[Federal Register Volume 80, Number 52 (Wednesday, March 18, 2015)]
[Proposed Rules]
[Pages 14030-14033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06224]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 80, No. 52 / Wednesday, March 18, 2015 /
Proposed Rules
[[Page 14030]]
DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
7 CFR Part 400
[Docket No. FCIC-14-0001]
RIN 0563-AC45
General Administrative Regulations; Subpart X--Interpretations of
Statutory Provisions, Policy Provisions, and Procedures
AGENCY: Federal Crop Insurance Corporation, USDA.
ACTION: Proposed rule.
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SUMMARY: The Federal Crop Insurance Corporation (FCIC) proposes to
revise the General and Administrative Regulation Subpart X--
Interpretations of Statutory and Regulatory Provisions, to incorporate
interpretations of procedures previously issued and administered in
accordance with Manager's Bulletin MGR-05-018 and to provide a
mechanism for interpretations of policy provisions that are not
codified in the Code of Federal Regulations. The intended effect of
this action is to provide requestors with information on how to request
a final agency determination or an interpretation of FCIC procedures
within one administrative regulation, bring consistency and clarity to
the processes used, and to clarify existing provisions.
DATES: Written comments and opinions on this proposed rule will be
accepted until close of business April 17, 2015 and will be considered
when the rule is to be made final.
ADDRESSES: FCIC prefers that comments be submitted electronically
through the Federal eRulemaking Portal. You may submit comments,
identified by Docket ID No. FCIC-14-0001, by any of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Director, Product Administration and Standards
Division, Risk Management Agency, United States Department of
Agriculture, P.O. Box 419205, Kansas City, MO 64133-6205.
All comments received, including those received by mail, will be
posted without change to http://www.regulations.gov, including any
personal information provided, and can be accessed by the public. All
comments must include the agency name and docket number or Regulatory
Information Number (RIN) for this rule. For detailed instructions on
submitting comments and additional information, see http://www.regulations.gov. If you are submitting comments electronically
through the Federal eRulemaking Portal and want to attach a document,
we ask that it be in a text-based format. If you want to attach a
document that is a scanned Adobe PDF file, it must be scanned as text
and not as an image, thus allowing FCIC to search and copy certain
portions of your submissions. For questions regarding attaching a
document that is a scanned Adobe PDF file, please contact the RMA Web
Content Team at (816) 823-4694 or by email at
[email protected].
Privacy Act: Anyone is able to search the electronic form of all
comments received for any dockets by the name of the person submitting
the comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). You may review the complete
User Notice and Privacy Notice for Regulations.gov at http://www.regulations.gov/#!privacyNotice.
FOR FURTHER INFORMATION CONTACT: Product Management, Product
Administration and Standards Division, Risk Management Agency, United
States Department of Agriculture, Beacon Facility, Stop 0812, Room 421,
PO Box 419205, Kansas City, MO 64141-6205, telephone (816) 926- 7730.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be not significant for the
purposes of Executive Order 12866 and, therefore, it has not been
reviewed by the OMB.
Paperwork Reduction Act of 1995
Pursuant to the provisions of the Paperwork Reduction Act of 1995
(44 U.S.C. chapter 35), the collections of information in this rule
have been approved by the Office of Management and Budget (OMB) under
control number 0563-0055.
E-Government Act Compliance
FCIC is committed to complying with the E-Government Act of 2002,
to promote the use of the Internet and other information technologies
to provide increased opportunities for citizen access to Government
information and services, and for other purposes.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. This rule contains no Federal
mandates (under the regulatory provisions of title II of the UMRA) for
State, local, and tribal governments or the private sector. Therefore,
this rule is not subject to the requirements of sections 202 and 205 of
UMRA.
Executive Order 13132
It has been determined under section 1(a) of Executive Order 13132,
Federalism, that this rule does not have sufficient implications to
warrant consultation with the States. The provisions contained in this
rule will not have a substantial direct effect on States, or on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. The review reveals that this regulation will not have
substantial and direct effects on Tribal governments and will not have
significant Tribal implications.
Regulatory Flexibility Act
FCIC certifies that this regulation will not have a significant
economic impact on a substantial number of small entities. The
regulation does not require any more action on the part of the small
entities than is required on the part of large entities. A Regulatory
Flexibility Analysis has not been prepared since
[[Page 14031]]
this regulation does not have an impact on small entities, and,
therefore, this regulation is exempt from the provisions of the
Regulatory Flexibility Act (5 U.S.C. 605).
Federal Assistance Program
This program is listed in the Catalog of Federal Domestic
Assistance under No. 10.450.
Executive Order 12372
This program is not subject to the provisions of Executive Order
12372, which require intergovernmental consultation with State and
local officials. See the Notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115, June 24, 1983.
Executive Order 12988
This proposed rule has been reviewed in accordance with Executive
Order 12988 on civil justice reform. The provisions of this rule will
not have a retroactive effect. The provisions of this rule will preempt
State and local laws to the extent such State and local laws are
inconsistent herewith. Interpretations of statutory and regulatory
provisions are matters of general applicability and, therefore, no
administrative appeals process is available and judicial review may
only be brought to challenge the interpretation after seeking a
determination of appealability by the Director of the National Appeals
Division in accordance with 7 CFR part 11. Interpretations of procedure
or policy provisions not codified in the Code of Federal Regulations
are administratively appealable and the appeal provisions published at
7 CFR part 11 must be exhausted before any action for judicial review
may be brought against FCIC.
Environmental Evaluation
This action is not expected to have a significant economic impact
on the quality of the human environment, health, or safety. Therefore,
neither an Environmental Assessment nor an Environmental Impact
Statement is needed.
Background
FCIC proposes to revise the General and Administrative Regulations
Subpart X--Interpretations of Statutory and Regulatory Provisions to
provide requestors with information on how to request a final agency
determination and an interpretation of procedures or policy provisions
not codified in the Code of Federal Regulations within one
administrative regulation. There are provisions in policies not
codified in the Code of Federal Regulations that are identical to those
in the Common Crop Insurance Basic Provisions (Basic Provisions) or
Crop Provisions codified in the Code of Federal Regulations. In such
instances, the requestor sought an interpretation of the applicable
provision in the Basic Provisions and that interpretation was
applicable to all policies that contained an identical provision.
Nothing in this rule changes this process. However, there are numerous
policies with provisions that are not codified in the Code of Federal
Regulations in any policy. For these policy provisions, this rule
provides a mechanism to obtain an interpretation of such provision.
The rule will also clarify existing provisions, eliminate
redundancies, remove or update obsolete references, simplify the
regulation to address final agency determinations and interpretations
of procedures or policy provisions not codified in the Code of Federal
Regulations in the same regulation, simplify program administration,
and improve clarity of the requestor and FCIC obligations. The proposed
rule also incorporates the information formerly contained in Manager's
Bulletin MGR-05-018 into subpart X for efficiency and ease of use.
Manager's Bulletin MGR-05-018 currently provides criteria for
requesting an interpretation of procedures when a requestor seeks an
interpretation of the meaning or applicability of procedure used in
administering the Federal crop insurance program. Accordingly,
Manager's Bulletin MGR-05-018 will no longer be used upon issuance of
the final rule to this proposed rule.
The proposed rule amends the language to be consistent where
possible and revises the regulation in plain language for ease of
readability by the requestor.
List of Subjects in 7 CFR Part 400
Administrative practice and procedure, crop insurance, reporting
and recordkeeping requirements.
Proposed Rule
Accordingly, as set forth in the preamble, the Federal Crop
Insurance Corporation proposes to amend 7 CFR part 400 as follows:
PART 400--GENERAL ADMINISTRATIVE REGULATIONS
0
1. The authority citation for 7 CFR part 400 continues to read as
follows:
Authority: 7 U.S.C. 1506(1), 1506(o).
0
2. Revise Sec. Subpart X as follows:
Subpart X--Interpretations of Statutory Provisions, Policy
Provisions, and Procedures
Sec.
400.765 Definitions.
400.766 Basis and Applicability.
400.767 Requestor Obligations.
400.768 FCIC Obligations.
Sec. 400.765 Definitions.
Act. The Federal Crop Insurance Act, 7 U.S.C. 1501-1524.
FCIC. The Federal Crop Insurance Corporation, a wholly owned
government corporation within the United States Department of
Agriculture.
Final Agency Determination. An interpretation of provisions of the
Act, regulations, or any policy provision that is codified in the
Federal Register.
Participant. Any applicant for Federal crop insurance, an insured,
or a private insurance company with a reinsurance agreement with FCIC
or their agent, loss adjuster, employee or contractor.
Policy. The agreement to insure an agricultural commodity reinsured
by FCIC under the provisions of the Federal Crop Insurance Act which
consists of the accepted application, the applicable Basic Provisions,
the Crop Provisions, the Special Provisions, the Commodity Exchange
Price Provisions, if applicable, other amendments, endorsements, or
options, the actuarial documents for the insured agricultural
commodity, the Catastrophic Risk Protection Endorsement, if applicable,
and the applicable regulations published in 7 CFR chapter IV.
Procedure. All FCIC issued handbooks, manuals, memoranda, and
bulletins for any crop insurance policy reinsured by FCIC.
RMA. The Risk Management Agency, an agency of the United States
Department of Agriculture.
You. The requestor of a final agency determination or
interpretation of procedure or policy provision not codified in the
Code of Federal Regulations.
Sec. 400.766 Basis and Applicability.
(a) The regulations contained in this subpart prescribe the rules
and criteria for obtaining a final agency determination or an
interpretation of a procedure or policy provision not codified in the
Code of Federal Regulations.
(1) FCIC will provide a final agency determination or an
interpretation of procedure or policy provision not codified in the
Code of Federal Regulations, as applicable, for policy provisions or
procedures that were in effect during the four most recent
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calendar years from the calendar year in which your request was
submitted. For example, for a request received in the 2014 calendar
year, FCIC will consider requests for the 2014, 2013, 2012, and 2011.
(2) If FCIC determines a request is outside the scope of crop years
authorized in paragraph (a)(1) of this section, you will be notified
within 30 days of the date of receipt by FCIC.
(3) If the policy provisions or procedures have changed for the
time period you seek an interpretation you must submit a separate
request for each policy provision or procedure by year. For example, if
you seek an interpretation of section 6(b) of the Small Grains Crop
Provisions for the 2012 through 2015 crop years but the policy
provisions were revised starting with the 2014 crop year. You must
submit two requests, one for the 2012 and 2013 crop years and another
for the 2014 and 2015 crop years.
(b) With respect to a Final Agency Determination:
(1) All final agency determinations issued by FCIC are binding on
all participants in the Federal crop insurance program for the crop
years the policy provisions are in effect. Unless appealed in
accordance with paragraph (2), failure of the National Appeals
Division, arbitrator, or mediator to adhere to the final agency
determination provided under this subpart will result in the
nullification of any award or agreement in arbitration or mediation.
(2) All final agency determinations are considered matters of
generally applicable and are not appealable to the National Appeals
Division.
(i) Before obtaining judicial review of any final agency
determination, you must obtain an administrative final determination
from the Director of the National Appeals Division on the issue of
whether the final agency determination is a matter of general
applicability.
(ii) Any appeal of a final agency determination must be in
accordance with 7 CFR 400.766(c)(4).
(c) With respect to an interpretation of procedure or policy
provision not codified in the Code of Federal Regulations:
(1) If either you or any other does not agree with the written
interpretation of procedure or policy provision not codified in the
Code of Federal Regulations provided by FCIC, a request for
administrative review may be filed in accordance with 7 CFR, part 400,
subpart J. If you seek an administrative review from FCIC, such request
must be submitted in in accordance with Sec. 400.767(a).
(2) FCIC will not accept requests for administrative review from
the National Appeals Division, a mediator or arbitrator.
(3) The RMA Office of the Deputy Administrator for Product
Management will make a determination on the request for administrative
review not later than 30 days after receipt of the request.
(4) Regardless of whether you have sought administrative review,
you may appeal an interpretation of procedure made by FCIC to the
National Appeals Division in accordance with 7 CFR part 11.
Sec. 400.767 Requestor Obligations.
(a) All requests for a final agency determination or an
interpretation of procedure or policy provision not codified in the
Code of Federal Regulations submitted under this subpart must:
(1) Be submitted to the Deputy Administrator using the format
provided on RMA's Web site at http://www.rma.usda.gov/regs/533/section533.html through one of the following methods:
(i) In writing by certified mail or overnight delivery, to the
Deputy Administrator, Risk Management Agency, United States Department
of Agriculture, Beacon Facility, Stop 0801, Room 421, P.O. Box 419205,
Kansas City, MO 64141-6205;
(ii) By facsimile at (816) 926-1803; or
(iii) By electronic mail at [email protected];
(2) State whether you are seeking a final agency determination or
an interpretation of procedure or policy provision not codified in the
Code of Federal Regulations;
(3) Identify and quote the specific provision in the Act,
regulations, procedure, or policy provision for which you are
requesting a final agency determination or an interpretation of
procedure or policy provision not codified in the Code of Federal
Regulations;
(4) Contain no more than one request for an interpretation (You
must make separate requests for each provision if more than one
provision is at issue. For example, if there is a dispute with the
interpretation of section 3 of the Loss Adjustment Manual, then one
request for an interpretation is required. If there is a dispute with
the interpretation of section 3 of the Loss Adjustment Manual and
section 2 of the Macadamia Nut Loss Adjustment Standards Handbook, then
two separate requests for an interpretation are required);
(5) State the crop, crop year(s), and plan of insurance applicable
to the request;
(6) State the name, address, and telephone number of a contact
person for the request; and
(7) Contain your detailed interpretation of the specific provision
of the Act, regulations, procedure, or policy provision for which the
request for interpretation is being requested.
(b) You may request a final agency determination or an
interpretation of procedure or policy provision not codified in the
Code of Federal Regulations, as applicable, only if you have legally
filed or formally initiated a judicial review, mediation, or
arbitration.
(1) You must identify the type of proceeding (e.g. mediation,
arbitration, or litigation) in which the interpretation will be used,
and the date the proceeding is scheduled to begin, or the earliest
possible date the proceeding would likely begin if a specific date has
not been established;
(2) The name, address, telephone number, and if applicable, fax
number, or email address of a contact person for both parties to the
proceeding;
(3) Requests must be submitted not later than 90 days before the
date the mediation, arbitration or litigation proceeding in which the
interpretation will be used is scheduled to begin.
(i) If the rules of the court, mediation, or arbitration require
the interpretation prior to the date the proceeding begins, add 90 days
to the number of days required prior to the proceeding. For example, if
a court requires the interpretation 20 days prior to the date the
proceeding begins, you must submit the request 110 days before the
proceeding is scheduled to begin.
(ii) Failure to timely submit a request for a final agency
determination may result in:
(A) FCIC issuing a determination that no interpretation could be
made because the request was not timely submitted; and
(B) Nullification of any agreement or award in accordance with the
applicable Basic Provisions.
(iii) If during the mediation, arbitration, or litigation
proceeding, an issue arises that requires a final agency determination
or an interpretation of procedure or policy provision not codified in
the Code of Federal Regulations, the mediator, arbitrator, judge, or
magistrate must promptly request a final agency determination or an
interpretation of procedure or policy provision not codified in the
Code of Federal Regulations in accordance with Sec. 400.767(a).
[[Page 14033]]
(4) FCIC at its sole discretion may authorize personnel to provide
an oral or written interpretation, as appropriate; and
(5) Any decision or settlement resulting from such mediation,
arbitration, or litigation proceeding before FCIC provides its
interpretation may not be binding on the parties.
(c) If multiple parties are involved and have opposing
interpretations a joint request for a final agency determination or an
interpretation of procedure or policy provision not codified in the
Code of Federal Regulations including both requestor interpretations in
one request is encouraged. If multiple insured persons are parties to
the proceedings, and the request for a final agency determination or an
interpretation of procedure or policy provision not codified in the
Code of Federal Regulations applies to all parties, one request may be
submitted for all insured persons instead of separate requests for each
person. In this case, the information required in this section must be
provided for each person.
Sec. 400.768 FCIC Obligations.
(a) FCIC reserves the right to not provide a final agency
determination or an interpretation of procedure or policy provision not
codified in the Code of Federal Regulations for any request regarding,
or that contains specific factual information to situations or cases,
such as acts or failures to act of any participant under the terms of a
policy, procedure, or any reinsurance agreement.
(1) Regardless of whether or not FCIC accepts a request, FCIC will
not consider specific factual information to situations or cases in any
final agency determination.
(2) FCIC will not consider any examples provided in your
interpretation because those are fact specific and could be construed
as a finding of fact by FCIC. If an example is required to illustrate
an interpretation, FCIC will provide the example in the interpretation.
(b) If, in the sole judgment of FCIC, the request is unclear,
ambiguous, or incomplete, FCIC will not provide a final agency
determination or an interpretation of procedure or policy provision not
codified in the Code of Federal Regulations but notify you within 30
days of the date of receipt by FCIC that the request is unclear,
ambiguous, or incomplete.
(c) If FCIC notifies you that a request is unclear, ambiguous or
incomplete under Sec. 400.768(b), the 90 day time period for FCIC to
provide a response is stopped on the date FCIC notifies you. On the
date FCIC receives a clear, complete, and unambiguous request, FCIC has
the balance of the days remaining in the 90 day period to provide a
response to you. For example, FCIC receives a request for a final
agency determination on January 10. On February 10, FCIC notifies you
the request is unclear. On March 10, FCIC receives a clarified request
that meets all requirements for FCIC to provide a final agency
determination. FCIC has sixty days from March 10, the balance of the 90
day period, to provide a response.
(d) FCIC reserves the right to modify the request for a final
agency determination into an interpretation of procedure or policy
provision not codified in the Code of Federal Regulations as needed if
the request pertains to procedures or uncodified policy provisions and
contains the information required in Sec. 400.767.
(e) FCIC will provide you a written final agency determination or
an interpretation of procedure or policy provision not codified in the
Code of Federal Regulations within 90 days of the date of receipt for a
request that meets all requirements in Sec. 400.767.
(f) If FCIC does not provide a response within 90 days of receipt
of a request, you may assume your interpretation is correct for the
applicable crop year. However, your interpretation shall not be
considered generally applicable and shall not be binding on any other
program participants. Additionally, in the case of a joint request for
a final agency determination or an interpretation of procedure or
policy provision not codified in the Code of Federal Regulations, if
FCIC does not provide a response within 90 days, neither party may
assume their interpretations are correct.
(g) FCIC will publish all final agency determinations as specially
numbered documents on the RMA Web site because they are generally
applicable to all program participants.
(h) FCIC will not publish any interpretation of procedure or policy
provision not codified in the Code of Federal Regulations because they
are only applicable to the parties in the dispute. You are responsible
for providing copies of the interpretation of procedure or policy
provision not codified in the Code of Federal Regulations to all other
parties involved in the proceeding.
(i) When issuing an interpretation, FCIC will not evaluate the
insured, approved insurance provider, agent or loss adjuster as it
relates to the performance of following FCIC policy provisions or
procedures. Interpretations will not include any analysis of whether
the insured, approved insurance provider, agent, or loss adjuster was
in compliance with the policy provision or procedure in question.
Signed in Washington, DC, on March 5, 2015.
Brandon Willis,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 2015-06224 Filed 3-17-15; 8:45 am]
BILLING CODE 3410-08-P