[Federal Register Volume 81, Number 120 (Wednesday, June 22, 2016)]
[Rules and Regulations]
[Pages 40477-40480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14735]



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 Rules and Regulations
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  Federal Register / Vol. 81, No. 120 / Wednesday, June 22, 2016 / 
Rules and Regulations  

[[Page 40477]]



DEPARTMENT OF AGRICULTURE

Federal Crop Insurance Corporation

7 CFR Part 457

[Docket No. FCIC-16-0002]
RIN 0563-AC50


Common Crop Insurance Regulations, Basic Provisions

AGENCY: Federal Crop Insurance Corporation, USDA.

ACTION: Final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Federal Crop Insurance Corporation (FCIC) amends the 
Common Crop Insurance Regulations, Basic Provisions. The intended 
effect of this action is to provide policy changes and to clarify 
existing policy provisions to better meet the needs of policyholders. 
Issues have arisen regarding: The qualifications for double cropping; 
and when it is practical to replant. This rule addresses those issues.

DATES: Effective date: This final rule is effective June 22, 2016.
    Applicability date: The changes are applicable for the 2017 and 
succeeding crop years for all crops with a contract change date on or 
after June 22, 2016, and for the 2018 and succeeding crop years for all 
crops with a contract change date prior to June 22, 2016.
    Comment due date: FCIC will accept written comments on this final 
rule until close of business August 22, 2016. FCIC may consider the 
comments received and may conduct additional rulemaking based on the 
comments.

ADDRESSES: FCIC prefers interested persons submit their comments 
electronically through the Federal eRulemaking Portal. Interested 
persons may submit comments, identified by Docket ID No. FCIC-16-0002, 
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.
    FCIC will post all comments received, including those received by 
mail, without change to http://www.regulations.gov, including any 
personal information provided. Once these comments are posted to this 
Web site, the public can access all comments at its convenience from 
this Web site. 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 interested persons are 
submitting comments electronically through the Federal eRulemaking 
Portal and want to attach a document, FCIC requests that the document 
attachment be in a text-based format. If interested persons 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 the submissions. For questions regarding attaching 
a document that is a scanned Adobe PDF file, please contact the Risk 
Management Agency (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 
entity, such as an association, business, labor union, etc.). 
Interested persons may review the complete User Notice and Privacy 
Notice for Regulations.gov at http://www.regulations.gov/#!privacyNotice.

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

SUPPLEMENTARY INFORMATION: 

Background

    FCIC amends the Common Crop Insurance Regulations (7 CFR part 457) 
by revising 7 CFR 457.8 Common Crop Insurance Regulations, Basic 
Provisions. The changes to the policy made in this rule are applicable 
for the 2017 and succeeding crop years for all crops with a contract 
change date on or after June 22, 2016, and for the 2018 and succeeding 
crop years for all crops with a contract change date prior to June 22, 
2016.
    FCIC is issuing this final rule without opportunity for prior 
notice and comment. The Administrative Procedure Act exempts rules 
``relating to agency management or personnel or to public property, 
loans, grants, benefits, or contracts'' from the statutory requirement 
for prior notice and opportunity for public comment (5 U.S.C. 
553(a)(2)). However, FCIC is providing a 60-day comment period and 
invites interested persons to participate in this rulemaking by 
submitting written comments. FCIC may consider the comments received 
and may conduct additional rulemaking based on the comments.
    The changes to the Common Crop Insurance Regulations, Basic 
Provisions (7 CFR part 457) are as follows:
    (a) Section 1--FCIC is revising the definition of ``practical to 
replant.'' Concerns have been raised regarding the definition of 
``practical to replant'' and the difficulty and inconsistency that can 
occur in administering the practical to replant provisions of the crop 
insurance policy. Approved insurance providers have stated the 
provisions, as written, regarding ``practical to replant'' lead to 
different approved insurance providers reaching differing 
determinations as to whether it is practical to replant in the same 
area. FCIC is revising the definition to provide a clear, known 
deadline for when replanting of the crop is considered to be practical 
and if not replanted, coverage will not be provided for the initial 
crop. The definition provides an exception for adverse weather 
conditions that would either prohibit the physical replanting of the 
crop, or impact seed germination, emergence, and formation of a healthy 
plant.
    (b) Section 15--FCIC is revising section 15 to allow the allocation 
of comingled first and second crop production to the associated crop

[[Page 40478]]

acreage in proportion to the liability for the acreage that was and was 
not double cropped. Some producers have found challenges keeping 
separate records of acreage and production that was and was not double 
cropped because often times the acreage is in the very same field and 
they harvest both first and second crop production at the same time. 
For example, if a producer has two fields in the same unit, or one 
field half of which was first crop acreage and half that was double 
crop acreage, next to each other and on one field they plant wheat, 
harvest the wheat, and plant soybeans while the other field was a 
single crop of soybeans only, they may harvest both soybean fields at 
the same time making it difficult to keep the production separate. This 
change has previously been implemented administratively through MGR-11-
003.
    FCIC is also revising section 15 to allow eligible double cropping 
acres to be based on either, (1) the greatest number of acres double 
cropped in two of the last four crop years in which the first insured 
crop was planted; or (2) the percentage of acres historically double 
cropped in two of the last four crop years in which the first insured 
crop was planted. Current double cropping requirements do not 
adequately recognize changes in growing farm operations or for added 
land. This change will address both land added to an operation, and 
account for multiple crop rotations. For example, if a producer has a 
100-acre farm and has historically double cropped 50 acres planted to 
wheat followed by soybeans (50 percent of acres historically double 
cropped), and the producer purchases and plants an additional 200 acres 
of wheat for a total of 300 acres of planted wheat, the number of acres 
eligible for double cropping would be based on 50 percent, or 150 
acres. If the producer has historically double cropped wheat followed 
by soybeans on some or even all of the acreage, there is a reasonable 
presumption they may continue to do so in the future.
    Previously, changes made to the Federal crop insurance policies 
codified in the Code of Federal Regulations were required to be 
implemented through the rulemaking process. Such action was not 
required by the Administrative Procedures Act because contracts were 
exempt from notice and comment rulemaking and the crop insurance policy 
is a contract. However, a prior Secretary of Agriculture published a 
notice in the Federal Register stating that the Department of 
Agriculture would, to the maximum extent practicable, use the notice 
and comment rulemaking process when making program changes, including 
those involving contracts. FCIC has complied with this notice over the 
subsequent years. Recently, the current Secretary of Agriculture has 
published a notice in the Federal Register rescinding the prior notice, 
thereby making contracts again exempt from the notice and comment 
rulemaking process. This exemption applies to the 30 day notice prior 
to implementation of a rule. Therefore, the policy changes made by this 
final rule are effective upon publication in the Federal Register.

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, subchapter I), the collections of information in 
this rule have been approved by OMB under control number 0563-0053.

E-Government Act Compliance

    FCIC is committed to complying with the E-Government Act of 2002, 
to promote the use of the Internet and other information technologies 
to provide increased opportunities for citizen access to Government 
information and services, and for other purposes.

Unfunded Mandates Reform Act of 1995

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

Executive Order 13132

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

Executive Order 13175

    This rule has been reviewed in accordance with the requirements of 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' Executive Order 13175 requires Federal agencies 
to consult and coordinate with tribes on a government-to-government 
basis on policies that have tribal implications, including regulations, 
legislative comments or proposed legislation, and other policy 
statements or actions that have substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.
    The Federal Crop Insurance Corporation has assessed the impact of 
this rule on Indian tribes and determined that this rule does not, to 
our knowledge, have tribal implications that require tribal 
consultation under E.O. 13175. If a Tribe requests consultation, the 
Federal Crop Insurance Corporation will work with the Office of Tribal 
Relations to ensure meaningful consultation is provided where changes, 
additions and modifications identified herein are not expressly 
mandated by Congress.

Regulatory Flexibility Act

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

[[Page 40479]]

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 2 CFR part 415, subpart C.

Executive Order 12988

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

Environmental Evaluation

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

List of Subjects in 7 CFR Part 457

    Crop insurance, Reporting and recordkeeping requirements.

Final Rule

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

PART 457--COMMON CROP INSURANCE REGULATIONS

0
1. The authority citation for 7 CFR part 457 continues to read as 
follows:

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

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


Sec.  457.8  The application and policy.

* * * * *

Common Crop Insurance Policy

* * * * *
    1. Definitions.
* * * * *
    Practical to replant. Our determination, after loss or damage to 
the insured crop, based on all factors, including, but not limited to 
moisture availability, marketing window, condition of the field, and 
time to crop maturity, that replanting the insured crop will allow it 
to attain maturity prior to the calendar date for the end of the 
insurance period. It will be considered practical to replant within or 
prior to the late planting period, or on or prior to the final planting 
date if no late planting period is applicable, unless we determine it 
is physically impossible to replant the acreage or there is no chance 
of seed germination, emergence, and formation of a healthy plant.
* * * * *
    15. Production Included in Determining an Indemnity and Payment 
Reductions.
* * * * *
    (h) You may receive a full indemnity, or a full prevented planting 
payment for a first insured crop when a second crop is planted on the 
same acreage in the same crop year, if each of the following conditions 
are met, regardless of whether or not the second crop is insured or 
sustains an insurable loss:
    (1) Planting two or more crops for harvest in the same crop year in 
the area is generally recognized by agricultural experts or organic 
agricultural experts;
    (2) The second or more crops are customarily planted after the 
first insured crop for harvest on the same acreage in the same crop 
year in the area;
    (3) Additional coverage insurance offered under the authority of 
the Act is available in the county on the two or more crops that are 
double cropped;
    (4) In the case of prevented planting, the second crop is not 
planted on or prior to the final planting date or, if applicable, prior 
to the end of the late planting period for the first insured crop;
    (5) You provide records, acceptable to us, of acreage and 
production specific to the double cropped acreage proving that:
    (i) You have double cropped acreage in at least two of the last 
four crop years in which the first insured crop was planted; if you 
acquired additional acreage, you may apply the percentage of acres that 
you have previously double cropped to the total acreage now in your 
operation using the following calculation:
    (A) Determine the number of acres of the first insured crop that 
were double cropped in each of the years for which records are provided 
(For example, records are provided showing: 100 acres of wheat planted 
in 2015 and 50 of those acres were double cropped with soybeans; and 
100 acres of wheat planted in 2016 and 70 of those acres were double 
cropped with soybeans);
    (B) Divide each result of section 15(h)(5)(i)(A) by the number of 
acres of the first insured crop that were planted in each respective 
year (In the example above, 50 divided by 100 equals 50 percent of the 
first insured crop acres were double cropped in 2015 and 70 divided by 
100 equals 70 percent were double cropped in 2016);
    (C) Add the results of section 15(h)(5)(i)(B) and divide by the 
number of years the first insured crop was double cropped (In the 
example above, 50 plus 70 equals 120 divided by 2 equals 60 percent); 
and
    (D) Multiply the result of 15(h)(5)(i)(C) by the number of insured 
acres of the first insured crop (In the example above, 60 percent of 
the wheat acres insured in 2017 and 60 percent of the second crop acres 
insured in 2017 are eligible for double cropping history);


or

    (ii) The applicable acreage was double cropped (by one or more 
other producers, and the producer(s) will allow you to use their 
records) for at least two of the last four crop years in which the 
first insured crop was grown on it; and
    (6) If you do not have records of acreage and production specific 
to the double cropped acreage, as required in section 15(h)(5), but 
instead have records that combine production from acreage you double 
cropped with records of production you did not double crop, we will 
allocate the first and second crop production to the specific acreage 
in proportion to the liability for the acreage that was and was not 
double cropped.
    (i) If you provided acceptable records in accordance with section 
15(h), your double cropping history is based on the acres historically 
cropped:
    (1) If the records you provided are from acreage you double cropped 
in at least two of the last four crop years, you may apply your history 
of double cropping to any acreage of the insured crop in the county 
(e.g., if you have double cropped 100 acres of wheat and soybeans in 
the county and you acquire an additional 100 acres in the county, you 
can apply that history of double cropped acreage to any of the 200 
acres

[[Page 40480]]

in the county as long as it does not exceed 100 acres); or
    (2) If the records you provided are from acreage that one or more 
other producers double cropped in at least two of the last four crop 
years, you may only use the history of double cropping for the same 
physical acres from which double cropping records were provided (e.g., 
if a neighbor has double cropped 100 acres of wheat and soybeans in the 
county and you acquire your neighbor's 100 double cropped acres and an 
additional 100 acres in the county, you can only apply your neighbor's 
history of double cropped acreage to the same 100 acres that your 
neighbor double cropped).
* * * * *

    Signed in Washington, DC, on June 16, 2016.
Brandon Willis,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 2016-14735 Filed 6-21-16; 8:45 am]
 BILLING CODE 3410-08-P