[Federal Register Volume 84, Number 178 (Friday, September 13, 2019)]
[Rules and Regulations]
[Pages 48518-48537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19932]



[[Page 48517]]

Vol. 84

Friday,

No. 178

September 13, 2019

Part V





Department of Agriculture





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Federal Crop Insurance Corporation





7 CFR 460





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Farm Service Agency

7 CFR 760





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Commodity Credit Corporation

7 CFR 1416





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Agricultural Disaster Indemnity Programs; Final Rule

  Federal Register / Vol. 84 , No. 178 / Friday, September 13, 2019 / 
Rules and Regulations  

[[Page 48518]]


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DEPARTMENT OF AGRICULTURE

Federal Crop Insurance Corporation

7 CFR Part 460

Farm Service Agency

7 CFR Part 760

Commodity Credit Corporation

7 CFR Part 1416

RIN 0560-AI52
[Docket ID FSA-2019-0012]


Agricultural Disaster Indemnity Programs

AGENCY: Federal Crop Insurance Corporation, Commodity Credit 
Corporation, and Farm Service Agency, USDA.

ACTION: Final rule.

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SUMMARY: This rule establishes provisions for providing agricultural 
disaster assistance as authorized by the Additional Supplemental 
Appropriations for Disaster Relief Act, 2019 (Disaster Relief Act). The 
Wildfire and Hurricane Indemnity Program Plus (WHIP+) will provide 
payments to eligible producers who suffered eligible crop, tree, bush, 
and vine losses resulting from hurricanes, floods, tornadoes, typhoons, 
volcanic activity, snowstorms, and wildfires that occurred in the 2018 
and 2019 calendar years. The On-Farm Storage Loss Program will provide 
payments to eligible producers who suffered uncompensated losses of 
harvested commodities stored in farm structures as a result of 
hurricanes, floods, tornadoes, typhoons, volcanic activity, snowstorms, 
and wildfires that occurred in the 2018 and 2019 calendar years. The 
Wildfire and Hurricane Indemnity Program (WHIP) Milk Loss Program will 
provide payments to eligible dairy operations for milk that was dumped 
or removed without compensation from the commercial milk market due to 
hurricanes, floods, tornadoes, typhoons, volcanic activity, snowstorms, 
and wildfires that occurred in the 2018 and 2019 calendar years. This 
rule specifies the administrative provisions, eligibility requirements, 
application procedures, and payment calculations for WHIP+, On-Farm 
Storage Loss Program, and WHIP Milk Loss Program. As required by the 
Disaster Relief Act, this rule also expands eligibility for 2017 WHIP 
to include losses incurred from Tropical Storm Cindy, losses of peach 
and blueberry crops in calendar year 2017 due to extreme cold, and 
blueberry productivity losses in calendar year 2018 due to extreme cold 
and hurricane damage in calendar year 2017. This rule updates the 
regulations for the Tree Assistance Program (TAP) to provide assistance 
for eligible orchardists or nursery tree growers of pecan trees with a 
tree mortality rate that exceeds 7.5 percent (adjusted for normal 
mortality) and is less than 15 percent (adjusted for normal mortality) 
for losses incurred in calendar year 2018. Prevented planting 
supplemental disaster payments will provide support to producers who 
were prevented from planting eligible crops for the 2019 crop year due 
to excess precipitation, flood, storm surge, tornado, volcanic 
activity, tropical depressions, hurricanes, and cyclones in the 2019 
calendar year. This rule specifies the administrative provisions, 
eligibility requirements, and payment calculations for prevented 
planting supplemental disaster payments.

DATES: 
    Effective date: September 13, 2019.
    Comment date: We will consider comments on the Paperwork Reduction 
Act that we receive by: November 12, 2019.

ADDRESSES: We invite you to submit comments on this rule. In your 
comment, specify RIN [0560-AI52], and include the volume, date, and 
page number of this issue of the Federal Register. You may submit 
comments by either of the following methods:
     Federal Rulemaking Portal: Go to http://www.regulations.gov and search for Docket ID FSA-2019-0012. Follow the 
instructions for submitting comments.
     Mail: Director, SND, FSA, US Department of Agriculture, 
1400 Independence Avenue SW, Stop 0522, Washington, DC 20250-0522.
    Comments will be available for viewing online at http://www.regulations.gov. In addition, comments will be available for public 
inspection at the above address during business hours from 8 a.m. to 5 
p.m., Monday through Friday, except holidays.

FOR FURTHER INFORMATION CONTACT: For WHIP+, 2017 WHIP, and TAP, Tona 
Huggins; telephone: (202) 720-7641; [email protected]. For On-Farm 
Storage Loss, Shayla Watson-Porter; telephone: (202) 690-2350; or 
email: [email protected]. For WHIP Milk Loss, Douglas E. 
Kilgore: telephone: (202) 720-9011; or email: 
[email protected]. For Crop Insurance, Francie Tolle; 
telephone: (816) 926-7829; or email: [email protected]. Persons 
with disabilities who require alternative means for communication 
should contact the USDA Target Center at (202) 720-2600 (voice).

SUPPLEMENTARY INFORMATION:

Background

    The Additional Supplemental Appropriations for Disaster Relief Act, 
2019 (Disaster Relief Act; Pub. L. 116-20) provides $3,005,442,000, 
available until December 31, 2020, for disaster assistance for 
necessary expenses related to losses of crops (including milk, on-farm 
stored commodities, and harvested adulterated wine grapes), trees, 
bushes, and vines, as a consequence of hurricanes, floods, tornadoes, 
typhoons, volcanic activity, snowstorms, and wildfires occurring in 
calendar years 2018 and 2019. The Secretary has directed the Farm 
Service Agency (FSA) to provide assistance for these losses through the 
following programs:
     WHIP+ for losses to eligible crops, trees, bushes, and 
vines;
     On-Farm Storage Loss Program; and
     WHIP Milk Loss Program.
    The Disaster Relief Act authorizes TAP to cover eligible 
orchardists or nursery tree growers of pecan trees with a tree 
mortality rate that exceeds 7.5 percent (adjusted for normal mortality) 
and is less than 15 percent (adjusted for normal mortality) for losses 
incurred during the period beginning January 1, 2018, and ending 
December 31, 2018.
    The Disaster Relief Act also expanded 2017 WHIP, authorized by the 
Bipartisan Budget Act of 2018 (BBA; Pub. L. 115-123), to cover losses 
due to Tropical Storm Cindy, losses of peach and blueberry crops in 
calendar year 2017 due to extreme cold, and blueberry productivity 
losses in calendar year 2018 due to extreme cold and hurricane damage 
in calendar year 2017.
    Grazing and livestock losses are covered by existing programs that 
are funded by the Commodity Credit Corporation (CCC) and administered 
by FSA, such as the Livestock Indemnity Program (LIP), Emergency 
Assistance for Livestock, Honeybees, and Farm-Raised Fish Program 
(ELAP) and the Livestock Forage Disaster Program (LFP), and therefore 
are not covered by additional programs under this rule, as such would 
be a duplication of benefits. TAP provides cost-share for replanting 
and rehabilitation of eligible trees, while 2017 WHIP and WHIP+ provide 
payments based on the loss of value of the tree, bush, or vine itself. 
Therefore, eligible participants who suffered tree, bush, and vine 
losses may receive both payment under both TAP and 2017 WHIP or WHIP+ 
for the same acreage

[[Page 48519]]

because they pay for different losses, if eligibility conditions are 
met. TAP is available only for expenses actually incurred by the 
eligible orchardist or nursery tree grower that are not covered, 
reimbursed, or paid for by anyone other than the eligible orchardist or 
nursery tree grower.
    The On-Farm Storage Loss Program provides payments to eligible 
producers who suffered losses of harvested commodities, including hay, 
stored in on-farm structures as a result from hurricanes, floods, 
tornadoes, typhoons, volcanic activity, snowstorms, and wildfires that 
occurred in the 2018 and 2019 calendar years.
    The WHIP Milk Loss Program allows dairy operations the ability to 
receive payments for milk that was dumped or removed without 
compensation from the commercial milk market due to qualifying weather 
events that inhibited the delivery of milk including, but not limited 
to, the storage of milk due to a power outage or that caused impassable 
roads which prevented the milk hauler access to the farm for the 2018 
and 2019 calendar years.
    The Federal Crop Insurance Corporation (FCIC) provides additional 
assistance for prevented planting for producers with crop insurance, 
using the higher of the projected price or harvest price where 
applicable. FCIC will establish prevented planting supplemental 
disaster payments, as administered by RMA, to provide assistance to 
producers who were prevented from planting eligible 2019 crop year 
crops in the 2019 calendar year due to specified causes of loss.
    Additionally, some of the available funding is being provided to 
certain States through block grants to address specific losses in those 
states. This final rule only covers disaster assistance for necessary 
expenses related to the programs mentioned above and does not discuss 
the terms and conditions of the block grants.
    For clarity, throughout this final rule, the word producer is used 
to refer to those persons or legal entities who have suffered losses 
and can apply for assistance; the term participant is used for a 
producer who applied and has been determined eligible.

WHIP+

    WHIP+ provides assistance to eligible producers who suffered an 
eligible loss to crops, trees, bushes, and vines or prevented planting 
due to a qualifying disaster event, which includes hurricanes, floods, 
tornadoes, typhoons, volcanic activity, snowstorms, and wildfires that 
occurred in the 2018 or 2019 calendar year, and conditions related to 
those disaster events, such as excessive rain, high winds, mudslides, 
heavy smoke, and related conditions. WHIP+ provides assistance for 
yield-based and value loss crops that suffered losses prior to harvest. 
Losses of harvested crops while in storage will be covered under the 
On-Farm Storage Loss Program, and milk that was dumped due to the 
weather events under WHIP Milk Loss Program will be discussed later in 
this rule. In general, WHIP+ will be administered in a similar way as 
the 2017 WHIP, except for certain changes explained in this rule.
    WHIP+ payments for crop losses cover only production losses; they 
do not cover quality losses except for qualifying losses to adulterated 
wine grapes. Eligible crops include those for which crop insurance or 
Noninsured Disaster Assistance Program (NAP) coverage is available, 
excluding crops intended for grazing. WHIP+ will provide assistance for 
Florida citrus tree losses, which were excluded from 2017 WHIP but were 
covered by a grant program administered by the State of Florida.
    WHIP+ will be available for eligible farms located in counties that 
received a qualifying Presidential Emergency Disaster Declaration or 
Secretarial Disaster Designation due to one or more of the qualifying 
disaster events or a related condition. Only producers in primary 
disaster counties qualify for WHIP+ based on the declaration or 
designation. However, producers in counties that did not receive a 
qualifying declaration or designation may still apply for WHIP+, but 
they must also provide supporting documentation to establish that the 
crop was directly affected by a qualifying disaster event.
    Due to the variety of eligible crops and the timing of the 
qualifying disaster events, eligible crops under WHIP+ include those 
that were intended for harvest in the 2018, 2019, and 2020 crop years. 
In some cases, a loss from a qualifying disaster event under WHIP+ may 
have also been eligible for 2017 WHIP if the event was considered an 
eligible related condition; in those cases, a producer may not receive 
payment under both programs and such producer cannot return their 2017 
WHIP payment to become eligible for payment under WHIP+.
    As under 2017 WHIP, the payment limitation for WHIP+ is determined 
by the person's or legal entity's average adjusted gross farm income 
(income from activities related to farming, ranching, or forestry). 
Specifically, a person or legal entity, other than a joint venture or 
general partnership, cannot receive, directly or indirectly, more than 
$125,000 in payments under WHIP+, if their average adjusted gross farm 
income is less than 75 percent of their average of their adjusted gross 
income (AGI) for 2015, 2016, and 2017. The $125,000 payment limitation 
is a single total combined limitation for payments for all WHIP+ 
payments received for the 2018, 2019, and 2020 crop years. If at least 
75 percent of the person or legal entity's average AGI is derived from 
farming, ranching, or forestry related activities and the participant 
provides the required certification and documentation, as discussed 
below, the person or legal entity, other than a joint venture or 
general partnership, is eligible to receive, directly or indirectly, up 
to $250,000 per crop year in WHIP+ payments, with a total combined 
payment limitation for the 2018, 2019, and 2020 crop years of $500,000. 
The relevant tax years for establishing a producer's AGI and percentage 
derived from farming, ranching, or forestry related activities for 
WHIP+ are 2015, 2016, and 2017. This means that the average AGI will be 
the average of AGI for the 2015, 2016 and 2017 tax years regardless if 
a WHIP+ participant has losses in one or more crop years. For example, 
if a WHIP+ participant only suffered eligible losses in the 2018 crop 
year, their average AGI will be calculated based on their 2015, 2016 
and 2017 tax years, the same as if a participant had losses in all 
three eligible crop years, 2018, 2019 and 2020.
    To receive more than $125,000 in WHIP+ payments, applicants must 
submit form FSA-896, Request for an Exception to the WHIP Payment 
Limitation of $125,000, accompanied by a certification from a certified 
public accountant or attorney as to that person or legal entity's 
certification. If an applicant requesting the $250,000 per crop year 
payment limitation is a legal entity, all members of that entity must 
also complete FSA-896 and provide the required certification according 
to the direct attribution provisions in Sec.  1400.105, ``Attribution 
of Payments.'' If a legal entity would be eligible for the $250,000 per 
crop year payment limitation based on the legal entity's average AGI 
from farming, ranching, or forestry related activities but a member of 
that legal entity either does not complete an FSA-896 or is not 
eligible for the $250,000 per crop year payment limitation, the payment 
to the legal entity will be reduced for the limitation applicable to 
the share of the WHIP+ payment attributed to that member.
    Applicable general eligibility requirements, including 
recordkeeping

[[Page 48520]]

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

WHIP+ Application Process

    Producers must submit WHIP+ applications to their administrative 
FSA county office by the deadline that will be announced by the FSA 
Deputy Administrator for Farm Programs. A complete WHIP+ application 
consists of:
     FSA-894, Wildfires and Hurricanes Indemnity Program + 
Application;
     FSA-895, Crop Insurance and/or NAP Coverage Agreement;
     FSA-896, Request for an Exception to the WHIP Payment 
Limitation of $125,000, if 75 percent or more of an applicant's average 
AGI is from farming, ranching, or forestry related activities and the 
applicant wants to be eligible to receive WHIP+ payments of more than 
$125,000, up to the $250,000 per crop year payment limitation, with an 
overall WHIP+ limit of $500,000; and
     FSA-897, Actual Production History and Approved Yield 
Record (WHIP+ Select Crops Only), for applicants requesting payments 
for select crops.
    An applicant must submit a separate FSA-894 for each crop year for 
which benefits are requested. Persons and legal entities who do not 
submit FSA-896 and a certification from a CPA or attorney are eligible 
only for the lower payment limitation of $125,000. If not already on 
file with FSA, applicants must also submit AD-1026, Highly Erodible 
Land Conservation (HELC) and Wetland Conservation (WC) Certification; 
CCC-902, Farm Operating Plan for Payment Eligibility; and a report of 
acreage on FSA-578, Report of Acreage, or in another format acceptable 
to FSA for all acres of each crop for which WHIP+ payments are being 
requested. Applicants must also submit verifiable or reliable crop 
records if not already on file for crop insurance or NAP purposes; 
producers who do not have verifiable or reliable records will have 
WHIP+ payments determined based on the lower of either the actual loss 
certified by the producer and determined acceptable by FSA or the 
county expected yield and county disaster yield, which is the 
production that a producer would have been expected to make based on 
the eligible disaster conditions in the county, as determined by the 
FSA county committee. Yield means unit of production, measured in 
bushels, pounds, or other unit of measure, per area of consideration, 
usually measured in acres. In no case will WHIP+ payments be issued for 
losses that cannot be determined to have occurred to the satisfaction 
of FSA or for losses for which a notice of loss was previously 
disapproved by FSA, RMA, or an Approved Insurance Provider selling and 
servicing federal crop insurance policies unless that notice of loss 
was disapproved solely because it was filed after the applicable 
deadline.

WHIP+ Payments

    In general, all WHIP+ payments for crop production losses will take 
into consideration the difference between the expected value of the 
crop and the actual value of the crop as a result of the applicable 
disaster events. The value is determined by FSA using crop insurance or 
NAP prices. As mandated by the Disaster Relief Act, the price used to 
calculate a WHIP+ payment for a crop for which the producer obtained a 
revenue plan of insurance is the greater of the projected price or the 
harvest price determined by FCIC. WHIP+ payments for tree, bush, and 
vine losses will be calculated the same as under 2017 WHIP based on the 
loss of value of the trees, bushes, and vines that were destroyed or 
damaged due to the qualifying disaster event.
    Per the Disaster Relief Act, payments under WHIP+ cannot exceed 90 
percent of the total losses. Therefore, a WHIP+ factor will be applied 
to reduce the participant's payment to ensure that total WHIP+ payments 
are no more than 90 percent of the total losses by all WHIP+ 
participants, as described below.
    The specific payment calculations that will be used for each type 
of commodity are detailed below. Each of the calculations includes 
numerous elements to determine the accurate and equitable amount to pay 
for the various losses. Some of the data will come from the 
applications while other numbers used in the calculations will be 
determined by FSA. In general, the calculations are consistent with 
previous ad hoc disaster assistance programs administered by FSA, 
including 2017 WHIP.
    Participants with crop insurance may receive WHIP+, crop insurance 
indemnity,\1\ and supplementary disaster payments; however, as mandated 
by the Disaster Relief Act, the total amount of those payments combined 
cannot exceed 90 percent of the total losses for all 2018-2019 WHIP+ 
participants with crop insurance. The total amount of payments received 
under WHIP+ and the Noninsured Crop Disaster Assistance Program (NAP; 7 
U.S.C. 7333) combined cannot exceed 90 percent of the total losses for 
all 2018-2019 WHIP+ participants with NAP coverage. Also, as required 
by the Disaster Relief Act, the total amount of payments received under 
WHIP+ cannot exceed 70 percent of the total losses for all 2018-2019 
participants without crop insurance or NAP coverage.
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    \1\ Crop insurance indemnity payments are those made under the 
Federal Crop Insurance Act (FCIA; 7 U.S.C. 1501-1524).
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    As under 2017 WHIP, a payment factor (the ``WHIP+ factor'') will be 
applied based on the level of crop insurance coverage or NAP coverage a 
participant obtained for a crop. The coverage level is the percentage 
determined by multiplying the elected yield percentage for the crop 
year under a crop insurance policy or NAP coverage by the elected price 
percentage. Participants who elected higher levels of crop insurance or 
NAP coverage will receive a higher level of compensation from the 
combination of the WHIP+ payment amount plus the crop insurance 
indemnity or NAP payment, as compared to a participant who elected a 
lower level of crop insurance or NAP coverage. As detailed in the 
following table, the WHIP+ factors will be between 70 percent, for 
uninsured crops, and 95 percent, for crops for which a producer 
obtained greater than an 80 percent crop insurance coverage level.

------------------------------------------------------------------------
                                                                 WHIP+
                                                                payment
                       Coverage level                           factor
                                                               (percent)
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No crop insurance or No NAP coverage........................          70
Catastrophic coverage.......................................          75
More than catastrophic coverage but less than 55 percent....        77.5
At least 55 percent but less than 60 percent................          80
At least 60 percent but less than 65 percent................        82.5
At least 65 percent but less than 70 percent................          85
At least 70 percent but less than 75 percent................        87.5
At least 75 percent but less than 80 percent................        92.5
At least 80 percent.........................................          95
------------------------------------------------------------------------

    Total WHIP+ payments issued to all participants will not exceed 90 
percent of their collective losses, as required by the Disaster Relief 
Act. Therefore, including payments to individual participants based on 
a WHIP+ payment

[[Page 48521]]

factor of 95 percent, total WHIP+ payments cannot exceed 90 percent of 
the value of total losses.

WHIP+ Payment Calculation for Crop Losses

    WHIP+ payments for yield-based crop losses will be calculated based 
on all acreage of the crop in a unit. Eligible acreage includes 
prevented planting acreage for participants without crop insurance, 
therefore, the eligible acreage excludes 2019 crop year prevented 
planting acres of insured crops. Disaster assistance for 2019 crop year 
insured prevented planting acreage will be provided through prevented 
planting supplemental disaster payments as explained in this rule. The 
eligible crop acres will be multiplied by the WHIP+ yield, the price 
for the crop, and the WHIP+ factor, and reduced by the participant's 
production multiplied by the price, and that result will be multiplied 
by the participant's share and reduced by the gross insurance indemnity 
or NAP payment already received by that producer for the same crop 
year, any salvage value, and the amount of any payment received under 
the Florida Citrus Recovery Block Grant Program for future economic 
losses. Additional adjustments will be applied to the WHIP+ payment 
calculation based on whether the crop was prevented from planted or 
unharvested to account for expenses that were not incurred.
    As under 2017 WHIP, the WHIP+ yield is the approved yield based on 
the producer's actual production history (APH) for insured and NAP-
covered crops, or the county expected yield for uninsured crops without 
NAP coverage and participants in Puerto Rico. Producers of select 
uninsured crops determined by the Deputy Administrator for Farm 
Programs may be provided the opportunity to submit records to establish 
their yield rather than use the county expected yield; those crops will 
be announced and publicized by FSA, and payments for those producers 
who choose not to submit those records will be based on the county 
expected yield.
    FSA will adjust production of eligible adulterated wine grapes for 
quality deficiencies due to qualifying disaster events. Wine grapes are 
eligible for production adjustment only if adulteration occurred prior 
to harvest and as a result of a qualifying disaster event or as a 
result of a related condition (such as application of fire retardant). 
Losses due to all other causes of adulteration (such as addition of 
artificial flavoring or chemicals for economic purposes) are not 
eligible for WHIP+. Production will be eligible for quality adjustment 
if, due to a qualifying disaster event, it has a value of less than 75 
percent of the average market price of undamaged grapes of the same or 
similar variety. Eligible wine grape production will be reduced by 
dividing the value per ton of the damaged grapes by the value per ton 
for undamaged grapes, and then multiplying the result by the number of 
tons of the eligible damaged grapes. Participants requesting payments 
for losses to adulterated wine grapes must submit verifiable sales 
tickets that document that the reduced price received was due to 
adulteration due to a qualifying disaster event. For adulterated wine 
grapes that have not been sold, participants must submit verifiable 
records obtained by testing or analysis to establish that the wine 
grapes were adulterated due to a qualifying disaster event and the 
price they would receive due to adulteration.
    The participant's production for the crop year which suffered the 
loss (2018, 2019, or 2020, depending on the specific crop and when it 
would have been harvested) is based on their verifiable or reliable 
production records for that crop year. Reliable production records 
means evidence provided by the participant that is used to substantiate 
the amount of production reported when verifiable records are not 
available, including copies of receipts, ledgers of income, income 
statements of deposit slips, register tapes, invoices for custom 
harvesting, and records to verify production costs, contemporaneous 
measurements, truck scale tickets, and contemporaneous diaries that are 
determined acceptable by the FSA county committee. These records may 
already be on file if the crop was covered by crop insurance or NAP. If 
not already on file, or if the participant believes that RMA or NAP 
records are inaccurate or incomplete, the participant is responsible 
for providing verifiable or reliable records as specified in Sec.  
760.1512. Participants who do not have verifiable or reliable records 
will have their payments limited to the lower of either:
     The actual loss certified by the producer and determined 
acceptable by FSA, or
     The county disaster yield, as established by the FSA 
county committee.
    Assessing loss for value loss crops, such as ornamental nursery and 
aquaculture, is significantly different than for yield-based crops. The 
participant's inventory of a typical value loss crop may fluctuate from 
week to week, sometimes rapidly, in the course of normal business 
operations for reasons that may be unrelated to a disaster. As a 
result, WHIP+ payments for value loss crops will be based on inventory 
before and after the qualifying disaster event.
    WHIP+ payments for value loss crops will be based on the field 
market value of the crop before and after the qualifying disaster 
event. Specifically, payments for value loss crops will be calculated 
using the field market value of the crop before the disaster multiplied 
by the WHIP+ factor, reduced by the sum of the field market value after 
the disaster and the value of losses due to ineligible causes of loss, 
multiplied by the participant's share, reduced by the gross insurance 
indemnity or NAP payment amount and salvage value of the crop.
    NAP value loss and tropical crop eligibility provisions in 7 CFR 
part 1437 apply to WHIP+ for value loss and tropical crops. Nursery 
stock of trees, bushes, and vines are considered value loss crops 
rather than a tree, bush, or vine loss for WHIP+ payment calculations.

WHIP+ Payment Calculation for Tree, Bush, and Vine Losses

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

[[Page 48522]]

    The FSA county committee will adjust the number of damaged and 
destroyed trees, bushes, or vines, if it determines that the number of 
damaged or destroyed trees, bushes, or vines certified by the 
participant is inaccurate.

WHIP+ Requirement To Purchase Future Crop Insurance or NAP Coverage

    The Disaster Relief Act requires all participants who receive WHIP+ 
payments to purchase crop insurance or NAP coverage for the next 2 
available crop years. Due to potential conflicts or short time periods 
between WHIP+ sign-up dates and crop insurance and NAP application 
closing dates, FSA is requiring WHIP+ participants to obtain crop 
insurance or NAP for the next 2 available consecutive crop years after 
the crop year for which WHIP+ payments are paid, with the latest year 
for meeting compliance with this provision being the 2023 crop year. In 
other words, if the 2 consecutive years of coverage are not met by 2023 
coverage year, the participant is ineligible for and must refund WHIP+ 
payments. Participants must obtain crop insurance or NAP, as may be 
applicable, at the 60 percent coverage level or higher. Unlike 2017 
WHIP, WHIP+ does not require participants receiving payment for trees, 
bush, or vine losses to obtain a plan of insurance for those trees, 
bushes, or vines; only participants who receive payment for crop losses 
under WHIP+ must purchase crop insurance for the applicable years.
    There are situations where a WHIP+ participant does not need to 
meet any AGI limit for the WHIP+ payment, if for example, the WHIP+ 
payment is $125,000 or less. Additionally, there may be situations for 
which crop insurance is not available for a specific crop and the 
Disaster Relief Act requires that a WHIP+ participant obtain NAP 
coverage. Section 1001D of the Food Security Act of 1985 (1985 Farm 
Bill) provides that a person or entity with AGI in amount greater than 
$900,000 is not eligible to participate in NAP. Accordingly, in order 
to reconcile this restriction in the 1985 Farm Bill and the Disaster 
Relief Act's requirement to obtain NAP or crop insurance coverage, 
WHIP+ participants may meet the Disaster Relief Act's purchase 
requirement by purchasing Whole-Farm Revenue Protection crop insurance 
coverage, if eligible, or they may pay the applicable NAP service fee 
and premium for the 60 percent coverage level despite their 
ineligibility for a NAP payment. In other words, the service fee and 
premium must be paid even though no NAP payment may be made because the 
AGI of the person or entity exceeds the 1985 Farm Bill limitation.
    The crop insurance and NAP requirements are specific to the crop 
and county (physical location county for insurance and administrative 
county for NAP) for which WHIP+ payments are paid. This means that a 
producer who receives a WHIP+ payment for a crop in a county is 
required to purchase crop insurance or NAP coverage for the crop in the 
county for which the producer was issued a WHIP+ payment. Producers who 
receive a WHIP+ payment on a crop in a county and who have the crop or 
crop acreage in subsequent years, as provided in this rule, and who 
fail to obtain the 2 years of crop insurance or NAP coverage must 
refund all WHIP+ payments for that crop in that county with interest 
from the date of disbursement. This is a condition of payment 
eligibility specified by Disaster Relief Act and is therefore not 
subject to partial payment eligibility or other types of equitable 
relief. Producers who were paid under WHIP+ on a crop in a county but 
do not plant that crop in a subsequent year are not subject to the crop 
insurance or NAP purchase requirement.

2017 WHIP

    The Disaster Relief Act expands eligible losses under 2017 WHIP to 
include losses of crops, trees, bushes, and vines due to Tropical Storm 
Cindy, which were not previously included under the BBA. It also 
expands 2017 WHIP to cover losses of peach and blueberry crops in 
calendar year 2017 due to extreme cold, and blueberry productivity 
losses in calendar year 2018 due to extreme cold and hurricane damage 
in calendar year 2017. The 2017 WHIP provisions were published in the 
Federal Register on July 18, 2018 (83 FR 33795); this rule amends 7 CFR 
760.1516, subpart O to incorporate the additional changes to 2017 WHIP 
mandated by the Disaster Relief Act.
    Producers who are eligible for 2017 WHIP under these provisions 
must submit a complete application according to Sec.  760.1510 by the 
deadline announced by FSA to apply for a 2017 WHIP payment for these 
losses. The BBA requires all participants who receive 2017 WHIP 
payments to purchase crop insurance for the next 2 available crop 
years; therefore, producers receiving 2017 WHIP payments under the 
Disaster Relief Act's expansion to 2017 WHIP eligibility must obtain 
crop insurance or NAP for the next 2 available consecutive crop years, 
with the latest year for meeting compliance with this provision being 
the 2023 crop year. In other words, if the 2 consecutive years of 
coverage are not met by 2023 coverage year, the participant is 
ineligible for and must refund any 2017 WHIP payments.

TAP

    The Disaster Relief Act provided coverage under TAP (7 CFR 1416, 
subpart E) for payments for 2018 pecan tree losses for growers who 
suffered a pecan stand mortality loss that exceeds 7.5 percent, as 
adjusted for normal mortality, (rather than a mortality loss that 
exceeds 15 percent) due to an eligible natural disaster. The provisions 
only apply to producers with 2018 calendar year mortality losses that 
exceed 7.5 percent, as adjusted for normal mortality. Similar loss 
thresholds were established for pecan trees under the Consolidated 
Appropriations Act, 2018; however, that funding only covered losses 
from January 1, 2017, until December 31, 2017. These provisions are 
specific and not open to interpretation; therefore, FSA has already 
implemented these provisions. This rule updates Sec. Sec.  1416.400 and 
1400.403 to reflect these changes. Pecan growers who suffered eligible 
2017 losses can apply for these benefits through the deadline announced 
by FSA. Pecan growers who had more than a 15 percent mortality loss, as 
adjusted for normal mortality, are already eligible under regular 2018 
TAP provisions and are not affected by this change. With the exception 
of the amended mortality rate required for eligibility, all other TAP 
provisions in 7 CFR part 1416 apply.

On-Farm Storage Loss Program

    The On-Farm Storage Loss Program will provide payments to eligible 
producers who suffered losses of stored commodities, including hay, 
while such commodities were stored in on-farm structures as a result 
from hurricanes, floods, tornadoes, typhoons, volcanic activity, 
snowstorms, and wildfires that occurred in the 2018 and 2019 calendar 
years.
    Harvested commodities must have been stored in structures that will 
be determined eligible by the Deputy Administrator for Farm Programs, 
which under normal circumstances, would have protected and maintained 
the quality of the commodity for an extended period of time--from 
harvest to marketing. The damages incurred must have resulted directly 
from a disaster related weather event which rendered the commodity 
useless and non-merchantable.
    Persons and legal entities are subject to the same payment 
limitation and AGI

[[Page 48523]]

requirements as WHIP+. Eligible producers will certify to their loss at 
the local service center. Producers of comingled commodities may submit 
joint applications to cover all losses.
    Payments will be calculated by multiplying the loss quantity times 
a price determined by the Secretary then multiplied by a 75 percent 
factor. Payments will be issued after sign-up until February 2020 for 
losses incurred during calendar years 2018 and 2019.

WHIP Milk Loss Program

    The WHIP Milk Loss Program will provide payments to dairy 
operations for milk that was dumped or removed without compensation 
from the commercial milk market due to the weather events.
    The WHIP Milk Loss base period is the full month of milk production 
before the dumping or removal of milk occurred. Information from the 
base period provides the number of cows in the dairy operation, the 
pounds marketed for the month, and the number of days in the month. 
From this the average daily milk production is calculated and used with 
the price information to calculate the WHIP Milk Loss Program 
indemnity.
    The claim period is for the part or whole month the dairy operation 
was off the commercial market. The claim eligible period begins the 
date the milk was removed or dumped and the end period is the date the 
dairy operation officially started marketing milk. The dairy operation 
will provide the milk marketing statement for the month that the milk 
dumping occurred. This will verify the days the dairy operation did not 
commercially produce milk. For the WHIP Milk Loss Program, the duration 
of claims is limited to 30 days per year for 2018 and 2019.
    The dairy operation's fair market value of the dumped milk is what 
it would have been had the dairy operation commercially marketed the 
milk. The dairy operation's milk marketing statement from the affected 
month verifies the value calculation. The WHIP Milk Loss Program 
indemnity is calculated using the determined pounds of milk loss and 
using the pay price from the milk marketing statement including the 
monthly deductions for trucking and promotion. The net payment amount 
is multiplied by 75 percent to determine the WHIP Milk Loss Program 
payment.
    Dairy operations that apply for the WHIP Milk Loss Program will 
provide, at application, a detailed personal letter of the 
circumstances of the milk removal, including the specifics of the 
weather event, what transportation limitations occurred, the milk 
marketing statement for the affected month, and any information on what 
was done with the removed milk production. Any other pertinent 
information should be included to provide FSA the needed information to 
determine eligibility for the WHIP Milk Loss Program. FSA County 
Offices will work with dairy operations in completing the WHIP Milk 
Loss Program application.
    Persons and legal entities are subject to the same payment 
limitation and AGI requirements as WHIP+. Payments will be issued after 
sign-up until February 2020 for losses that incurred during calendar 
years 2018 and 2019.

Prevented Planting Supplemental Disaster Payments

    Prevented planting supplemental disaster payments provide 
assistance to producers who were prevented from planting eligible crops 
due to excess precipitation, flood, storm surge, tornado, volcanic 
activity, tropical depressions, hurricanes, and cyclones in the 2019 
crop year. In general, prevented planting supplemental disaster 
payments will be administered in the same way as other Federal crop 
insurance programs, except for certain changes explained in this rule.
    Producers who purchased a crop insurance policy and were prevented 
from planting due to one of the specified causes of loss will be 
eligible for prevented planting supplemental disaster payments if the 
insured crop is eligible for such payments. Eligible crops are 2019 
crop-year crops with a final planting date that falls in the 2019 
calendar year.
    Prevented planting supplemental disaster payments for prevented 
planting losses will be calculated based on all qualifying prevented 
planting payments received for insured crops. For insured crops with a 
plan of insurance that provides revenue protection, the qualifying 
prevented planting payments will be multiplied by a factor measuring 
yield and price loss. For all other crops, the qualifying prevented 
planting payments will be multiplied by a factor based on yield only. 
Adjustments will be made in the case the qualifying prevented planting 
payments after prevented planting supplemental disaster payments are 
issued. Additional adjustments may apply if the qualifying prevented 
planting payments are reduced due to errors or other irregularities. 
The payment limitations required under the WHIP+ program are not 
applicable for prevented planting supplemental disaster payments. The 
values used for the factors will be 15 percent for those producers with 
revenue protection except those who select the harvest price exclusion 
option and 10 percent for those producers who do not have revenue 
protection. USDA will then issue prevented planting supplemental 
disaster payment to the participant in a manner and at a time 
determined by the Administrator.
    The Disaster Relief Act requires all participants who receive 
disaster payments to purchase crop insurance or NAP coverage for the 
next 2 available crop years. Participants who receive a prevented 
planting supplemental disaster payment must obtain crop insurance or 
NAP, as applicable, for the crop in the county. Participants may meet 
the Disaster Relief Act's purchase requirement by purchasing Whole-Farm 
Revenue Protection crop insurance coverage, if eligible.
    The crop insurance and NAP requirements are specific to the crop 
and county (physical location county for insurance and administrative 
county for NAP) for which prevented planting supplemental disaster 
payments are paid. Producers who receive a prevented planting 
supplemental disaster payment on a crop in a county and who have the 
crop or crop acreage in subsequent years, as provided in this rule, and 
who fail to obtain the 2 years of crop insurance or NAP coverage must 
refund all such payments for that crop in that county with interest 
from the date of disbursement. This is a condition of payment 
eligibility specified by Disaster Relief Act and is therefore not 
subject to partial payment eligibility or other types of equitable 
relief. Producers who were paid under WHIP+ on a crop in a county but 
do not plant that crop in a subsequent year are not subject to the crop 
insurance or NAP purchase requirement.

Effective Date and Notice and Comment

    The Administrative Procedure Act (5 U.S.C. 553) provides that the 
notice and comment and 30-day delay in the effective date provisions do 
not apply when the rule involves a matter relating to agency management 
or personnel or to public property, loans, grants, benefits, or 
contracts. This rule involves programs for payments to certain 
agricultural commodity producers and therefore that exemption applies.
    Due to the nature of the rule and the need to implement the 
regulations expeditiously to provide agricultural disaster assistance 
to producers who suffered certain losses in 2018 and 2019, CCC, FSA, 
and FCIC find that notice and public procedure are contrary to the 
public interest. Therefore, even though this rule is a major rule for 
purposes of

[[Page 48524]]

the Congressional Review Act, CCC is not required to delay the 
effective date for 60 days from the date of publication to allow for 
Congressional review. Therefore, this rule is effective upon 
publication in the Federal Register.

Executive Orders 12866, 13563, 13771 and 13777

    Executive Order 12866, ``Regulatory Planning and Review,'' and 
Executive Order 13563, ``Improving Regulation and Regulatory Review,'' 
direct agencies to assess all costs and benefits of available 
regulatory alternatives and, if regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health and safety effects, distributive 
impacts, and equity).
    Executive Order 13563 emphasized the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. Executive Order 13777, ``Enforcing the 
Regulatory Reform Agenda,'' established a federal policy to alleviate 
unnecessary regulatory burdens on the American people.
    The Office of Management and Budget (OMB) designated this rule as 
economically significant under Executive Order 12866, ``Regulatory 
Planning and Review,'' and therefore, OMB has reviewed this rule. The 
costs and benefits of this rule are summarized below. The full cost 
benefit analysis is available on regulations.gov.
    Executive Order 13771, ``Reducing Regulation and Controlling 
Regulatory Costs,'' requires that, in order to manage the costs 
required to comply with Federal regulations, that for every new 
significant or economically significant regulation issued, the new 
costs must be offset by the elimination of at least two prior 
regulations. The OMB guidance in M-17-21, dated April 5, 2017, 
specifies that ``transfers'' are not covered by Executive Order 13771 
but that changes in resource use that accompany transfer rules may 
qualify as costs or cost savings under Executive Order 13771.

Cost Benefit Analysis Summary

    Natural disasters inflicted significant damage to agricultural 
producers across the country in 2018 and 2019:
     Hurricanes Florence and Michael brought wind and flooding 
to the Carolina coastal plains and to regions of Florida, Georgia and 
Alabama;
     The Carr, Woolsey and Camp Fires burned nearly 1 percent 
of California;
     Hawaii's K[imacr]lauea volcano eruption, compounded by 
damage from Hurricane Lane affected high-value crops like macadamia, 
coffee and papaya;
     Snowstorms and heavy rains caused flooding throughout the 
country that destroyed crops; and
     In the spring of 2019, wet fields prevented planting on 
nearly 20 million acres.
    The Disaster Relief Act authorizes about $3 billion in supplemental 
assistance for losses of crops (including milk, on-farm stored 
commodities, crops prevented from planting in 2019, and harvested 
adulterated wine grapes), trees, bushes, and vines, as a consequence of 
Hurricanes Michael and Florence, and other hurricanes, floods, 
tornadoes, typhoons, volcanic activity, snowstorms, and wildfires 
occurring in calendar years 2018 and 2019. The Disaster Relief Act 
authorizes the Secretary of Agriculture to administer the assistance in 
the form of:
    (1) Augmenting the Federal Crop Insurance Program (FCIP) and NAP 
providing coverage against losses from eligible natural disasters in 
2018 and 2019;
    (2) Payments to producers with 2019 prevented plantings;
    (3) Payments for milk losses or on-farm stored commodity losses;
    (4) Block Grants to eligible states and territories;
    (5) Expansion of 2017 WHIP eligibility for Tropical Storm Cindy, 
peach and blueberry losses;
    (6) TAP payments for pecan tree losses of less than 15 percent, but 
exceeding 7.5 percent; and
    (7) Not more than $7 million to offset 2018 reductions to Whole 
Farm Revenue Protection due to payments to producers from state-
controlled agricultural disaster assistance funds.
    Implementation as outlined above and described in detail in this 
rule is expected to result in about $2.9 billion in combined payments 
out of the 2018 WHIP+ and remaining 2017 WHIP appropriations, with most 
benefits going to producers with 2018 hurricane losses in the Southeast 
and 2019 prevented plantings in the midwestern states.
    This rule includes an estimated $1.223 billion in indemnities for 
2018 and 2019 eligible disasters to date, and $535 million for a 10 to 
15 percent expansion of existing coverage on prevented plantings by 
RMA. After factoring in estimated payments for on-farm storage losses 
of $50 million and eligible milk losses of $5 million, we anticipate 
expenditures of $1.813 billion to count against the $3 billion 
appropriated funds. Under the Disaster Relief Act, producers with 2019 
losses due to eligible disasters are also eligible for WHIP+ payment. 
However, after accounting for prevented planting acres and without 
knowledge of other significant, eligible 2019 damage at this time, no 
assumptions are made in the cost benefit analysis about availability of 
funds for other 2019 disasters except that WHIP+ payments for 2019 and 
2020 crop losses due to weather events in 2019 will be prorated at 50 
percent in 2019 and subsequent payments in 2020 will be made up to the 
remaining 50 percent of losses to the extent that appropriated funds 
are still available. Estimated surplus funds of $1,187 million would be 
available for WHIP+ payments for 2019 and 2020 crop losses and block 
grants to states, the remainder could be returned to Treasury.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA, 
Pub. L. 104-121), generally requires an agency to prepare a regulatory 
flexibility analysis of any rule whenever an agency is required by the 
Administrative Procedure Act or any other law to publish a proposed 
rule, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule is not subject to the Regulatory Flexibility Act because USDA 
is not required by Administrative Procedure Act or any law to publish a 
proposed rule for this rulemaking.

Environmental Review

    The environmental impacts of this final rule have been considered 
in a manner consistent with the provisions of the National 
Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations 
of the Council on Environmental Quality (40 CFR parts 1500-1508), and 
the FSA regulation for compliance with NEPA (7 CFR part 799). The (1) 
WHIP+, (2) changes to 2017 WHIP, (3) TAP, (4) On-Storage Loss Program, 
(5) WHIP Milk Loss Program, and (6) prevented planting supplemental 
disaster payments are mandated by Disaster Relief Act. (1) The 
legislative intent for implementing WHIP+ is to provide payments to the 
producers who suffered eligible crop, tree, bush, and vine losses 
resulting from qualifying disaster events in the 2018 and 2019 calendar 
years. (2) This rule also implements changes to 2017 WHIP to expand 
eligibility to producers with eligible losses due to Tropical Storm 
Cindy, losses of peach and blueberry crops in calendar year 2017 due to 
extreme cold, and blueberry productivity losses in calendar year 2018 
due to extreme cold and hurricane damage in calendar year 2017. (3) It 
also provides authority for TAP for 2018

[[Page 48525]]

pecan tree losses for growers who suffered a pecan stand mortality loss 
that exceeds 7.5 percent but is less than 15 percent due to an eligible 
natural disaster. (4) The On-Farm Storage Loss Program provides 
payments to eligible producers who suffered losses of harvested 
commodities while stored in farm structures. (5) The WHIP Milk Loss 
Program provides payments to eligible dairy operations for milk that 
was dumped or removed without compensation from the commercial milk 
market. (6) Also, prevented planting supplemental disaster payments 
provide additional support to producers who were prevented from 
planting eligible crops for the 2019 crop year.
    While OMB has designated this rule as ``economically significant'' 
under Executive Order 12866, ``. . . economic or social effects are not 
intended by themselves to require preparation of an environmental 
impact statement'' (40 CFR 1508.14), when not interrelated to natural 
or physical environmental effects. Except for TAP, the intent of the 
programs is to compensate producers who have suffered post- or pre-
production market losses and do not have ground or other resource 
disturbing impacts. The limited discretionary aspects of the programs 
(for example, determining AGI and payment limitations) were designed to 
be consistent with established FSA disaster programs. As such, and with 
the exception of the TAP, the FSA Categorical Exclusions found in 7 CFR 
799.31 apply, specifically 7 CFR 799.31(b)(6)(iii), (iv), and (vi) 
(that is, Sec.  799.31(b)(6)(iii) Financial assistance to supplement 
income, manage the supply of agricultural commodities, or influence the 
cost or supply of such commodities or programs of a similar nature or 
intent (that is, price support programs); Sec.  799.31(b)(6)(iv) 
Individual farm participation in FSA programs where no ground 
disturbance or change in land use occurs as a result of the proposed 
action or participation; and Sec.  799.31(b)(6)(vi) Safety net programs 
administered by FSA). No Extraordinary Circumstances (7 CFR 799.33) 
exist. For TAP, due to the potential for ground disturbance and 
Extraordinary Circumstances, FSA will continue to require site-specific 
reviews as defined in Sec. Sec.  799.32 and 799.33. The prevented 
planting supplemental disaster payments, as administered by RMA, are 
covered by the USDA Categorical Exclusion for the FCIC (7 CFR 
1(b)(4)(a)(5), Exclusion of agencies, FCIC).
    For the outlined reasons, FSA and RMA have determined that the 
implementation of the programs and the participation in the programs, 
with the exception of TAP, do not constitute major Federal actions that 
would significantly affect the quality of the human environment, 
individually or cumulatively. Therefore, FSA will not prepare an 
environmental assessment or environmental impact statement for this 
regulatory action; for all covered programs except TAP, this rule 
serves as documentation of the programmatic environmental compliance 
decision for this federal action. TAP will continue to utilize the 
Environmental Screening Worksheet (FSA-850) as documentation of each 
site-specific environmental review.

Executive Order 12372

    Executive Order 12372, ``Intergovernmental Review of Federal 
Programs,'' requires consultation with State and local officials that 
would be directly affect by proposed Federal financial assistance. The 
objectives of the Executive Order are to foster an intergovernmental 
partnership and a strengthened Federalism, by relying on State and 
local processes for State and local government coordination and review 
of proposed Federal Financial assistance and direct Federal 
development. For reasons specified in the final rule related notice to 
7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs 
and activities within this rule are excluded from the scope of 
Executive Order 12372 which requires intergovernmental consultation 
with State and local officials.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, ``Civil 
Justice Reform.'' This rule will not preempt State or local laws, 
regulations, or policies unless they represent an irreconcilable 
conflict with this rule. The rule will not have retroactive effect. 
Before any judicial action may be brought regarding the provisions of 
this rule, the administrative appeal provisions of 7 CFR parts 11 and 
780 must be exhausted.

Executive Order 13132

    This rule has been reviewed under Executive Order 13132, 
``Federalism.'' The policies contained in this rule do not have any 
substantial direct effect on States, on the relationship between the 
Federal government and the States, or on the distribution of power and 
responsibilities among the various levels of government, except as 
required by law. Nor does this rule impose substantial direct 
compliance costs on State and local governments. Therefore, 
consultation with the States is not required.

Executive Order 13175

    This rule has been reviewed 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 USDA's Office of Tribal Relations (OTR) has assessed the impact 
of this rule on Indian Tribes and determined that this rule may have 
significant Tribal implications that require ongoing adherence to 
Executive Order 13175. OTR notes that the programs are similar to 
programs that have been administered by FSA and RMA in the past; having 
not heard any concerns regarding the administration of these in the 
past, and the fact that provisions are mandated in the Disaster Relief 
Act, OTR recommended that consultation is not required at this time. 
Tribes can request consultation at any time. CCC, FSA, RMA, and FCIC 
will work with OTR to ensure meaningful consultation is provided where 
changes, additions, and modifications identified in this rule are not 
expressly mandated by law.

The Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 
104-4) requires Federal agencies to assess the effects of their 
regulatory actions on State local, and Tribal governments or the 
private sector. Agencies generally must prepare a written statement, 
including a cost benefit analysis, for proposed and final rules with 
Federal mandates that may result in expenditures of $100 million or 
more in any 1 year for State, local, or Tribal governments, in the 
aggregate, or to the private sector. UMRA generally requires agencies 
to consider alternatives and adopt the more cost effective or least 
burdensome alternative that achieves the objectives of the rule. This 
rule contains no Federal mandates, as defined in Title II of UMRA, for 
State, local, and Tribal governments or the private sector. Therefore, 
this rule is not

[[Page 48526]]

subject to the requirements of sections 202 and 205 of UMRA.

E-Government Act Compliance

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

Federal Assistance Programs

    The titles and numbers of the Federal Domestic Assistance Program 
found in the Catalog of Federal Domestic Assistance to which this rule 
applies are:

10.129-Wildfire and Hurricanes Indemnity Program Plus
10.120-2017 Wildfires and Hurricanes Indemnity Program
10.111-Tree Assistance Program

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, the 
following new information collection request that supports WHIP+ was 
submitted to OMB for emergency approval. OMB approved the 6-month 
emergency information collection. Since the information collection 
activities will continue for more than the approved 6 months, in 
addition, through this rule, FSA is requesting comments from interested 
individuals and organizations on the information collection activities 
related to WHIP+ as described in this rule. Following the 60-day public 
comment period for this rule, the information collection request will 
be submitted to OMB for the 3-year approval to ensure adequate time for 
the information collection for the duration of WHIP+ and will merge 
with 0560-0291.
    Title: Wildfire and Hurricane Indemnity Program Plus (WHIP+).
    OMB Control Number: 0560-New.
    Form number(s) for WHIP+: FSA-894, Wildfires and Hurricanes 
Indemnity Program Plus Application; FSA-894 Continuation, Wildfires and 
Hurricanes Indemnity Program Plus Application Continuation; FSA-895, 
Crop Insurance and/or NAP Coverage Agreement; FSA-896, Request for an 
Exception to the WHIP+ Payment Limitation of $125,000, WHIP+ ONLY; and 
FSA-897, Actual Production History and Approve Yield Records (WHIP+ 
Select Crops Only). The On-Line Loss Certification, FSA-272, is for the 
producers who suffered losses of harvested commodities, including hay, 
stored in on-farm structures as a result from hurricanes, floods, 
tornadoes, typhoons, volcanic activity, snowstorms, and wildfires that 
occurred in the 2018 and 2019 calendar years to get payments. Also, the 
Wildfire and Hurricane Indemnity Program (WHIP) Milk Loss Application, 
FSA-375, is used by the producers who is eligible as dairy operations 
for milk that was dumped or removed without compensation from 
commercial milk market.
    Type of Request: New Collection.
    Abstract: This information collection is required to support both 
the regulation in 7 CFR part 760, subpart O, for WHIP+ that establishes 
the requirements or eligible producers who suffered eligible crop, 
tree, bush, and vine losses resulting from hurricanes and wildfires as 
specified in the Disaster Relief Act. The information collection is 
necessary to evaluate the application and other required paperwork for 
determining the producer's eligibilities and assist in producer's 
payment calculations.
    For the following estimated total annual burden on respondents, the 
formula used to calculate the total burden hour is the estimated 
average time per response multiplied by the estimated total annual 
responses.
    Estimate of Respondent Burden: Public reporting burden for this 
information collection is estimated to average 0.228 hours per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed and 
completing and reviewing the collections of information.
    Type of Respondents: Producers or farmers.
    Estimated Annual Number of Respondents: 26,592.
    Estimated Number of Reponses per Respondent: 3.053.
    Estimated Total Annual Responses: 80,552.
    Estimated Average Time per Response: 0.228 hours.
    Estimated Annual Burden on Respondents: 18,405.
    For WHIP+ and other WHIP+ programs, the per form estimated burden 
is:

----------------------------------------------------------------------------------------------------------------
                                                                                     Number of     Total  burden
                   Form name                                Form No.                respondents        hours
----------------------------------------------------------------------------------------------------------------
Wildfires and Hurricanes Indemnity Program      FSA-894.........................          21,738          10,689
 Plus Application.
Crop Insurance and/or NAP Coverage Agreement..  FSA-895.........................          21,738           1,710
Request for an Exception to the WHIP+ Payment   FSA-896.........................          16,332           1,307
 Limitation of $125,000, WHIP+ ONLY.
Actual Production History and Approve Yield     FSA-897.........................           4,000             320
 Records (WHIP+ Select only).
Wildfires and Hurricanes Indemnity Program      FSA-894 (continuation)..........          12,250           3,063
 Plus Application (Continuation Sheet).
On-Farm Storage Loss Certification............  FSA-272.........................           5,000           1,250
Wildfire and Hurricane Indemnity Program        FSA-375.........................             200              66
 (WHIP) Milk Loss.
AIP and RMA Agreement (non form)..............  ................................              14               1
----------------------------------------------------------------------------------------------------------------

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

[[Page 48527]]

List of Subjects

7 CFR Part 460

    Crop insurance, Disaster assistance.

7 CFR Part 760

    Dairy products, Indemnity payments, Reporting and recordkeeping 
requirements.

7 CFR Part 1416

    Administrative practice and procedure, Agriculture, Disaster 
assistance, Fruits, Livestock, Nursery stock, Seafood.

    For the reasons discussed above, the FCIC, FSA, and CCC amend 7 CFR 
chapters IV, VII, and XIV as follows:

Federal Crop Insurance Corporation

Chapter IV

0
1. Add part 460 to read as follows:

PART 460--ADDITIONAL DISASTER PAYMENTS

Subpart A--Prevented Planting Supplemental Disaster Payments
Sec.
460.1 Applicability.
460.2 Definitions.
460.3 Eligibility and qualifying causes of loss.
460.4 Calculating prevented planting supplemental disaster payments.
460.5 Timing and issuance of payments and payment limitations.
460.6 Adjusted prevented planting supplemental disaster payments and 
repayment.
460.7 Requirement to purchase crop insurance.
Subpart B--[Reserved]

    Authority: 7 U.S.C. 1506(1) and 1506(o); and Title I, Pub. L. 
116-20.

Subpart A--Prevented Planting Supplemental Disaster Payments


Sec.  460.1  Applicability.

    This subpart specifies the terms and conditions of prevented 
planting supplemental disaster payments. Prevented planting 
supplemental disaster payments provide additional compensation to 
producers prevented from planting crops insured under crop insurance 
policy reinsured by the Federal Crop Insurance Corporation (FCIC) due 
to disaster related conditions. Prevented planting supplemental 
disaster payments are applicable to 2019 crop year crops prevented from 
planting in 2019, as determined by the Risk Management Agency (RMA).


Sec.  460.2  Definitions.

    Approved Insurance Provider (AIP) means a legal entity which has 
entered into a reinsurance agreement with FCIC for the applicable 
reinsurance year and is authorized to sell and service policies or 
plans of insurance under the Federal Crop Insurance Act.
    Assignment of Indemnity means a transfer of crop insurance policy 
rights whereby a policyholder assigns rights to an indemnity payment 
for the crop year to creditors or other persons to whom they have a 
financial debt or other pecuniary obligation.
    Crop insurance policy means an insurance policy reinsured by FCIC 
under the provisions of the Federal Crop Insurance Act, as amended. It 
does not include private plans of insurance.
    Crop year means the period within which the insured crop is 
normally grown and is designated by the calendar year in which the 
insured crop is normally harvested.
    Federal Crop Insurance Act means the legal authority codified in 7 
U.S.C. 1501-1524.
    Final planting date means the latest date, established by RMA for 
each insurable crop, by which the crop must initially be planted in 
order to be insured for the full production guarantee or amount of 
insurance per acre.
    FCIC means the Federal Crop Insurance Corporation, a wholly owned 
Government Corporation of USDA that administers the Federal crop 
insurance program.
    FSA means the Farm Service Agency.
    Insured crop means a crop for which the participant has purchased a 
crop insurance policy from an AIP.
    NAP means the Noninsured Crop Disaster Assistance Program under 
section 196 of the Federal Agriculture Improvement and Reform Act of 
1996 (7 U.S.C. 7333) and part 1437 of this title and administered by 
FSA.
    Person has the same meaning as defined in Sec.  457.8(1) of this 
title.
    Prevent plant base factor means the value announced by the 
Secretary used to calculate the payment for crops covered under a plan 
of insurance that is not a revenue protection plan of insurance, or is 
a revenue protection plan of insurance with the harvest price exclusion 
elected.
    Prevent plant revenue factor means value announced by the Secretary 
used to calculate the payment for crops covered under a plan of 
insurance that provides revenue protection unless the harvest price 
exclusion is elected for that crop.
    Prevented planting means the inability to plant an insured crop 
with proper equipment during the planting period as a result of an 
insured cause of loss, as determined by the AIP.
    Prevented planting payment means a payment made under a crop 
insurance policy to compensate the policyholder when they are prevented 
from planting an insured crop.
    Qualifying prevented planting payment means a prevented planting 
payment made under a crop insurance policy that qualifies for a 
prevented planting supplemental disaster payment, as specified in this 
subpart.
    Revenue protection has the same meaning as defined in Sec.  
457.8(1) of this title.
    Second crop has the same meaning as defined in Sec.  457.8(1) of 
this title.


Sec.  460.3  Eligibility and qualifying causes of loss.

    (a) To be eligible for a payment under this subpart, the 
participant must be a person that is eligible to receive Federal 
benefits and has purchased a crop insurance policy for the insured crop 
from an AIP.
    (1) Participants will be eligible to receive a payment in this 
subpart only if they were prevented from planting an insured crop due 
to a qualifying cause of loss, as further specified in this subpart.
    (2) A person is not eligible to receive benefits in this subpart if 
at any time that person is determined to be ineligible for crop 
insurance.
    (b) Insured crops that are eligible for a payment under this 
subpart are those crops for which the final planting date for the 2019 
crop year crop insurance policy is in the 2019 calendar year, as 
specified by the Administrator.
    (1) For insured crops with more than one final planting date in the 
county, only those types or practices with a final planting date in the 
2019 calendar year are eligible for payment under this subpart.
    (2) Participants who are in violation of Highly Erodible Land or 
Wetlands Conservation (16 U.S.C. 3811-12, 3821) for Federal crop 
insurance are not eligible for payment under this subpart.
    (c) A prevented planting payment will only be considered a 
qualifying prevented planting payment if the participant is prevented 
from planting the insured crop due to one of the following causes of 
loss:
    (1) Excess precipitation;
    (2) Flood;
    (3) Cold wet weather;
    (4) Storm surge;
    (5) Tornado;
    (6) Volcanic activity; and
    (7) Tropical depression, hurricane, or cyclone.
    (d) A prevented planting payment received for failure to plant due 
to any cause not included in paragraph (c) of

[[Page 48528]]

this section is not considered a qualifying prevented planting payment 
for the purpose of this subpart.


Sec.  460.4  Calculating prevented planting supplemental disaster 
payments.

    (a) For insured crops covered under a crop insurance policy with a 
revenue protection plan of insurance that does not have the harvest 
price exclusion elected, the payment under this subpart for each 
insured crop will be calculated by summing the qualifying prevented 
planting payments for that insured crop and multiplying the total by 
the prevent plant revenue factor.
    (b) For all other insured crops, the payment under this subpart for 
each insured crop will be calculated by summing the qualifying 
prevented planting payments for that insured crop and multiplying the 
total by the prevent plant base factor.
    (c) If a qualifying prevented planting payment is reduced for any 
reason, such as the participant planting a second crop, the payment 
under this subpart will be based on the amount of the qualifying 
prevented planting payment after any such reduction.


Sec.  460.5  Timing and issuance of payments and payment limitations.

    (a) The payment under this subpart will be issued, for each crop, 
to the same person or persons that received the qualifying prevented 
planting payment for that crop:
    (1) If the insured has an assignment of indemnity in effect on the 
insured crop, the payment under this subpart will be made jointly in 
the name of the insured and all applicable assignees.
    (2) In cases where there has been a death, disappearance, 
judicially declared incompetence, or dissolution of any insured person 
any payment under this subpart will be paid to the person or persons 
determined to be entitled to the qualifying prevented planting payment.
    (b) Any payments under this subpart will be made by USDA in a 
manner and at a time determined by the Administrator.
    (c) The total amount of payments received for prevented planting 
supplemental disaster payments under this subpart, applicable crop 
insurance policy indemnities, NAP payments, and any other applicable 
disaster relief payment will not exceed 90 percent of the loss as 
determined by the Secretary.
    (d) The payment limitations stated in 7 CFR 760.1507 are not 
applicable to prevented planting supplemental disaster payments.


Sec.  460.6  Adjusted prevented planting supplemental disaster payments 
and repayment.

    (a) In the event that any payment under this subpart is determined 
to be incorrect due to a change in a qualifying prevented planting 
payment, erroneous information, or a miscalculation, the payment will 
be recalculated until October 9, 2020, unless otherwise specified by 
the Administrator. After that date, the payment under this subpart will 
be final except in cases of fraud, scheme, or device, or failure to 
purchase crop insurance as specified in Sec.  460.8.
    (b) In the event that the qualifying prevented planting payment is 
adjusted after payment under this subpart has been issued and that 
adjustment results in:
    (1) A higher qualifying prevented planting payment, the amount of 
payment will be increased to the amount determined to be correct; or
    (2) A lower qualifying prevented planting payment, the amount of 
payment will be decreased to the amount determined to be correct and 
the participant will be required to repay, with interest if applicable, 
any excess payment already received.
    (c) All persons with a financial interest in the person receiving 
payments under this subpart are jointly and severally liable for any 
refund, including related charges, which is determined to be due.
    (d) Interest will accrue at the annual rate of 1.25 percent simple 
interest per calendar month. Interest will start to accrue on the first 
day of the month following the notification of the amount to be 
refunded, provided that a minimum of 30 days has passed from the date 
the notification was issued.


Sec.  460.7  Requirement to purchase crop insurance.

    (a) For the first 2 consecutive crop years after receiving a 
payment under this subpart:
    (1) A participant who receives a payment under this subpart for 
prevented planting for a crop in a county must obtain crop insurance 
for all acres planted to that crop in that county; or
    (2) If crop insurance is no longer available for the crop in that 
county, the participant must obtain NAP coverage if available for the 
applicable crop year. A participant will only be considered to have 
obtained NAP coverage for the purposes of this section if the 
participant paid the NAP service fee and any premium by the applicable 
deadline and complied with all program requirements.
    (b) If a participant fails to obtain crop insurance or NAP coverage 
as required in paragraph (a) of this section, the participant must 
reimburse the full amount of the payment under this subpart received 
for the applicable crop, plus interest calculated from the date of 
disbursement.

Subpart B--[Reserved]

Farm Service Administration

Chapter VII

PART 760--INDEMNITY PAYMENT PROGRAMS

0
2. The authority citation for part 760 is revised to read as follows:

    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 O--Agricultural Disaster Indemnity Programs

0
3. Revise the heading for subpart O to read as set forth above.

0
4. Revise Sec.  760.1500 to read as follows.


Sec.  760.1500  Applicability.

    (a) This subpart specifies the terms and conditions for the 2017 
Wildfires and Hurricanes Indemnity Program (2017 WHIP) and the 
Wildfires and Hurricanes Indemnity Program Plus (WHIP+).
    (b) The 2017 WHIP provides disaster assistance for necessary 
expenses related to crop, tree, bush, and vine losses related to the 
consequences of wildfires, hurricanes, and Tropical Storm Cindy that 
occurred in calendar year 2017, and for losses of peach and blueberry 
crops in calendar year 2017 due to extreme cold, and blueberry 
productivity losses in calendar year 2018 due to extreme cold and 
hurricane damage in calendar year 2017.
    (c) WHIP+ provides disaster assistance for necessary expenses 
related to losses of crops, trees, bushes, and vines, as a consequence 
of Hurricanes Michael and Florence, other hurricanes, floods, 
tornadoes, typhoons, volcanic activity, snowstorms, and wildfires 
occurring in calendar years 2018 and 2019.


Sec.  760.1501  [Amended]

0
5. Amend Sec.  760.1501 as follows:
0
a. In paragraph (a), remove the words ``The 2017 WHIP is'' both times 
it appears and add ``Programs under this subpart are'' in their place;

[[Page 48529]]

0
b. In paragraph (d), remove ``2017 WHIP'' and add ``this subpart'' in 
its place;
0
c. In paragraph (f), remove the words ``for 2017 WHIP'' and add ``under 
this subpart'' in their place.

0
6. Amend Sec.  760.1502 as follows:
0
a. Revise the definitions of ``Average adjusted gross farm income'' and 
``Average adjusted gross income'';
0
b. In the definition of ``County disaster yield'', remove ``current'' 
and add ``applicable crop'' in its place;
0
c. In paragraph (3) of the definition of ``Crop year'', remove the 
words ``2017 crop year'' and add ``calendar year in which the 
qualifying disaster event occurred'' in their place;
0
d. In the definition of ``Multi-use crop'', remove ``calendar'' and add 
``crop'' in its place;
0
e. In paragraph (1) of the definition of ``Price'', add ``, and under 
WHIP+, the price for a crop for which the producer obtained a revenue 
plan of insurance is the greater of the projected price or the harvest 
price;'' after the word ``price'';
0
f. Revise the definition of ``Qualifying disaster event'';
0
g. In the definition of ``Related condition'', remove the words 
``hurricane or wildfire'' and add ``specified qualifying disaster 
event'' in their place;
0
h. In the definition of ``Uninsured'', remove ``2017 WHIP'' and add 
``under this subpart'' after the word ``requested''; and
0
i. Add in alphabetical order definitions for ``WHIP+ factor'' and 
``WHIP+ yield''.
    The revisions and additions read as follows:


Sec.  760.1502  Definitions.

* * * * *
    Average adjusted gross farm income means the average of the portion 
of adjusted gross income of the person or legal entity that is 
attributable to activities related to farming, ranching, or forestry. 
The relevant tax years are:
    (1) For 2017 WHIP, 2013, 2014, and 2015; and
    (2) For WHIP+, 2015, 2016, and 2017.
    Average adjusted gross income means the average of the adjusted 
gross income as defined under 26 U.S.C. 62 or comparable measure of the 
person or legal entity. The relevant tax years are:
    (1) For 2017 WHIP, 2013, 2014, and 2015; and
    (2) For WHIP+, 2015, 2016, and 2017.
* * * * *
    Qualifying disaster event means:
    (1) For 2017 WHIP, a hurricane, wildfire, or Tropical Storm Cindy 
or related condition that occurred in the 2017 calendar year; extreme 
cold in calendar year 2017 for losses of peach and blueberry crops in 
calendar year 2017; and extreme cold and hurricane damage in calendar 
year 2017 for blueberry productivity losses in calendar year 2018; and
    (2) For WHIP+, a hurricane, flood, tornado, typhoon, volcanic 
activity, snowstorm, wildfire, or related condition that occurred in 
the 2018 or 2019 calendar year.
* * * * *
    WHIP+ factor means the factor in Sec.  760.1511, determined by the 
Deputy Administrator, that is based on the crop insurance or NAP 
coverage level elected by the WHIP+ participant for a crop for which a 
payment is being requested; or, as applicable, the factor that applies 
for a crop during a crop year in which the participant had no insurance 
or NAP coverage.
    WHIP+ yield means, for a unit:
    (1) For an insured crop, excluding crops located in Puerto Rico, 
the approved federal crop insurance APH, for the crop year;
    (2) For a NAP covered crop, excluding crops located in Puerto Rico, 
the approved yield for the crop year;
    (3) For a crop located in Puerto Rico or an uninsured crop, 
excluding select crops, the county expected yield for the crop year; 
and
    (4) For select crops, the yield based on documentation submitted 
according to Sec.  760.1511(c)(3), or if documentation is not 
submitted, the county expected yield.
* * * * *


Sec.  760.1503  [Amended]

0
7. Amend Sec.  760.1503 as follows:
0
a. In paragraph (a) remove ``2017 WHIP'';
0
b. In paragraph (b)(3), add ``solely of'' before ``citizens'';
0
c. In paragraph (b)(4), add ``consisting solely of citizens of the 
United States or resident aliens'' after ``law''; and
0
d. In paragraph (i), remove ``2017 WHIP benefits'' and add ``benefits 
under this subpart'' in their place.

0
8. Amend Sec.  760.1505 as follows:
0
a. In paragraph (b) introductory text, add ``or WHIP+ yield'' after 
``yield'';
0
b. In paragraph (d) introductory text, remove the words ``for 2017 
WHIP'' and add ``under this subpart'' in their place;
0
c. In paragraph (e), remove ``2017 WHIP'', and add ``under this 
subpart'' after ``purposes'';
0
d. In paragraph (g), add ``, except as specified in Sec.  760.1513(i)'' 
after ``quality'';
0
e. Revise paragraph (h); and
0
f. Add paragraph (i).
    The revision and addition read as follows:


Sec.  760.1505  General provisions.

* * * * *
    (h) FSA will use the most reliable data available at the time 
payments under this subpart are calculated. If additional data or 
information is provided or becomes available after a payment is issued, 
FSA will recalculate the payment amount and the producer must return 
any overpayment amount to FSA. In all cases, payments can only issue 
based on the payment formula for losses that affirmatively occurred.
    (i) A participant who received a payment for a loss under 2017 WHIP 
cannot:
    (1) Be paid for the same loss under WHIP+; or
    (2) Refund the 2017 WHIP payment to be eligible for payment for 
that loss under WHIP+.

0
9. Amend Sec.  760.1506 as follows:
0
a. Redesignate paragraphs (a) through (c) as paragraphs (a)(1) through 
(3), respectively; and
0
b. Add new paragraph (a) introductory text and paragraph (b).
    The additions read as follows:


Sec.  760.1506  Availability of funds and timing of payments.

    (a) For 2017 WHIP:
* * * * *
    (b) For WHIP:
    (1) For the 2018 crop year, the calculated WHIP+ payment will be 
paid at 100 percent.
    (2) For the 2019 and 2020 crop years, an initial payment will be 
issued for 50 percent of each WHIP+ payment calculated according to 
this subpart, as determined by the Secretary. Up to the remaining 50 
percent of the calculated WHIP+ payment will be paid only to the extent 
that there are funds available for such payment as discussed in this 
subpart.
    (3) In the event that, within the limits of the funding made 
available by the Secretary, approval of eligible applications would 
result in payments in excess of the amount available, FSA will prorate 
2019 and 2020 payments by a national factor to reduce the payments to 
the remaining available funds, as determined by the Secretary. FSA will 
prorate the payments accordingly.
    (4) Applications and claims that are unpaid or prorated for 
aforementioned reasons of fund availability will not be carried forward 
for payment and will be considered, as to any unpaid amount, void and 
non-payable.

0
10. Amend Sec.  760.1507 as follows:
0
a. Redesignate paragraphs (b) through (d) as paragraphs (c) through 
(e);

[[Page 48530]]

0
b. Add new paragraph (b);
0
b. Revise newly redesignated paragraph (c);
0
c. In newly redesignated paragraph (d), remove ``2017 WHIP'', and add 
``for the applicable period specified in this section'' after 
``payments''; and
0
d. In newly redesignated paragraph (e), remove ``2017 WHIP'' and add 
``payments under this subpart'' in its place.
    The addition and revision read as follows:


Sec.  760.1507  Payment limitation.

* * * * *
    (b) For any WHIP+ payments, a person or legal entity, other than a 
joint venture or general partnership, is eligible to receive, directly 
or indirectly, WHIP+ payments of not more than:
    (1) $125,000 combined for the 2018, 2019, and 2020 crop years, if 
less than 75 percent of the person or legal entity's average adjusted 
gross income is average adjusted gross farm income; or
    (2) $250,000 for each of the 2018, 2019, and 2020 crop years, if 75 
percent or more of the average adjusted gross income of the person or 
legal entity is average adjusted gross farm income, and such payments 
cannot exceed a total of $500,000 combined for all of the 2018, 2019, 
and 2020 crop years.
    (c) A person or legal entity's average adjusted gross income and 
average adjusted gross farm income are determined based on the:
    (1) 2013, 2014, and 2015 tax years for 2017 WHIP;
    (2) 2015, 2016, and 2017 tax years for WHIP+.
* * * * *

0
11. Amend Sec.  760.1508 as follows:
0
a. In paragraph (a), remove the words ``2017 WHIP payments'', and add 
``payments under this subpart'' in their place; and
0
b. Add paragraphs (e) and (f).
    The additions read as follows:


Sec.  760.1508  Qualifying disaster events.

* * * * *
    (e) For WHIP+, for a loss due to a qualifying disaster event, the 
crop, tree, bush, or vine loss must have occurred on acreage that was 
physically located in a county that received a:
    (1) Presidential Emergency Disaster Declaration authorizing public 
assistance for categories C through G or individual assistance due to a 
qualifying disaster event occurring in the 2018 or 2019 calendar years; 
or
    (2) Secretarial Disaster Designation for a qualifying disaster 
event occurring in the 2018 or 2019 calendar years.
    (f) A producer with crop, tree, bush, or vine losses on acreage not 
located in a physical location county that was eligible under paragraph 
(b)(1) of this section will be eligible for WHIP+ for losses due to 
qualifying disaster events only if the producer provides supporting 
documentation that is acceptable to FSA from which the FSA county 
committee determines that the loss of the crop, tree, bush, or vine on 
the unit was reasonably related to a qualifying disaster event as 
specified in this subpart. Supporting documentation may include 
furnishing climatological data from a reputable source or other 
information substantiating the claim of loss due to a qualifying 
disaster event.

0
12. Amend Sec.  760.1509 as follows:
0
a. In paragraph (b) introductory text, remove the words ``for 2017 
WHIP'' and add ``under this subpart'' in their place;
0
b. In paragraph (b)(4), remove ``or'' at the end;
0
c. In paragraph (b)(5), remove the period and add ``; or'' in its 
place;
0
d. Add paragraph (b)(6);
0
e. In paragraph (c)(6), remove ``or'' at the end;
0
f. In paragraph (c)(7), remove the period and add ``; or'' in its 
place;
0
g. Add paragraph (c)(8).
    The additions read as follows:


Sec.  760.1509  Eligible and ineligible losses.

* * * * *
    (b) * * *
    (6) FSA or RMA have previously disapproved a notice of loss for the 
crop and disaster event unless that notice of loss was disapproved 
solely because it was filed after the applicable deadline.
* * * * *
    (c) * * *
    (8) Losses to crops that occur after harvest.
* * * * *

0
13. Amend Sec.  760.1510 as follows:
0
a. Revise the section heading;
0
b. Revise paragraph (a);
0
c. In paragraph (c), remove the words ``2017 WHIP payment'' and add 
``payment under this subpart'' in their place, and remove the words 
``eligibility for 2017 WHIP'' and add ``eligibility for payment under 
this subpart'' in their place;
0
d. Revise paragraphs (d)(1) through (4); and
0
e. Remove paragraph (d)(5).
    The revisions read as follows:


Sec.  760.1510  Application for payment.

    (a) An application for payment under this subpart must be submitted 
to the FSA county office serving as the farm's administrative county 
office by the close of business on a date that will be announced by the 
Deputy Administrator. Producers must submit:
    (1) For 2017 WHIP, a completed form FSA-890, Wildfires and 
Hurricanes Indemnity Program Application; or
    (2) For WHIP+, a completed form FSA-894, Wildfires and Hurricanes 
Indemnity Program + Application.
* * * * *
    (d) * * *
    (1) Report of all acreage for the crop for the unit for which 
payments under this subpart are requested, on FSA-578, Report of 
Acreage, or in another format acceptable to FSA;
    (2) AD-1026, Highly Erodible Land Conservation (HELC) and Wetland 
Conservation Certification; and
    (3) For 2017 WHIP:
    (i) FSA-891, Crop Insurance and/or NAP Coverage Agreement;
    (ii) FSA-892, Request for an Exception to the WHIP Payment 
Limitation of $125,000, if the applicant is requesting 2017 WHIP 
payments in excess of the $125,000 payment limitation; and
    (iii) FSA-893, 2018 Citrus Actual Production History and Approved 
Yield Record, Florida Only, for participants applying for payment for a 
citrus crop located in Florida;
    (4) For WHIP+:
    (i) FSA-895, Crop Insurance and/or NAP Coverage Agreement;
    (ii) FSA-896, Request for an Exception to the WHIP Payment 
Limitation of $125,000, if 75 percent or more of an applicant's average 
AGI is attributable to activities related to farming, ranching, or 
forestry and the applicant wants to be eligible to receive WHIP+ 
payments of more than $125,000, up to the $250,000 payment limitation 
per crop year, with an overall WHIP+ limit of $500,000; and
    (iii) FSA-897, Actual Production History and Approved Yield Record 
(WHIP+ Select Crops Only), for applicants requesting payments for 
select crops.
* * * * *

0
14. Amend Sec.  760.1511 as follows:
0
a. In paragraph (a) introductory text, add ``subject to Sec.  
760.1514(i) and (j),'' after ``planting,'';
0
b. In paragraph (a)(1), add ``or the WHIP+ yield in paragraph (d) of 
this section'' after ``section'';
0
c. In paragraph (a)(2), add ``or WHIP+ factor'' after ``2017 WHIP 
factor'';
0
d. In paragraph (a)(7), remove ``and'';
0
e. In paragraph (a)(8), remove the period and add ``; and'' in its 
place;
0
f. In paragraph (b), remove the words ``second column'' and add 
``second column, and the WHIP+ factor is listed in the third column'' 
in their place, and revise the table in paragraph (b);
0
g. Redesignate paragraphs (d) through (g) as paragraphs (e) through 
(h);

[[Page 48531]]

0
h. Add new paragraph (d);
0
i. In newly redesignated paragraph (e), remove the words ``2017 WHIP 
payment'' and add ``payment under this subpart'' in their place;
0
j. In newly redesignated paragraph (f), remove the words ``2017 WHIP 
payment'' and add ``payment under this subpart'' in their place, and 
remove ``for 2017 WHIP'' and add ``for payment'' in their place.
    The revision and addition read as follows:


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

* * * * *
    (b) * * *

                      Table 1 to Sec.   760.1511(b)
------------------------------------------------------------------------
                                            2017  WHIP
             Coverage level                   factor       WHIP+  factor
                                             (percent)       (percent)
------------------------------------------------------------------------
(1) No crop insurance or No NAP coverage              65              70
(2) Catastrophic coverage...............              70              75
(3) More than catastrophic coverage but             72.5            77.5
 less than 55 percent...................
(4) At least 55 percent but less than 60              75              80
 percent................................
(5) At least 60 percent but less than 65            77.5            82.5
 percent................................
(6) At least 65 percent but less than 70              80              85
 percent................................
(7) At least 70 percent but less than 75              85            87.5
 percent................................
(8) At least 75 percent but less than 80              90            92.5
 percent................................
(9) At least 80 percent.................              95              95
------------------------------------------------------------------------

* * * * *
    (d) The WHIP+ yield is:
    (1) The producer's APH for insured crops under a crop insurance 
policy that has an associated yield and for NAP covered crops, 
excluding all crops located in Puerto Rico;
    (2) The county expected yield for crops located in Puerto Rico and 
uninsured crops, excluding select crops; or
    (3) For select crops:
    (i) Determined based on information provided on FSA-897 and 
supported by evidence that meets the requirements of Sec.  760.1513(c), 
or
    (ii) If FSA-897 and supporting documentation are not submitted, the 
county expected yield.
* * * * *

0
15. Amend Sec.  760.1512 by adding paragraph (e) to read as follows.


Sec.  760.1512  Production losses; participant responsibility.

* * * * *
    (e) Under WHIP+, participants requesting payments for losses to 
adulterated wine grapes must submit verifiable sales tickets that 
document that the reduced price received was due to adulteration due to 
a qualifying disaster event. For adulterated wine grapes that have not 
been sold, participants must submit verifiable records obtained by 
testing or analysis to establish that the wine grapes were adulterated 
due to a qualifying disaster event and the price they would receive due 
to adulteration.

0
16. Amend Sec.  760.1513 by adding paragraph (i) to read as follows.


Sec.  760.1513  Determination of production.

* * * * *
    (i) Under WHIP+, production for eligible adulterated wine grapes 
will be adjusted for quality deficiencies due to a qualifying disaster 
event. Wine grapes are eligible for production adjustment only if 
adulteration occurred prior to harvest and as a result of a qualifying 
disaster event or as a result of a related condition (such as 
application of fire retardant). Losses due to all other causes of 
adulteration (such as addition of artificial flavoring or chemicals for 
economic purposes) are not eligible for WHIP+. Production will be 
eligible for quality adjustment if, due to a qualifying disaster event, 
it has a value of less than 75 percent of the average market price of 
undamaged grapes of the same or similar variety. The value per ton of 
the qualifying damaged production and the average market price of 
undamaged grapes will be determined on the earlier of the date the 
damaged production is sold or the date of final inspection for the 
unit. Grape production that is eligible for quality adjustment will be 
reduced by:
    (1) Dividing the value per ton of the damaged grapes by the value 
per ton for undamaged grapes; and
    (2) Multiplying this result (not to exceed 1.000) by the number of 
tons of the eligible damaged grapes.

0
17. Amend Sec.  760.1514 as follows:
0
a. In paragraph (b), remove the words ``2017 WHIP'' both times it 
appears and add ``under this subpart'' in their places;
0
b. In paragraphs (c) and (d), remove ``for 2017 WHIP'';
0
c. In paragraph (f), remove the words ``for 2017 WHIP'' and add ``under 
this subpart in their place, and remove the words ``will apply to 2017 
WHIP and add ``apply'' in their place;
0
d. In paragraph (h), remove ``for 2017 WHIP''; and
0
e. Add paragraphs (i) and (j).
    The additions read as follows.


Sec.  760.1514  Eligible acres.

* * * * *
    (i) For 2017 WHIP, prevented planting acres will be considered 
eligible acres if they meet all requirements of this subpart.
    (j) For WHIP+:
    (1) 2018 and 2020 crop year prevented planting acres and 2019 crop 
year uninsured and NAP-covered prevented planting acres will be 
eligible acres if they meet all requirements of this subpart; and
    (2) 2019 crop year insured prevented planting acres will not be 
eligible acres.

0
18. Amend Sec.  760.1515 as follows:
0
a. In paragraph (a)(1), add ``or WHIP+ factor'' after ``factor'';
0
b. In paragraph (a)(5), remove ``and'';
0
c. Redesignate paragraph (a)(7) as paragraph (a)(6);
0
d. In newly redesignated paragraph (a)(6), remove the period and add 
``; and'' in its place;
0
e. Add new paragraph (a)(7);
0
f. In paragraph (b), remove the words ``2017 WHIP payment'', and add 
``payment under this subpart'' in their place; and
0
g. In paragraph (c), remove ``2017 WHIP''.
    The addition reads as follows.


Sec.  760.1515   Calculating payments for value loss crops.

    (a) * * *
    (7) Subtracting the amount of any payment for future economic 
losses received under the Florida Citrus Recovery Block Grant Program.
* * * * *

[[Page 48532]]

Sec.  760.1516  [Amended]

0
19. Amend Sec.  760.1516 as follows:
0
a. In paragraph (b)(1), add ``or WHIP+ factor'' after ``factor''; and
0
b. In paragraph (f), remove the words ``this section'' and add ``2017 
WHIP'' in their place.

0
20. Amend Sec.  760.1517 as follows:
0
a. Revise paragraph (a) introductory text;
0
b. In paragraph (b), remove the words ``but not later than the 2021 
crop years'' and add ``subject to paragraph (c) of this section'' in 
their place;
0
c. Redesignate paragraph (c) as paragraph (d);
0
d. Add new paragraph (c); and
0
e. In newly redesignated paragraph (d), add ``or WHIP+ payment'' after 
``payment'' in the first sentence.
    The revision and addition read as follows:


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

    (a) For the first 2 consecutive crop years for which crop insurance 
or NAP coverage is available after the enrollment period for 2017 WHIP 
or WHIP+ ends, subject to paragraph (c) of this section, a participant 
who receives payment under this subpart for a crop loss in a county 
must obtain:
* * * * *
    (c) The final crop year to purchase crop insurance or NAP coverage 
to meet the requirements of paragraphs (a) and (b) of this section is 
the:
    (1) 2021 crop year for 2017 WHIP payment eligibility, except as 
provided in paragraph (c)(2) of this section;
    (2) 2023 crop year for:
    (i) WHIP+ payment eligibility; and
    (ii) 2017 WHIP payment eligibility for losses due to Tropical Storm 
Cindy, losses of peach and blueberry crops in calendar year 2017 due to 
extreme cold, and blueberry productivity losses in calendar year 2018 
due to extreme cold and hurricane damage in calendar year 2017.
* * * * *

0
21. Add subpart P, consisting of Sec. Sec.  760.1600 through 760.1612, 
to read as follows:
Subpart P--On-Farm Storage Loss Program
Sec.
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.
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 P--On-Farm Storage Loss Program


Sec.  760.1600   Applicability.

    (a) This subpart specifies the terms and conditions for the On-Farm 
Storage Loss Program. The On-Farm Storage Loss Program will provide 
payments to eligible producers who suffered uncompensated losses of 
harvested commodities stored in on farm structures as a result from 
hurricanes, floods, tornadoes, typhoons, volcanic activity, snowstorms, 
and wildfires that occurred in the 2018 and 2019 calendar years.
    (b) The regulations in this subpart are applicable to crops of 
barley, small and large chickpeas, corn, grain sorghum, lentils, oats, 
dry peas, peanuts, rice, wheat, soybeans, oilseeds, hay and other crops 
designated by Commodity Credit Corporation (CCC) stored in on-farm 
structures. These regulations specify the general provisions under 
which the On-Farm Storage Loss Program will be administered by CCC. In 
any case in which money must be refunded to CCC in connection with this 
part, interest will be due to run from the date of disbursement of the 
sum to be refunded. This provision will apply, unless waived by the 
Deputy Administrator, irrespective of any other rule.
    (c) Eligible on-farm structures include all on-farm structures 
deemed acceptable by the Deputy Administrator for Farm Programs.
    (d) Adjusted Gross Income (AGI) and payment limitation provisions 
specified in part 760.1607 of this chapter apply to this subpart.


Sec.  760.1601   Administration.

    (a) The On-Farm Storage Loss Program will be administered under the 
general supervision of the Executive Vice President, CCC and will be 
carried out in the field by FSA State and county committees, 
respectively.
    (b) State and county committees, and representatives and their 
employees, do not have authority to modify or waive any of the 
provisions of the regulations, except as provided in paragraph (e) of 
this section.
    (c) The FSA State committee will take any required action not taken 
by the FSA county committee. The FSA State committee will also:
    (1) Correct or require correction of an action taken by a county 
committee that is not in compliance with this part; or
    (2) Require a county committee to not take an action or implement a 
decision that is not under the regulations of this part.
    (d) The Executive Vice President, CCC, or a designee, may determine 
any question arising under these programs, or reverse or modify a 
determination made by a State or county committee.
    (e) The Deputy Administrator for Farm Programs, FSA, may authorize 
State and county committees to waive or modify non-statutory deadlines 
and other program requirements in cases where lateness or failure to 
meet such other requirements does not adversely affect the operation of 
the On-Farm Storage Loss Program.
    (f) A representative of CCC may execute applications and related 
documents only under the terms and conditions determined and announced 
by CCC. Any document not executed under such terms and conditions, 
including any purported execution before the date authorized by CCC, 
will be null and void.
    (g) Items of general applicability to program participants, 
including, but not limited to, application periods, application 
deadlines, internal operating guidelines issued to State and county 
offices, prices, and payment factors established by the On-Farm Storage 
Loss Program, are not subject to appeal.


Sec.  760.1602   Definitions.

    The definitions in this section apply for all purposes of program 
administration. Terms defined in Sec. Sec.  760.1502 and 760.1421 of 
this chapter also apply, except where they conflict with the 
definitions in this section.
    Administrative County Office is the FSA County Office where a 
producer's FSA records are maintained.
    CCC means the Commodity Credit Corporation.
    COC means the FSA county committee.
    Covered commodity means wheat, oats, and barley (including wheat, 
oats, and barley used for haying), corn, grain sorghum, long grain 
rice, medium grain rice, seed cotton, pulse crops, soybeans, other 
oilseeds, and peanuts as specified in 7 CFR 1412 and produced and 
mechanically harvested in the United States.
    Crop means with respect to a year, commodities harvested in that 
year. Therefore, the referenced crop year of a commodity means 
commodities that when planted were intended for harvest in that 
calendar year.
    Crop year means the relevant contract or application year. For 
example, the 2014 crop year is the year that runs from October 1, 2013, 
through September 30,

[[Page 48533]]

2014, and references to payments for that year refer to payments made 
under contracts or applications with the compliance year that runs 
during those dates.
    FSA means the Farm Service Agency of the United States Department 
of Agriculture.
    Oilseeds means any crop of sunflower seed, canola, rapeseed, 
safflower, flaxseed, mustard seed, crambe, sesame seed, and other 
oilseeds as designated by CCC or the Secretary.
    Qualifying disaster event means a hurricane, flood, tornado, 
typhoon, volcanic activity, snowstorm, or wildfire or related condition 
that occurred in the 2018 or 2019 calendar year.
    Recording FSA County Office is the FSA County Office that records 
eligibility data for producers designated as multi-county producers.
    Related condition means damaging weather or an adverse natural 
occurrence that occurred as a direct result of a hurricane or wildfire 
qualifying disaster event, such as excessive rain, high winds, 
flooding, mudslides, and heavy smoke.
    Secretary means the Secretary of the United States Department of 
Agriculture, or the Secretary's delegate.
    STC means the FSA State committee.


Sec.  760.1603   Eligible producers.

    (a) To be an eligible producer, the producer must:
    (1) Be a person, partnership, association, corporation, estate, 
trust, or other legal entity that produces an eligible commodity as a 
landowner, landlord, tenant, or sharecropper, or in the case of rice, 
furnishes land, labor, water, or equipment for a share of the rice 
crop.
    (2) Comply with all provisions of this part and, as applicable:
    (i) 7 CFR part 12--Highly Erodible Land and Wetland Conservation;
    (ii) 7 CFR part 707--Payments Due Persons Who Have Died, 
Disappeared, or Have Been Declared Incompetent;
    (iii) 7 CFR part 718--Provisions Applicable to Multiple Programs;
    (v) 7 CFR part 1400--Payment Limitation & Payment Eligibility; and
    (vii) 7 CFR part 1403--Debt Settlement Policies and Procedures.
    (b) A receiver or trustee of an insolvent or bankrupt debtor's 
estate, an executor or an administrator of a deceased person's estate, 
a guardian of an estate of a ward or an incompetent person, and 
trustees of a trust is considered to represent the insolvent or 
bankrupt debtor, the deceased person, the ward or incompetent, and the 
beneficiaries of a trust, respectively. The production of the receiver, 
executor, administrator, guardian, or trustee is considered to be the 
production of the person or estate represented by the receiver, 
executor, administrator, guardian, or trustee. On-Farm Storage Loss 
Program documents executed by any such person will be accepted by CCC 
only if they are legally valid and such person has the authority to 
sign the applicable documents.
    (c) A minor who is otherwise an eligible producer is eligible to 
receive a program payment only if the minor meets one of the following 
requirements:
    (1) The right of majority has been conferred on the minor by court 
proceedings or by statute;
    (2) A guardian has been appointed to manage the minor's property 
and the applicable program documents are signed by the guardian;
    (3) Any program application signed by the minor is cosigned by a 
person determined by the FSA county committee to be financially 
responsible; or
    (e) A producer must meet the requirements of actively engaged in 
farming, cash rent tenant, and member contribution as specified in 7 
CFR part 1400 to be eligible for program payments.


Sec.  760.1604  Eligible commodities.

    (a) Commodities eligible to be compensated for loss made under this 
part are:
    (1) Covered Commodities;
    (2) Hay; and
    (3) Stored in an on-farm structure that under normal circumstances, 
would have maintained the quality of the commodity throughout harvest 
until marketing or feed if not for the qualifying weather event.
    (b) A commodity produced on land owned or otherwise in the 
possession of the United States that is occupied without the consent of 
the United States is not an eligible commodity.


Sec.  760.1605  Miscellaneous provisions.

    (a) All persons with a financial interest in the legal entity 
receiving payments under this subpart are jointly and severally liable 
for any refund, including related charges, which is determined to be 
due to FSA for any reason.
    (b) In the event that any application for payment under this 
subpart resulted from erroneous information or a miscalculation, the 
payment will be recalculated and any excess refunded to FSA with 
interest to be calculated from the date of the disbursement.
    (c) Any payment to any participant under this subpart will be made 
without regard to questions of title under State law, and without 
regard to any claim or lien against the commodity, or proceeds, in 
favor of the owner or any other creditor except agencies of the U.S. 
Government. The regulations governing offsets and withholdings in part 
792 of this chapter apply to payments made under this subpart.
    (d) Any participant entitled to any payment may assign any 
payment(s) in accordance with regulations governing the assignment of 
payments in part 792 of this chapter.
    (e) The regulations in 7 CFR parts 11 and 780 apply to 
determinations under this subpart.


Sec.  760.1606  General provisions.

    Losses will be determined total production in storage at time of 
loss. Eligibility and payments will be based on physical location of 
storage. Payments will be made on commodities that were completely lost 
or destroyed while in storage due to the qualifying weather related 
event.


Sec.  760.1607  Availability of funds and timing of payments.

    For the On-Farm Storage Loss Program, payments will be issued as 
applications are approved.


Sec.  760.1608  Payment limitation and AGI.

    (a) Per loss year, a person or legal entity, other than a joint 
venture or general partnership, is eligible to receive, directly or 
indirectly payments of not more than $125,000.
    (b) The direct attribution provisions in Sec.  760.1507 of this 
part apply for payment limitation as defined and used in this rule.


Sec.  760.1609  Qualifying disaster events.

    (a) The On-Farm Storage Loss Program will provide a payment to 
eligible producers who suffered losses of harvested commodities while 
such commodities were stored in on farm structures as a result from 
hurricanes, floods, tornadoes, typhoons, volcanic activity, snowstorms, 
and wildfires that occurred in the 2018 and 2019 calendar years.
    (b) For a loss due to or related to an event specified in paragraph 
(a) of this section, the loss must have occurred on acreage that was 
physically located in a county that received a:
    (1) Presidential Emergency Disaster Declaration authorizing public 
assistance for categories C through G or individual assistance due to a 
hurricane occurring in the 2018 or 2019 calendar year; or
    (2) Secretarial Disaster Designation for a hurricane occurring in 
the 2018 or 2019 calendar year.

[[Page 48534]]

    (c) A producer with a loss not located in a physical location 
county that was eligible under paragraph (b)(1) of this section will be 
eligible for a program payment for losses due to hurricane and related 
conditions only if the producer provides supporting documentation that 
is acceptable to FSA from which the FSA county committee determines 
that the loss of the commodity was reasonably related to a qualifying 
disaster event as specified in this subpart and meets all other 
eligibility conditions. Supporting documentation may include furnishing 
climatological data from a reputable source or other information 
substantiating the claim of loss due to a qualifying disaster event.
    (d) For a loss due to wildfires and conditions related to wildfire 
in the 2018 or 2019 calendar year, all counties where wildfires 
occurred, as determined by FSA county committees, are eligible program 
payments; a Presidential Emergency Disaster Declaration or Secretarial 
Disaster Designation for wildfire is not required. The loss must be 
reasonably related to wildfire and conditions related to wildfire, as 
specified in this subpart's definition of qualifying disaster event.
    (e) For a loss due to floods, tornadoes, typhoons, volcanic 
activity, snowstorms or any other directly related weather disaster 
event, the loss must be reasonably related to the disaster event as 
specified in this subpart's definition of qualifying disaster event.


Sec.  760.1610   Eligible and ineligible losses.

    (a) Except as provided in paragraphs (b) of this section, to be 
eligible for payments under this subpart the commodity stored in an 
eligible structure must have suffered a loss due to a qualifying 
disaster event.
    (b) A loss will not be eligible for the On-Farm Storage Loss 
Program this subpart if any of the following apply:
    (1) The cause of loss is determined by FSA to be the result of poor 
management decisions, poor farming practices, or previously damaged 
structures;
    (2) The cause of loss was due to failure of the participant to 
store the commodity in an eligible structure before the qualifying 
disaster event; or
    (3) The cause of loss was due to water contained or released by any 
governmental, public, or private dam or reservoir project if an 
easement exists on the acreage affected by the containment or release 
of the water.
    (c) The following types of loss, regardless of whether they were 
the result of an eligible disaster event, are not eligible losses:
    (1) Losses to crops that have not been harvested.
    (2) Losses to crops not intended for harvest;
    (4) Losses caused by improper storage;
    (5) Losses caused by the application of chemicals; and
    (6) Losses caused by theft.


Sec.  760.1611   Application for payment.

    (a) An application for payment under this subpart must be submitted 
to the FSA county office serving as the farm's administrative county 
office by the close of business on a date that will be announced by the 
Deputy Administrator.
    (b) Once signed by a producer, the application for payment is 
considered to contain information and certifications of and pertaining 
to the producer regardless of who entered the information on the 
application.
    (c) The producer applying for the On-Farm Storage Loss Program 
under this subpart certifies the accuracy and truthfulness of the 
information provided in the application as well as any documentation 
filed with or in support of the application. All information is subject 
to verification or spot check by FSA at any time, either before or 
after payment is issued. Refusal to allow FSA or any agency of the 
Department of Agriculture to verify any information provided will 
result in the participant's forfeiting eligibility for this program. 
FSA may at any time, including before, during, or after processing and 
paying an application, require the producer to submit any additional 
information necessary to implement or determine any eligibility 
provision of this subpart. Furnishing required information is 
voluntary; however, without it FSA is under no obligation to act on the 
application or approve payment. Providing a false certification will 
result in ineligibility and can also be punishable by imprisonment, 
fines, and other penalties.
    (d) The application submitted in accordance with paragraph (a) of 
this section is not considered valid and complete for issuance of 
payment under this subpart unless FSA determines all the applicable 
eligibility provisions have been satisfied and the participant has 
submitted all required documentation.
    (e) Application approval and payment by FSA does not relieve a 
participant from having to submit any form required, but not filed.


Sec.  760.1612   Calculating payments on-farm storage losses.

    (a) Payments made under this subpart to a participant for loss of 
stored commodities are calculated, except hay or silage, by:
    (1) Multiplying the eligible quantity of the eligible commodity by 
the RMA determined price;
    (2) Multiplying the result from paragraph (a)(1) of this section by 
a 75 percent factor.
    (b) Payments made under this subpart to a participant for loss of 
stored hay or silage, by:
    (1) Multiplying the eligible quantity of the eligible commodity by 
a price as determined by the Secretary;
    (2) Multiplying the result from paragraph (b)(1) of this section by 
a 75 percent factor.

0
22. Add subpart Q, consisting of Sec. Sec.  760.1700 through 760.1718, 
to read as follows:

Subpart Q--Milk Loss Program

Sec.
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.

Subpart Q--Milk Loss Program


Sec.  760.1700   Applicability

    This subpart specified the terms and conditions for the Milk Loss 
Program. The Milk Loss Program will provide payments to dairy 
operations for milk that was dumped or removed without compensation 
from the commercial milk market due to the results from hurricanes, 
floods, tornadoes, typhoons, volcanic activity, snowstorms, and 
wildfires that occurred in the 2018 and 2019 calendar year.


Sec.  760.1701   Administration.

    This milk loss 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.

[[Page 48535]]

Sec.  760.1702   Definitions.

    The following definitions apply to the Milk Loss Program.
    Affected farmer means a person who produces whole milk which is 
removed from the commercial market any time or who produces but was 
unable to deliver milk to a commercial market as a result of a 
qualifying event limited to:
    (1) Weather-related event prevented transportation of the milk,
    (2) Weather-related event caused a power outage or structural 
damage causing milk to be unmerchantable.
    Application period means any period during calendar year 2018 and 
2019 which an affected farmer's whole milk is dumped or removed without 
compensation from the commercial market due to a qualified disaster 
event for which application for payment is made.
    Base period means the calendar month or 4-week period immediately 
preceding when the producer was unable to deliver milk to a commercial 
market as a result of a qualifying disaster event.
    Claim period means the calendar month, or months, in which milk was 
dumped or removed and usually is the calendar month immediately 
following the base period.
    Commercial market means:
    (1) The market to which the affected farmer normally delivers his 
whole milk and from which it was removed; or
    (2) The market to which the affected manufacturer normally delivers 
his dairy products and from which they were removed.
    County committee means the FSA county committee.
    Deputy Administrator means the Deputy Administrator for Farm 
Programs, FSA.
    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 dumped 
milk or was unable to deliver milk to the commercial market due to a 
qualifying weather related event.
    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.
    Qualifying disaster event means a hurricane, flood, tornado, 
typhoon, volcanic activity, snowstorm, or wildfire or related condition 
that occurred in the 2018 or 2019 calendar year.
    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.
    Secretary means the Secretary of Agriculture of the United States 
or any officer or employee of the U.S. Department of Agriculture to 
whom the Secretary delegates authority to act as the Secretary.
    State committee means the FSA State committee.
    Whole milk means milk as it is produced by cows.


Sec.  760.1703   Payments to dairy farmers for milk.

    A milk loss payment may be made to an affected farmer who is 
determined by the FSA county committee to be in compliance with all the 
terms and conditions of this subpart in the amount equal to 75 percent 
of the fair market value of the farmer's normal marketings for the 
application period, 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.


Sec.  760.1704   Normal marketings of milk.

    (a) The FSA county committee will determine the affected farmer's 
dumped milk normal marketings which, for the purposes of this subpart, 
will be the sum of the quantities of whole milk for which the farmer 
would have sold in the commercial market in each of the pay periods in 
the application period be it not for the removal of his whole milk from 
the commercial market as a result of a qualifying disaster event.
    (b) Normal marketings for each pay period are based on the average 
daily production during the base period.
    (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 will be reduced so that 
they represent only that part of such pay period which is within the 
application period.


Sec.  760.1705   Fair market value of milk.

    (a) The FSA county committee will determine the fair market value 
of the affected farmer's dumped milk normal marketings, which, for the 
purposes of this subpart, will 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 but for the qualifying disaster 
event.
    (b) The FSA county committee will 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 
FSA 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 FSA county 
committee will deduct from the gross price 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.

[[Page 48536]]

Sec.  760.1706   Information to be furnished.

    The affected farmer must furnish to the FSA county committee 
complete and accurate information sufficient to enable the FSA county 
committee or the Deputy Administrator to make the determinations 
required in this subpart. Such information must 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 dumping or removal of the affected 
farmer's whole milk from the commercial market.
    (b) The specific weather or disaster event and its results on milk 
marketing for the loss period.
    (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 FSA county committee accepts as an accurate record of milk 
production and butterfat tests during the base period.
    (d) The average number of dry cows, bred heifers, and 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 farmer did 
not incur because of the dumping or removal of his whole milk from the 
market, the average price stated by the milk handler will be the 
average gross price paid producers less any such costs. If the milk 
handler does not have such information, the affected farmer will 
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) Such other information as the FSA county committee may request 
to enable the FSA county committee or the Deputy Administrator to make 
the determinations required in this subpart.


Sec.  760.1707   Application for payments for milk loss.

    (a) The affected farmer or his legal representative 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 60 days after the designated deadline announced 
by the Secretary for 2018 and 2019 losses.
    (b) The application for payment will cover application periods of 
at least 30 days, except that, if the entire application period, or the 
last application period, is shorter than 30 days, applications for 
payment may be filed for such shorter period. The application for 
payment must be accompanied by the information required for the Milk 
Loss Program as any other information which will enable the FSA county 
committee to determine whether the making of this payment is precluded 
for any of the reasons as determined ineligible by the Deputy 
Administrator.


Sec.  760.1708   Payment limitation and AGI.

    (a) Per loss year, a person or legal entity, other than a joint 
venture or general partnership, is eligible to receive, directly or 
indirectly payments of not more than $125,000.
    (b) The direct attribution provisions in Sec.  760.1507 apply for 
payment limitation as defined and used in this subpart.


Sec.  760.1709   Limitation of authority.

    (a) FSA 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 FSA State committee may take any action authorized or 
required by the regulations in this subpart to be taken by the FSA 
county committee when such action has not been taken by the FSA county 
committee. The FSA 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 will 
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.  760.1710   Estates and trusts; minors.

    (a) A receiver of an insolvent debtor's estate and the trustee of a 
trust estate will, 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 will 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.
    (b) An affected dairy farmer or manufacturer who is a minor will be 
eligible for milk loss 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.  760.1711   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, milk loss payments due the affected farmer the 
regulations in this part will be applied, as provided in the 
Secretary's setoff regulations, 7 CFR part 13, to such indebtedness.
    (b) Compliance with the provisions of this section will not deprive 
the affected farmer 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.  760.1712   Overdisbursement.

    If the milk loss payment disbursed to an affected farmer exceeds 
the amount authorized under the regulations in this subpart, the 
affected farmer or manufacturer will be personally liable for repayment 
of the amount of such excess.


Sec.  760.1713   Death, incompetency, or disappearance.

    In the case of the death, incompetency, or disappearance of any 
affected farmer who would otherwise receive a milk loss payment, such 
payment may be made to the person or persons specified in the 
regulations

[[Page 48537]]

contained in part 707 of this chapter. The person requesting such 
payment must 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.


Sec.  760.1714   Records and inspection of records.

    (a) The affected farmer, as well as his milk handler and any other 
person who furnished information to such farmer or to the FSA county 
committee for the purpose of enabling such farmer to receive a milk 
loss payment under this subpart, must 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.
    (b) The affected farmer, his milk handler, and any other person who 
furnishes such information to the affected farmer or to the FSA county 
committee must 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.


Sec.  760.1715   Assignment.

    No assignment will be made of any milk loss 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 will be null and void.


Sec.  760.1716   Instructions and forms.

    Affected farmers may obtain information necessary to make 
application for a milk loss payment from the county FSA office.


Sec.  760.1717   Availability of funds.

    Milk loss program payments will be made on a first-come, first-
served basis. Applications received after all funds are used will not 
be paid.


Sec.  760.1718   Calculating payments for milk losses.

    (a) Payments made under this subpart to a participant for loss of 
milk as a result of a qualifying disaster event are calculated as 
follows:
    (1) Amount of the fair market value of the farmer's normal 
marketings for the application period; less
    (2) Any amount the farmer received for whole milk marketed during 
the applications period; and
    (3) Any payment not subject to refund which the farmer received 
from a milk handler with respect to whole milk removed from the 
commercial market during the application period;
    (4) Multiplied by a program factor of 75 percent.
    (b) [Reserved]

Commodity Credit Corporation

Chapter XIV

PART 1416--EMERGENCY AGRICULTURAL DISASTER ASSISTANCE PROGRAMS

0
23. The authority citation for part 1416 is revised to read as follows:

    Authority:  Title I, Pub. L. 113-79, 128 Stat. 649; Title I, 
Pub. L. 115-123; Title VII, Pub. L. 115-141; and Title I, Pub. L. 
116-20.

Subpart E--Tree Assistance Program

0
24. Amend Sec.  1416.400 by revising paragraph (c) to read as follows:


Sec.  1416.400   Applicability.

* * * * *
    (c) Eligible pecan tree losses incurred in the 2017 and 2018 
calendar years not meeting the mortality loss threshold of paragraph 
(b) of this section with a tree mortality loss in excess of 7.5 percent 
(adjusted for normal mortality) will be compensated for eligible losses 
as specified in Sec.  1416.406. For 2017 calendar year losses, up to a 
maximum of $15,000,000 is available.

Richard Fordyce,
Administrator, Farm Service Agency.

Robert Stephenson,
Executive Vice President, Commodity Credit Corporation.

Robert Johansson,
Chairman, Federal Crop Insurance Corporation.
[FR Doc. 2019-19932 Filed 9-11-19; 4:15 pm]
 BILLING CODE 3410-05-P