost of the practice, or
(ii) The amount calculated using rates established by the Deputy
Administrator for the practice.
(2) For the cost of pruning, removal, and other costs incurred for
salvaging damaged trees, bushes, or vines, or in the case of mortality,
to prepare the land to replant trees, bushes, or vines, the lesser of:
(i) 50 percent of the actual cost of the practice, or
(ii) The amount calculated using rates established by the Deputy
Administrator for the practice.
(b) An orchardist or nursery tree grower that did not plant the
trees, bushes, or vines, but has a production history for commercial
purposes on planted or existing trees and lost the trees, bushes, or
vines as a result of a natural disaster, in excess of 15 percent damage
or mortality (adjusted for normal damage or mortality), will be eligible
for the salvage, pruning, and land preparation payment calculation as
specified in paragraph (a)(2) of this section. To be eligible for the
replanting payment calculation as specified in paragraph (a)(1) of this
section, the orchardist or nursery grower who did not plant the stock
must be a new owner who meets all of the requirements of Sec.
760.504(b) or be considered the owner of the trees under provisions
appearing elsewhere in this subpart.
(c) Eligible costs for payment calculation include costs for:
(1) Seedlings or cuttings, for tree, bush, or vine replanting;
(2) Site preparation and debris handling within normal horticultural
practices for the type of stand being re-established, and necessary to
ensure successful plant survival;
(3) Pruning, removal, and other costs incurred to salvage damaged
trees, bushes, or vines, or, in the case of tree mortality, to prepare
the land to replant trees, bushes, or vines;
(4) Chemicals and nutrients necessary for successful establishment;
(5) Labor to plant seedlings or cuttings as determined reasonable by
the county committee; and
[[Page 102]]
(6) Labor used to transplant existing seedlings established through
natural regeneration into a productive tree stand.
(d) The following costs are not eligible:
(1) Costs for fencing, irrigation, irrigation equipment, protection
of seedlings from wildlife, general improvements, re-establishing
structures, and windscreens.
(2) Any other costs not listed in paragraphs (c)(1) through (c)(6)
of this section, unless specifically determined eligible by the Deputy
Administrator.
(e) Producers must provide the county committee documentation of
actual costs to complete the practices, such as receipts for labor
costs, equipment rental, and purchases of seedlings or cuttings.
(f) When lost stands are replanted, the types planted may be
different from those originally planted. The alternative types will be
eligible for payment if the new types have the same general end use, as
determined and approved by the county committee. Payments for
alternative types will be based on the lesser of rates established to
plant the types actually lost or the cost to establish the alternative
used. If the type of plantings, seedlings, or cuttings differs
significantly from the types lost, the costs may not be approved for
payment.
(g) When lost stands are replanted, the types planted may be planted
on the same farm in a different location than the lost stand. To be
eligible for payment, site preparation costs for the new location must
not exceed the cost to re-establish the original stand in the original
location.
(h) Eligible orchardists or nursery tree growers may elect not to
replant the entire eligible stand. If so, the county committee will
calculate payment based on the number of qualifying trees, bushes, or
vines actually replanted.
(i) If a practice, such as site preparation, is needed to both
replant and rehabilitate trees, bushes, or vines, the producer must
document the expenses attributable to replanting versus rehabilitation.
The county committee will determine whether the documentation of
expenses detailing the amounts attributable to replanting versus
rehabilitation is acceptable. In the event that the county committee
determines the documentation does not include acceptable detail of cost
allocation, the county committee will pro-rate payment based on physical
inspection of the loss, damage, replanting, and rehabilitation.
(j) The cumulative total quantity of acres planted to trees, bushes,
or vines for which a producer may receive payment under this part for
losses that occurred between January 1, 2008, and September 30, 2011,
will not exceed 500 acres.
Sec.760.507 Obligations of a participant.
(a) Eligible orchardists and nursery tree growers must execute all
required documents and complete the TAP-funded practice within 12 months
of application approval.
(b) Eligible orchardist or nursery tree growers must allow
representatives of FSA to visit the site for the purposes of certifying
compliance with TAP requirements.
(c) Producers who do not meet all applicable requirements and
obligations will not be eligible for payment.
Subpart G_Supplemental Revenue Assistance Payments Program
Source: 74 FR 68490, Dec. 28, 2009, unless otherwise noted.
Sec.760.601 Applicability.
(a) This subpart specifies the terms and conditions of the
Supplemental Revenue Assistance Payments Program (SURE).
(b) Assistance in the form of SURE payments is available for crop
losses occurring in the crop year 2008 through September 30, 2011,
caused by disaster as determined by the Secretary. Crop losses must have
occurred in crop year 2008 or subsequent crop years due to an eligible
disaster event that occurs on or before September 30, 2011.
(c) SURE provides disaster assistance to eligible participants on
farms in:
(1) Disaster counties designated by the Secretary, which also
includes counties contiguous to such declared
[[Page 103]]
disaster counties, if the participant incurred actual production losses
of at least 10 percent to at least one crop of economic significance on
the farm; and
(2) Any county, if the participant incurred eligible total crop
losses of greater than or equal to 50 percent of the normal production
on the farm, as measured by revenue, including a loss of at least 10
percent to at least one crop of economic significance on the farm.
(d) Subject to the provisions in subpart B of this part, SURE
payments will be issued on 60 percent of the difference between the SURE
guarantee and total farm revenue, calculated using the National Average
Market Price as specified in this subpart.
[74 FR 68490, Dec. 28, 2009, as amended at 76 FR 54075, Aug. 31, 2011]
Sec.760.602 Definitions.
(a) The following definitions apply to all determinations made under
this subpart.
(b) The terms defined in parts 718, 1400, and 1437 of this title and
subpart B of this part will be applicable, except where those
definitions conflict with the definitions set forth in this section In
the event that a definition in any of those parts conflicts with the
definitions set forth in this subpart, the definitions in this subpart
apply. Any additional conflicts will be resolved by the Deputy
Administrator.
Actual crop acreage means all acreage for each crop planted or
intended to be planted on the farm.
Actual production history yield means the average of the actual
production history yields for each insurable or noninsurable crop as
calculated under the Federal Crop Insurance Act (FCIA) (7 U.S.C. 1501-
1524) or Noninsured Crop Disaster Assistance Program (NAP) as set forth
in part 1437 of this title, respectively. FSA will use the actual
production history yield data provided for crop insurance or NAP, if
available, in the SURE payment calculation.
Actual production on the farm means, unless the Deputy Administrator
determines that the context requires otherwise, the sum obtained by
adding:
(1) For each insurable crop on the farm, excluding value loss crops,
the product obtained by multiplying:
(i) 100 percent of the per unit price for the crop used to calculate
a crop insurance indemnity for the applicable crop insurance if a crop
insurance indemnity is triggered. If a price is not available, then the
price is 100 percent of the NAP established price for the crop, times
(ii) The relevant per unit quantity of the crop produced on the
farm, adjusted for quality losses, plus
(2) For each noninsurable crop on the farm, excluding value loss
crops, the product obtained by multiplying:
(i) 100 percent of the per unit NAP established price for the crop,
times
(ii) The relevant per unit quantity of the crop produced on the
farm, adjusted for quality losses, plus
(3) For value loss crops, the value of inventory immediately after
the disaster.
Adjusted actual production history yield means a yield that will not
be less than the participant's actual production history yield for a
year and:
(1) In the case of an eligible participant on a farm that has at
least 4 years of actual production history for an insurable crop that
are established other than pursuant to section 508(g)(4)(B) of FCIA, the
average of the production history for the eligible participant without
regard to any yields established under that section;
(2) In the case of an eligible participant on a farm that has less
than 4 years of actual production history for an insurable crop, of
which one or more were established pursuant to section 508(g)(4)(B) of
FCIA, the average of the production history for the eligible participant
as calculated without including the lowest of the yields established
pursuant to section 508(g)(4)(B) of FCIA; or
(3) In all other cases, the actual production history yield of the
eligible participant on a farm.
Adjusted NAP yield means a yield that will not be less than the
participant's actual production history yield for NAP for a year and:
(1) In the case of an eligible participant on a farm that has at
least 4 years of actual production history under NAP that are not
replacement yields, the average of the production history
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without regard to any replacement yields;
(2) In the case of an eligible participant on a farm that has less
than 4 years of actual production history under NAP that are not
replacement yields, the average of the production history without
including the lowest of replacement yields; or
(3) In all other cases, the actual production history yield of the
eligible participant on the farm under NAP.
Administrative fee means a fixed fee payable by a participant for
NAP or crop insurance coverage, including buy-in fees, based on the
number of covered crops under NAP or insurance under FCIA.
Appraised production means production determined by FSA, or an
insurance provider approved by FCIC, that was unharvested, but which was
determined to reflect the crop's yield potential at the time of
appraisal. An appraisal may be provided in terms of a potential value of
the crop.
Aquaculture means the reproduction and rearing of aquatic species as
specified in part 1437 of this title in controlled or selected
environments.
Brownout means a disruption of electrical or other similar power
source for any reason. A brownout, although it may indirectly have an
adverse effect on crops, is not a disaster for the purposes of this
subpart and losses caused by a brownout will not be considered a
qualifying loss.
Catastrophic risk protection (CAT) means the minimum level of
coverage offered by the Risk Management Agency (RMA) for crop insurance.
CAT is further specified in parts 402 and 1437 of this title.
Counter-cyclical program payment yield means the weighted average
payment yield established under part 1412, subpart C of this title.
County expected yield means an estimated yield, expressed in a
specific unit of measure equal to the average of the most recent five
years of official county yields established by FSA, excluding the years
with the highest and lowest yields, respectively.
Crop insurance indemnity means, for the purpose of this subpart, the
net payment to a participant excluding the value of the premium for crop
losses covered under crop insurance administered in accordance with FCIA
by RMA.
Crop of economic significance means any crop, as defined in this
subpart that contributed, or, if the crop is not successfully produced,
would have contributed or is expected to contribute, 5 percent or more
of the total expected revenue from all of a participant's crops on a
farm.
Crop year means as determined by the Deputy Administrator for a
commodity on a nationwide basis the calendar year in which the crop is
normally harvested or, where more than one calendar year is involved,
the calendar year in which the majority of the crop would have been
harvested. For crops on which catastrophic risk protection, as defined
in this section, is available, the crop year will be as defined as in
such coverage. Crop year determinations by the Deputy Administrator will
be final in all cases and, because these are matters of general
applicability, will not considered by the Farm Service Agency to be
subject to administrative appeal.
Determined acreage or determined production means the amount of
acres or production for a farm established by a representative of FSA by
use of appropriate means such as official acreage, digitizing and
planimetering areas on the photograph or other photographic image, or
computations from scaled dimensions or ground measurements. In the case
of production, any production established by a representative of FSA
through audit, review, measurement, appraisal, or other acceptable means
of determining production, as determined by FSA.
Disaster means damaging weather, including drought, excessive
moisture, hail, freeze, tornado, hurricane, typhoon, excessive wind,
excessive heat, weather-related saltwater intrusion, weather-related
irrigation water rationing, or any combination thereof and adverse
natural occurrences such as earthquakes or volcanic eruptions. Disaster
includes a related condition that occurs as a result of the damaging
weather or adverse natural occurrence and exacerbates the condition of
the
[[Page 105]]
crop, such as disease and insect infestation. It does not include
brownouts or power failures.
Disaster county means a county included in the geographic area
covered by a qualifying natural disaster designation under section
321(a) of the Consolidated Farm and Rural Development Act (7 U.S.C.
1961(a)) and for SURE, the term ``disaster county'' also includes a
county contiguous to a county declared a disaster by the Secretary;
however, farms not in a disaster county may qualify under SURE where for
the relevant period, as determined under this subpart, the actual
production on a farm is less than 50 percent of the normal production on
the farm.
Double-cropping means, as determined by the Deputy Administrator on
a regional basis, planting for harvest a crop of a different commodity
on the same acres in cycle with another crop in a 12-month period in an
area where such double-cropping is considered normal, or could be
considered to be normal, for all growers and under normal growing
conditions and normal agricultural practices for the region and being
able to repeat the same cycle in the following 12-month period.
Farm means, for the purposes of determining SURE eligibility, the
entirety of all crop acreage in all counties that a producer planted or
intended to be planted for harvest for normal commercial sale or on-farm
livestock feeding, including native and improved grassland intended for
haying. In the case of aquaculture, except for species for which an
Aquaculture Grant Program payment was received, the term ``farm''
includes all acreage used for all aquatic species being produced in all
counties that the producer intended to harvest for normal commercial
sale. In the case of honey, the term ``farm'' means all bees and
beehives in all counties that the participant intended to be harvested
for a honey crop for normal commercial sale.
FCIC means the Federal Crop Insurance Corporation, a wholly owned
Government Corporation operated and managed by USDA RMA.
FSA means the Farm Service Agency.
Harvested means:
(1) For insurable crops, harvested is as defined according to the
applicable crop insurance policy administered in accordance with FCIA by
RMA;
(2) For NAP-covered single harvest crops, a mature crop that has
been removed from the field, either by hand or mechanically;
(3) For noninsurable crops with potential multiple harvests in one
year or one crop harvested over multiple years, that the participant
has, by hand or mechanically, removed at least one mature crop from the
field during the crop year; or
(4) For mechanically harvested noninsurable crops, that the mature
crop has been removed from the field and placed in or on a truck or
other conveyance, except hay is considered harvested when in the bale,
whether removed from the field or not. Grazing of land will not be
considered harvested for the purpose of determining an unharvested or
prevented planting payment factor.
Initial crop means a first crop planted for which assistance is
provided under this subpart.
Insurable crop means an agricultural commodity (excluding livestock)
for which the participant on a farm is eligible to obtain a policy or
plan of crop insurance administered in accordance with FCIA by RMA. Such
a crop for which the participant purchased insurance from RMA is
referred to as an insured crop.
Insurance is available means when crop information is contained in
RMA's county actuarial documents for a particular crop and a policy or
plan of insurance administered in accordance with FCIA by RMA. If the
Adjusted Gross Revenue Plan of crop insurance was the only plan of
insurance available for the crop in the county in the applicable crop
year, insurance is considered not available for that crop. If an AGR
plan or a pilot plan was the only plan available, producers are not
required to purchase it to meet the risk management purchase
requirement, but it will satisfy the risk management purchase
requirement. In that case, the other ways to meet the requirement would
be, if all the requirements of this subpart are met, a buy-in or NAP.
[[Page 106]]
Intended use means the original use for which a crop or a commodity
is grown and produced.
Marketing year means the 12 months immediately following the
established final harvest date of the crop of a commodity, as determined
by the Deputy Administrator, and not an individual participant's final
harvest date. FSA will use the marketing year determined by NASS, when
available.
Maximum average loss level means the maximum level of crop loss that
will be used in calculating SURE payments for a participant without
reliable or verifiable production records as defined in this section.
Loss levels are expressed in either a percent of loss or a yield per
acre, and reflect the amount of production that a participant should
have produced considering the eligible disaster conditions in the area
or county, as determined by the FSA county committee in accordance with
instructions issued by the Deputy Administrator.
Multi-use crop means a crop intended for more than one use during
the calendar year such as grass harvested for seed, hay, or grazing.
Multiple planting means the planting for harvest of the same crop in
more than one planting period in a crop year on the same or different
acreage. This is also sometimes referred in this rule as multiple
cropping.
NAMP means the national average market price determined in
accordance with Sec. Sec.760.640 and 760.641.
NASS is the USDA National Agricultural Statistics Service.
Noninsurable crop means a commercially produced crop for which the
eligible participants on a farm may obtain coverage under NAP.
Noninsured Crop Disaster Assistance Program or NAP means the FSA
program carried out under 7 U.S.C. 7333, as specified in part 1437 of
this title.
Normal production on the farm means, for purposes of the revenue
calculations of this subpart, the sum of the expected revenue for all
crops on the farm. It is stated in terms of revenue, because different
crops may have different units of measure.
Planted acreage means land in which seed, plants, or trees have been
placed, appropriate for the crop and planting method, at a correct
depth, into a seed bed that has been properly prepared for the planting
method and production practice normal to the area, as determined by the
FSA county committee.
Prevented planting means the inability to plant an eligible crop
with proper equipment during the planting period as a result of a
disaster, as determined by FSA. All prevented planted cropland must meet
conditions provided in Sec.718.103 of this chapter. Additionally, all
insured crops must satisfy the provisions of prevented planting provided
in Sec.457.8 of this title.
Price election means, for an insured crop, the crop insurance price
elected by the participant multiplied by the percentage of price elected
by the participant.
Production means quantity of a crop or commodity produced on the
farm expressed in a specific unit of measure including, but not limited
to, bushels or pounds and used to determine the normal production on a
farm. Normal production for the whole farm is stated in terms of
revenue, because different crops may have different units of measure.
Qualifying loss means a 10 percent loss of at least one crop of
economic significance due to disaster and on a farm that is either:
(1) Located in a disaster county (a county for which a Secretarial
disaster designation has been issued or in a county contiguous to a
county that has received a Secretarial disaster designation), or
(2) If not located in any disaster county or county contiguous to
such a county, but has an overall loss greater than or equal to 50
percent of normal production on the farm (expected revenue for all crops
on the farm) due to disaster.
Qualifying natural disaster designation means a natural disaster
designated by the Secretary for production losses under section 321(a)
of the Consolidated Farm and Rural Development Act (7 U.S.C. 1961(a)).
Related condition means, with respect to a disaster, a condition
that causes deterioration of a crop such as insect infestation, plant
disease, or aflatoxin that is accelerated or exacerbated as a
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result of damaging weather, as determined by the Deputy Administrator.
Reliable production records means evidence provided by the
participant to the FSA county office that FSA determines is adequate to
substantiate the amount of production reported when verifiable records
are not available, including copies of receipts, ledgers of income,
income statements, deposit slips, register tapes, invoices for custom
harvesting, records to verify production costs, contemporaneous
measurements, truck scale tickets, and contemporaneous diaries. When the
term ``acceptable production records'' is used in this rule, it may be
either reliable or verifiable production records, as defined in this
section.
Reported acreage or production means information obtained from the
participant or the participant's agent, on a form prescribed by FSA or
through insurance records.
RMA means the Risk Management Agency.
Salvage value means the dollar amount or equivalent for the quantity
of the commodity that cannot be marketed or sold in any recognized
market for the crop.
Secretary means the Secretary of Agriculture.
State means a State; the District of Columbia, the Commonwealth of
Puerto Rico, and any other territory or possession of the United States.
Subsequent crop means any crop planted after an initial crop, on the
same land, during the same crop year.
SURE means the Supplemental Revenue Assistance Payments Program.
Unit of measure means:
(1) For all insurable crops, the FCIC established unit of measure;
(2) For all noninsurable crops, if available, the established unit
of measure used for the NAP price and yield;
(3) For aquatic species, a standard unit of measure such as gallons,
pounds, inches or pieces, established by the FSA State committee for all
aquatic species or varieties;
(4) For turfgrass sod, a square yard;
(5) For maple sap, a gallon; and
(6) For all other crops, the smallest unit of measure that lends
itself to the greatest level of accuracy, as determined by the FSA State
committee.
USDA means United States Department of Agriculture.
Value loss crop has the meaning specified in part 1437, subpart D of
this title. Unless otherwise announced by FSA, value loss crops for SURE
include aquaculture, floriculture, ornamental nursery, Christmas trees,
mushrooms, ginseng, and turfgrass sod.
Verifiable production records mean evidence that is used to
substantiate the amount of production reported and that can be verified
by FSA through an independent source.
Volunteer stand means plants that grow from seed residue or are
indigenous or are not planted. Volunteer plants may sprout from seeds
left behind during a harvest of a previous crop; be unintentionally
introduced to land by wind, birds, or fish; or be inadvertently mixed
into a crop's growing medium.
Sec.760.610 Participant eligibility.
(a) In addition to meeting the eligibility requirements of Sec.
760.103, a participant must meet all of the following conditions:
(1) All insurable crops on the participant's farm must be covered by
crop insurance administered by RMA in accordance with FCIA, and all
noninsured crops must be covered under NAP, as specified in Sec.
760.104, unless the participant meets the requirements in either Sec.
760.105 or Sec.760.107. At the discretion of FSA, the equitable relief
provisions in Sec.760.106 may apply.
(2) Crop losses must have occurred in crop year 2008 or subsequent
crop years due to an eligible disaster event that occurred on or before
September 30, 2011.
(i) For insured crops, the coverage period, as defined in the
insurance policy, must have begun on or before September 30, 2011;
(ii) For NAP crops, the coverage period must have begun on or before
September 30, 2011; and
(iii) The final planting date for that crop according to the Federal
crop insurance or NAP policy must have been on or before September 30,
2011.
(3) A qualifying loss as defined in Sec.760.602 must have
occurred.
(4) The participant must have been in compliance with the Highly
Erodible
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Land Conservation and Wetland Conservation provisions of part 12 of this
title, for 2008 and subsequent crop years through September 30, 2011, as
applicable, and must not otherwise be barred from receiving benefits or
payments under part 12 of this title or any other law.
(5) The participant must not be ineligible or otherwise barred from
the requisite risk management insurance programs or NAP because of past
violations where those insurance programs or NAP would otherwise be
available absent such violations.
(6) The participant must have an entitlement to an ownership share
of the crop and also assume production and market risks associated with
the production of the crop. In the event the crop was planted but not
produced, participants must have an ownership share of the crop that
would have been produced.
(i) Any verbal or written contract that precludes the grower from
having an ownership share renders the grower ineligible for payments
under this subpart.
(ii) Growers growing eligible crops under contract are not eligible
participants under this subpart unless the grower has an ownership share
of the crop.
(b) In the event that a producer is determined not to be an eligible
producer of a crop in accordance with this section, such crop will be
disregarded in determining the producer's production or eligibility for
payments under this subpart. However, any insurance, farm program, or
NAP payments received by the producer on such crop will count as farm
revenue if that producer is an eligible participant as a producer of
other crops.
(c) Participants may not receive payments with respect to volunteer
stands of crops. Volunteer stands will not be considered in either the
calculation of revenue or of the SURE guarantee.
(d) A deceased applicant or an applicant that is a dissolved entity
that suffered losses prior to the death or the dissolution that met all
eligibility criteria prior to death or dissolution may be eligible for
payments for such losses if an authorized representative signs the
application for payment. Proof of authority to sign for the deceased
participant or dissolved entity must be provided. If a participant is
now a dissolved general partnership or joint venture, all members of the
general partnership or joint venture at the time of dissolution or their
duly authorized representatives must sign the application for payment.
Eligibility of such participant will be determined, as it is for other
participants, based upon ownership share and risk in producing the crop.
(e) Participants receiving payments under the Emergency Assistance
for Livestock, Honey Bees, and Farm-Raised Fish Program (ELAP) as
specified in subpart C of this part are not eligible to receive payments
under SURE for the same loss.
(f) Participants with a farming interest in multiple counties who
apply for SURE payment based on a Secretarial disaster designation must
have a 10 percent loss of a crop of economic significance located in at
least one disaster county, as defined in this subpart, to be eligible
for SURE.
[74 FR 68490, Dec. 28, 2009, as amended at 76 FR 54075, Aug. 31, 2011]
Sec.760.611 Qualifying losses, eligible causes and types of loss.
(a) Eligible causes of loss are disasters which cause types of
losses where the crop could not be planted or where crop production was
adversely affected in quantity, quality, or both. A qualifying loss, as
defined in this subpart, must be the result of a disaster.
(b) A loss will not be considered a qualifying loss if any of the
following apply:
(1) The cause of the loss was not the result of disaster;
(2) The cause of loss was due to poor management decisions or poor
farming practices, as determined by the FSA county committee on a case-
by-case basis;
(3) The cause of loss was due to failure of the participant to re-
seed or replant to the same crop in a county where it is customary to
re-seed or replant after a loss before the final planting date;
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(4) The cause of loss was due to water contained or released by any
governmental, public, or private dam or reservoir project if an easement
exists on the acreage affected by the containment or release of the
water;
(5) The cause of loss was due to conditions or events occurring
outside of the applicable crop year growing season; or
(6) The cause of loss was due to a brownout.
(c) The following types of loss, regardless of whether they were the
result of a disaster, are not qualifying losses:
(1) Losses to crops not intended for harvest in the applicable crop
year;
(2) Losses of by-products resulting from processing or harvesting a
crop, such as, but not limited to, cotton seed, peanut shells, wheat or
oat straw, or corn stalks or stovers;
(3) Losses to home gardens; or to a crop subject to a de minimis
election according to Sec.760.613;
(4) Losses of crops that were grazed or, if prevented from being
planted, had the intended use of grazing; or
(5) Losses of first year seeding for forage production, or immature
fruit crops.
(d) The following losses of ornamental nursery stock are not a
qualifying loss:
(1) Losses caused by a failure of power supply or brownout as
defined in Sec.760.602;
(2) Losses caused by the inability to market nursery stock as a
result of quarantine, boycott, or refusal of a buyer to accept
production;
(3) Losses caused by fires that are not the result of disaster;
(4) Losses affecting crops where weeds and other forms of
undergrowth in the vicinity of nursery stock have not been controlled;
or
(5) Losses caused by the collapse or failure of buildings or
structures.
(e) The following losses for honey, where the honey production by
colonies or bees was diminished, are not a qualifying loss:
(1) Losses caused by the unavailability of equipment or the collapse
or failure of equipment or apparatus used in the honey operation;
(2) Losses caused by improper storage of honey;
(3) Losses caused by bee feeding;
(4) Losses caused by the application of chemicals;
(5) Losses caused by theft or fire not caused by a natural condition
including, but not limited to, arson or vandalism;
(6) Losses caused by the movement of bees by the participant or any
other legal entity or person;
(7) Losses caused by disease or pest infestation of the colonies,
unless approved by the Secretary;
(8) Losses of income from pollinators; or
(9) Losses of equipment or facilities.
Sec.760.613 De minimis exception.
(a) Participants seeking the de minimis exception to the risk
management purchase requirements of this subpart, must certify:
(1) That a specific crop on the farm is not a crop of economic
significance on the farm; or
(2) That the administrative fee required for the purchase of NAP
coverage for a crop exceeds 10 percent of the value of that coverage.
(b) To be eligible for a de minimis exception to the risk management
purchase requirement in Sec.760.104, the participant must elect such
exception at the same time the participant files the application for
payment and the certification of interests, as specified in Sec.
760.620, and specify the crop or crops for which the participant is
requesting such exception.
(c) FSA will not consider the value of any crop elected under
paragraph (b) of this section in calculating both the SURE guarantee and
the total farm revenue.
(d) All provisions of this subpart apply in the event a participant
does not obtain an exception according to this section.