[Federal Register Volume 85, Number 230 (Monday, November 30, 2020)]
[Rules and Regulations]
[Pages 76420-76428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26036]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
7 CFR Parts 407 and 457
RIN 0563-AC70
[Docket ID FCIC-20-0008]
Area Risk Protection Insurance Regulations; Common Crop Insurance
Policy Basic Provisions; Common Crop Insurance Regulations, Sunflower
Seed Crop Insurance Provisions; and Common Crop Insurance Regulations,
Dry Pea Crop Insurance Provisions
AGENCY: Federal Crop Insurance Corporation, USDA.
ACTION: Final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Crop Insurance Corporation (FCIC) amends the Area
Risk Protection Insurance (ARPI) Regulations; Common Crop Insurance
Policy (CCIP), Basic Provisions; Common Crop Insurance Regulations,
Sunflower Seed Crop Insurance
[[Page 76421]]
Provisions (Sunflower Seed Crop Provisions); and Common Crop Insurance
Regulations, Dry Pea Crop Insurance Provisions (Dry Pea Crop
Provisions). The intended effect of this action is to improve prevented
planting provisions, revise beginning farmer or rancher and veteran
farmer or rancher provisions and clarify arbitration provisions. In
addition to these changes, FCIC is making clarifications to the Dry Pea
Crop Provisions and revising the cancellation and termination dates in
the Sunflower Seed Crop Provisions. The changes to the policy made in
this rule are applicable for the 2021 and succeeding crop years for
crops with a contract change date on or after November 30, 2020. For
all other crops, the changes to the policy made in this rule are
applicable for the 2022 and succeeding crop years.
DATES:
Effective Date: This final rule is effective November 30, 2020.
Comment Date: We will consider comments that we receive by the
close of business January 29, 2021. FCIC may consider the comments
received and may conduct additional rulemaking based on the comments.
ADDRESSES: We invite you to submit comments on this rule. You may
submit comments by either of the following methods, although FCIC
prefers that you submit comments electronically through the Federal
eRulemaking Portal:
Federal eRulemaking Portal: Go to https://www.regulations.gov/docket?D=FCIC-20-0008 and follow the instructions
for submitting comments.
Mail: Director, Product Administration and Standards
Division, Risk Management Agency, US Department of Agriculture, P.O.
Box 419205, Kansas City, MO 64133-6205. In your comment, specify docket
ID FCIC-20-0008.
Comments will be available for viewing online at
www.regulations.gov. Comments received will be posted without change,
including any personal information provided. 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: Francie Tolle; telephone (816) 926-
7829; or email [email protected].
SUPPLEMENTARY INFORMATION:
Background
FCIC serves America's agricultural producers through effective,
market-based risk management tools to strengthen the economic stability
of agricultural producers and rural communities. The Risk Management
Agency (RMA) administers the FCIC regulations. FCIC is committed to
increasing the availability and effectiveness of Federal crop insurance
as a risk management tool. Approved Insurance Providers (AIPs) sell and
service Federal crop insurance policies in every state and in Puerto
Rico through a public-private partnership. FCIC reinsures the AIPs who
share the risk associated with catastrophic losses due to major weather
events. FCIC's vision is to secure the future of agriculture by
providing world class risk management tools to rural America.
Federal crop insurance policies typically consist of the Basic
Provisions, the Crop Provisions, the Special Provisions, the Commodity
Exchange Price Provisions, if applicable, other applicable endorsements
or options, the actuarial documents for the insured agricultural
commodity, the Catastrophic Risk Protection Endorsement, if applicable,
and the applicable regulations published in 7 CFR chapter IV.
FCIC amends the ARPI Basic Provisions, the CCIP Basic Provisions,
the Sunflower Seed Crop Provisions, and the Dry Pea Crop Provisions.
The changes to the policy made in this rule are applicable for the 2021
and succeeding crop years for crops with a contract change date on or
after November 30, 2020. For all other crops the changes to the policy
made in this rule are applicable for the 2022 and succeeding crop
years.
ARPI Basic Provisions
The changes to the ARPI Basic Provisions (7 CFR part 407) are:
FCIC is revising sections 23(d)(1), (2), and (5)(i) of the ARPI
Basic Provisions to clarify the responsibility is on the producer to
start dispute resolution through arbitration when the producer
disagrees with an AIP determination. There has been confusion that this
provision could require both the producer and the AIP to start
arbitration prior to litigation.
FCIC is also making non-substantive changes to the regulation.
Examples include making references consistent, making grammatical
corrections, and clarifying word changes. These revisions are editorial
in nature and are intended to provide clarity to the regulation.
CCIP Basic Provisions
The changes to the CCIP Basic Provisions (7 CFR part 457.8) are:
FCIC is revising section 3(l) to allow a producer that qualifies as
a beginning farmer or rancher (BFR), or veteran farmer or rancher
(VFR), to receive a yield based on the actual production history (APH)
of the previous producer of the crop or livestock on the acreage, if
the BFR or VFR was previously involved in the decision-making or
physical activities of the crop or livestock on any farm. Previously,
the provisions specified that the APH history of the acreage could only
be used if the BFR or VFR was previously involved on the specific
acreage acquired.
Prevented planting is a feature of many crop insurance plans that
provides a partial payment to cover certain pre-plant costs for a crop
that was prevented from being planted due to an insurable cause of
loss. After unprecedented prevented planting in 2019, FCIC examined how
to improve the prevented planting coverage within a policy. FCIC held
discussions with stakeholders via a Prevented Planting Taskforce that
included FCIC and industry representatives. The taskforce reviewed the
previous policy, discussed impacts, and explored policy improvements.
The goal of the taskforce was to improve coverage for producers when
needed most, but not replace market incentives with government
incentives, while maintaining program integrity. The taskforce
identified several issues that are extremely uncommon but could occur
in years when prevented planting is catastrophic and widespread. The
following lists the changes in section 17 of the CCIP Basic Provisions:
FCIC is revising section 17(e)(1)(i) to add a reference to the new
provisions in section 17(e)(1)(ii)(E).
FCIC is revising section 17(e)(1)(ii) to allow the use of an
intended acreage report for the first 2 consecutive crop years the
producer farms in a new county, instead of only the first year.
The CCIP Basic Provisions define ``intended acreage report'' as a
report of the acreage a producer intends to plant, by crop, for the
current crop year and used solely for the purpose of establishing
eligible prevented planting acreage, as required in section 17.
Further, section 17 states that if the insured did not plant any crop
in the county for which prevented planting coverage was available in
the 4 most recent crop years, the producer must complete and submit an
intended acreage report to the AIP by the sales closing date, or within
10 days of land acquisition after the sales closing date, to establish
the potential maximum number of eligible prevented planting acres.
[[Page 76422]]
Based on the previous provision, when a producer adds new land in a
new county, the producer could only indicate intended acres for the
first year. An issue arises in the second year if the producer,
following good farming practices for crop rotation, intends to plant a
different crop. Because the producer only has 1 year of history in the
county, the producer is limited in the amount of acreage (and type of
crop) that can be claimed for prevented planting purposes.
For example, a producer adds land in a new county. The first year,
the producer files an intended acreage report for wheat and plants the
entire acreage to wheat. The second year, the producer intends to plant
corn, but is prevented from planting due to an insurable cause of loss.
Under the previous regulations, the producer would not have any
eligible prevented planting acreage for corn because they only have
eligible wheat acres based on their first year's history in their APH
database. The producer would receive a prevented planting payment based
on the eligible wheat acres. This would result in a different prevented
planting payment than the intended corn crop, which may not be
reflective of their pre-plant costs.
As specified above, FCIC will revise section 17(e)(1)(ii) to allow
the producer to submit an intended acreage report for the first 2
consecutive crop years the producer farms in a new county. In the above
scenario, this will allow the producer to receive a prevented planting
payment based on the acres contained on the intended acreage report for
the second year and the payment will be based on corn. This change
acknowledges rotational practices are a good farming practice. It will
also result in more accurate prevented planting payments because they
will be based on the producer's actual intended plantings for that
year.
FCIC is revising section 17(e)(2) to provide that if following a
failed first insured crop, an uninsured second crop is planted on the
same acres within the same crop year, the planted acres of the
uninsured crop will not be subtracted from the eligible prevented
planting acreage.
Section 17(e)(2) of the CCIP Basic Provisions previously stated,
``Any eligible acreage determined in accordance with section 17(e)(1)
will be reduced by subtracting the number of acres of the crop (insured
and uninsured) that are timely and late planted, including acreage
specified in section 16(b).'' If following a failed first insured crop,
the producer plants an uninsured second crop on the same acres within
the same crop year; acres from both plantings (first insured crop and
second uninsured crop) are subtracted from the eligible prevented
planting acreage, even though it is the same physical land subtracted
twice. On occasion, this can lead to the producer having acres that do
not receive a prevented planting payment due to inadequate eligible
prevented planting acres. This occurrence is extremely rare, but it
affected a small number of producers in the 2019 crop year. To
illustrate the rarity of these circumstances, for the reduction to
apply under the previous regulation, all of the following must have
been true for the producer:
(1) Planted a first crop that fails,
(2) Planted a second crop on the same acreage following the failed
crop, and
(3) Exhausted eligible prevented planting acres available to pay a
claim.
The underlying concern is that the same physical acres are
subtracted twice from overall prevented planting eligible acres. To
illustrate the inequity of the double subtraction, the following is a
simple example of the previous provisions. A producer has 100 total
acres of cropland (fields A & B) and intends to plant all 100 acres to
corn. Based on production history, the producer also has 100 prevented
planting eligible acres (50 for corn and 50 for soybeans). The producer
plants 50 acres of corn in field A, resulting in 50 corn acres
subtracted from eligible prevented planting acres. At this point, there
are 50 soybean eligible prevented planting acres and zero corn eligible
prevented planting acres. A flood destroys the 50 acres of corn in
field A, the AIP determines it is not practical to replant, and the
producer does not have to replant to retain insurance. The producer
files a claim for indemnity for the crop loss and receives an indemnity
for the field A 50 destroyed corn acres. Later, the producer plants the
50 acres in field A to soybeans that are not insured. The second
planting of field A (uninsured soybeans) would result in the
subtraction of 50 acres of eligible prevented planting acres of
soybeans. This equates to 100 eligible prevented planting acres being
subtracted from the same 50 physical acres (field A); leaving 0
eligible prevented planting acres remaining for the 50 physical acres
prevented from planting in field B that remains unplanted.
FCIC is removing the double subtraction on field A by no longer
subtracting the uninsured second planting from eligible prevented
planting acres. This would allow a prevented planting payment on field
B, if those acres were unable to be planted, and if other policy
provisions for prevented planting claims are met.
To illustrate the inequity of the previous provisions in a
different way, see the following scenarios below. These scenarios show
the disparate treatment of two producers in the same situation, except
that their 100 prevented planting eligible acres are for different
crops. Scenario 1: Producer has 100 acres of corn prevented planting
eligible acres and 0 acres of soybean prevented planting eligibility.
There is no impact on prevented planting eligibility for field B. Since
there are 0 acres of soybean eligible prevented planting acres, the 50
planted acres of uninsured soybeans (field A) would not be subtracted
from prevented planting eligibility. In this case, the producer would
remain eligible for a prevented planting payment on the 50 acres of
corn (field B) that were prevented from being planted.
----------------------------------------------------------------------------------------------------------------
Planted
Crop Eligible (insured & Prevented from Available for
acres uninsured) planting payment
----------------------------------------------------------------------------------------------------------------
Corn............................................ 100 50 50 50
Soybeans........................................ 0 50 0 0
----------------------------------------------------------------------------------------------------------------
Scenario 2: A producer has 50 acres of prevented planting corn
eligibility and 50 acres of prevented planting soybean eligibility;
prevented planting eligibility is eliminated on field B. Previously,
prevented planting eligible acres are reduced by planted acres of
insured and uninsured crops, and the 50 acres of planted and then
failed corn in field A would exhaust corn prevented planting
eligibility. The planting of 50 acres of uninsured soybeans in field A
would exhaust the soybean prevented planting eligibility as well. There
would be no remaining eligible prevented
[[Page 76423]]
planting acres for the 50 acres of corn prevented from being planted in
field B.
----------------------------------------------------------------------------------------------------------------
Planted
Crop Eligible (insured & Prevented from Available for
acres uninsured) planting payment
----------------------------------------------------------------------------------------------------------------
Corn............................................ 50 50 50 0
Soybeans........................................ 50 50 0 0
----------------------------------------------------------------------------------------------------------------
Regulation change: For this example, the change to the regulation
results in Scenario 2 having the same result as Scenario 1 with 50
eligible acres of prevented planting soybeans which can be used to make
the corn payment claimed. Changing this to not subtract the uninsured
acres of soybeans planted on field A will be a more equitable treatment
of producers under catastrophic loss conditions.
----------------------------------------------------------------------------------------------------------------
Eligible Planted Planted Prevented Available for
Crop acres (insured) (uninsured) from planting payment
----------------------------------------------------------------------------------------------------------------
Corn............................ 50 50 0 50 0
Soybeans........................ 50 0 50 0 50
----------------------------------------------------------------------------------------------------------------
FCIC is revising section 17(f)(1) to provide an exception if the
producer can prove intent to plant based on inputs applied or available
to apply, rotation, etc., the producer could then be paid a prevented
planting payment based on their intended crop, even if it's different
than the crop that was planted in the field.
Previously, section 17(f)(1) of the CCIP Basic Provisions stated,
``Any prevented planting acreage within a field that contains planted
acreage will be considered to be acreage of the same crop, type, and
practice that is planted in the field.''
For example, a producer intends to plant a 100-acre field to corn,
but it is too wet prior to the final plant date. Prior to the end of
the late planting period for corn, she begins planting the field to
soybeans. She planted 20 acres of soybeans before getting rained out.
The producer submits a claim for the remaining 80 acres as prevented
planting corn. The producer does not have history of producing both
corn and soybeans in the same field in the same crop year. Prevented
planting is common to the area and the producer has adequate corn
prevented planting eligible acres to cover the 80 acres prevented from
planting.
As a result, the producer has receipts for seed and other inputs to
prove intent to plant corn. She expects to be paid prevented planting
for corn at a higher per acre amount on 80 acres. However, because she
planted 20 acres of soybeans in the same field as her prevented
planting claim, section 17(f)(1) requires the 80 acres to be considered
soybeans and be paid at a lower per acre amount. The previous provision
may have incentivized the producer to not plant soybeans in order to
maintain the higher prevented planting payment on corn. Revising the
provision could reduce prevented planting payments when this situation
arises in the future.
With the revisions to section 17(f)(1) to provide an exception if
the producer can prove intent to plant by inputs applied or available
to apply, rotation, etc., in the example, the producer could provide
documentation that fertilizer application, seed purchases, historical
crop rotation patterns, etc. were consistent with intentions to plant
corn. The producer could then be paid using available corn prevented
planting acres, rather than having to consider the prevented planting
acres soybeans.
FCIC is adding a new section 17(f)(5)(iii) to clarify prevented
planting coverage will not be provided if the act of haying or grazing
a cover crop contributed to the acreage being prevented from planting
or the cover crop was otherwise harvested prior to the end of the late
planting period. In a previous final rule, section 17(f)(5)(ii) was
revised to remove the words ``or cover'' following the word
``volunteer,''. In addition, FCIC removed a Special Provisions
statement that read: ``In lieu of Section 17(f)(5)(ii) of the Common
Crop Insurance Basic Provisions, haying or grazing a cover crop will
not impact eligibility for a prevented planting payment provided such
action did not contribute to the acreage being prevented from
planting.'' FCIC received comments regarding concerns this change could
lead to misunderstanding and unforeseen consequences. Some may
interpret this to mean that a cover crop could be hayed or grazed even
if the act contributed to the acreage being prevented from planting or
that a cover crop could be otherwise harvested prior to the end of the
late planting period. Therefore, the additional language incorporates
the previous Special Provisions statements.
FCIC is revising section 17(f)(8) to implement the ``1 in 4''
requirement nationwide (beyond just the Prairie Pothole National
Priority Area discussed below). Acreage must be physically available
for planting to be eligible for a prevented planting payment. The ``1
in 4'' requirement is contained in a Special Provisions statement and
is an extension of the CCIP Basic Provisions that the acreage must be
physically available for planting. The ``1 in 4'' requirement states
that the acreage must have been planted to a crop, insured, and
harvested (or if not harvested, adjusted for claim purposes due to an
insurable cause of loss) in at least 1 out of the previous 4 crop
years.
The ``1 in 4'' requirement has been in place since the 2012 crop
year in the Prairie Pothole National Priority Area, which encompasses
the states of Iowa, Minnesota, Montana, North Dakota, and South Dakota.
The requirement in that area addressed prevented planting payments that
were repeatedly made on acreage not physically available for planting
(that is, acreage that is perpetually wet, such as potholes). Adding
the language to the CCIP Basic Provisions for national applicability
will allow for equal treatment for all areas of the United States and
further mitigate waste, fraud and abuse for all acreage that is not
physically available for planting to a crop to be insured. The Special
Provisions statement had a requirement that the acreage must have been
harvested, or if not harvested, was adjusted for claim purposes under
the
[[Page 76424]]
authority of the Act due to an insured cause of loss (other than a
cause of loss related to flood or excess moisture). FCIC identified
perpetual drought conditions as a vulnerability and received requests
to expand the ``1 in 4'' requirement in previous years. Therefore, FCIC
added that in order to meet the ``1 in 4'' requirement, claim purposes
could not be ``due to drought'' to address prevented planting payments
that were repeatedly made on acreage not physically available for
planting on perpetually dry acreage when a crop was not harvested. This
incorporates provisions from a Special Provisions statement and as a
result, the Special Provisions statement is removed.
FCIC is revising section 20(a) and 20(b)(1) to clarify the
responsibility is on the producer to start dispute resolution through
arbitration when the producer disagrees with an AIP determination. The
AIP is the only party that makes a determination so the producer is the
only party to the contract that could disagree with the determination
the AIP made. There has been confusion that this provision could
require both the producer and the AIP to start arbitration prior to
litigation.
FCIC is also making non-substantive changes to the regulation.
Examples include making references consistent, making grammatical
corrections, and clarifying word changes. These revisions are editorial
in nature and are intended to provide clarity to the regulation.
Sunflower Seed Crop Insurance Provisions
FCIC is revising section 4 of the Sunflower Seed Crop Insurance
Provisions (7 CFR part 457.108) to change the cancellation and
termination dates in 4 Texas counties from March 15 to January 31 to
align with the January 31 sales closing date in these counties. This
change is being made after a data mining exercise where FCIC identified
that the sales closing date and cancellation/termination date did not
match in these 4 counties.
FCIC is also making non-substantive changes to the regulation,
including removing commas and correcting a spelling error.
Dry Pea Crop Insurance Provisions
FCIC is making non-substantive changes in the Dry Pea Crop
Insurance Provisions (7 CFR part 457.140). Examples include making
technical corrections and clarifying language changes. Changes were
made to the Dry Pea Crop Insurance Provisions in a Final rule with
request for comments, published in the Federal Register on June 26,
2020 (85 FR 38276). In reviewing the changes made, FCIC found some of
the changes described in that rule were not made in the Code of Federal
Regulations. Additionally, FCIC received comments to that final rule
and is making revisions that are editorial in nature are intended to
provide clarity to the regulation. There are other comments that FCIC
received in response to the final rule published June 26, 2020, that
FCIC is continuing to review.
Effective Date and Notice and Comment
The Administrative Procedure Act (APA, 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 specified actions,
including matters relating to contracts. This rule governs contracts
for crop insurance policies and therefore falls within that exemption.
Although not required by APA or any other law, FCIC has chosen to
request comments on this rule.
For major rules, the Congressional Review Act requires a delay to
the effective date of 60 days after publication to allow for
Congressional review. This rule is not a major rule under the
Congressional Review Act, as defined by 5 U.S.C. 804(2). Therefore,
this final rule is effective November 30, 2020.
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
not significant under Executive Order 12866, ``Regulatory Planning and
Review,'' and therefore, OMB has not reviewed this rule and analysis of
the costs and benefits is not required under either Executive Order
12866 or 13563.
Executive Order 13771, ``Reducing Regulation and Controlling
Regulatory Costs,'' requires that in order to manage the private costs
required to comply with Federal regulations that for every new
significant or economically significant regulation issued, the new
costs must be offset by savings from deregulatory actions. As this rule
is designated as not significant, it is not subject to Executive Order
13771. In a general response to the requirements of Executive Order
13777, USDA created a Regulatory Reform Task Force, and USDA agencies
were directed to remove barriers, reduce burdens, and provide better
customer service both as part of the regulatory reform of existing
regulations and as an ongoing approach. FCIC reviewed this regulation
and made changes to improve any provision that was determined to be
outdated, unnecessary, or ineffective.
Clarity of the Regulation
Executive Order 12866, as supplemented by Executive Order 13563,
requires each agency to write all rules in plain language. In addition
to your substantive comments on this rule, we invite your comments on
how to make the rule easier to understand. For example:
Are the requirements in the rule clearly stated? Are the
scope and intent of the rule clear?
Does the rule contain technical language or jargon that is
not clear?
Is the material logically organized?
Would changing the grouping or order of sections or adding
headings make the rule easier to understand?
Could we improve clarity by adding tables, lists, or
diagrams?
Would more, but shorter, sections be better? Are there
specific sections that are too long or confusing?
What else could we do to make the rule easier to
understand?
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by
SBREFA, generally requires an agency to prepare a regulatory analysis
of any rule whenever an agency is required by APA 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 as noted above, this rule is exempt from APA and no other law
requires that a proposed rule be published for this rulemaking
initiative.
[[Page 76425]]
Environmental Review
In general, the environmental impacts of rules are to be considered
in a manner consistent with the provisions of the National
Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347) and the
regulations of the Council on Environmental Quality (40 CFR parts 1500-
1508). FCIC conducts programs and activities that have been determined
to have no individual or cumulative effect on the human environment. As
specified in 7 CFR 1b.4, FCIC is categorically excluded from the
preparation of an Environmental Analysis or Environmental Impact
Statement unless the FCIC Manager (agency head) determines that an
action may have a significant environmental effect. The FCIC Manager
has determined this rule will not have a significant environmental
effect. Therefore, FCIC will not prepare an environmental assessment or
environmental impact statement for this action and this rule serves as
documentation of the programmatic environmental compliance decision.
Executive Order 12372
Executive Order 12372, ``Intergovernmental Review of Federal
Programs,'' requires consultation with State and local officials that
would be directly affected 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 regarding 7 CFR part 3015, subpart V (48 FR 29115, June
24, 1983), the programs and activities in this rule are excluded from
the scope of Executive Order 12372.
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. Before any judicial actions may be brought
regarding the provisions of this rule, the administrative appeal
provisions of 7 CFR part 11 are to 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.
RMA has assessed the impact of this rule on Indian Tribes and
determined that this rule does not, to our knowledge, have Tribal
implications that require Tribal consultation under E.O. 13175. The
regulation changes do not have Tribal implications that preempt Tribal
law and are not expected have a substantial direct effect on one or
more Indian Tribes. If a Tribe requests consultation, RMA will work
with the USDA Office of Tribal Relations to ensure meaningful
consultation is provided where changes, additions and modifications
identified in this rule are not expressly mandated by Congress.
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 of State, local, and Tribal governments or the
private sector. Agencies generally must prepare a written statement,
including cost benefits 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 subject to the requirements of sections 202 and 205 of
UMRA.
Federal Assistance Program
The title and number of the Federal Domestic Assistance Program
listed in the Catalog of Federal Domestic Assistance to which this rule
applies is No. 10.450--Crop Insurance.
Paperwork Reduction Act of 1995
In accordance with the provisions of the Paperwork Reduction Act of
1995 (44 U.S.C. chapter 35, subchapter I), the rule does not change the
information collection approved by OMB under control numbers 0563-0053.
E-Government Act Compliance
FCIC is 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.
List of Subjects
7 CFR Part 407
Acreage allotments, Administrative practice and procedure, Barley,
Corn, Cotton, Crop insurance, Peanuts, Reporting and recordkeeping
requirements, Sorghum, Soybeans, Wheat.
7 CFR Part 457
Acreage allotments, Crop insurance, Reporting and recordkeeping
requirements.
Final Rule
For the reasons discussed above, FCIC amends 7 CFR parts 407 and
457, effective for the 2021 and succeeding crop years for crops with a
contract change date on or after November 30, 2020, and for the 2022
and succeeding crop years for all other crops, as follows:
PART 407--AREA RISK PROTECTION INSURANCE REGULATIONS
0
1. The authority citation for 7 CFR part 407 continues to read as
follows:
Authority: 7 U.S.C. 1506(l) and 1506(o).
0
2. Amend Sec. 407.9 as follows:
0
a. In section 1:
0
i. In the definition of ``Code of Federal Regulations (CFR)'', remove
the phrase ``http://ecfr.gpoaccess.gov/'' and add ``https://www.ecfr.gov/'' in its place;
0
ii. In the definition of ``total premium'', remove the phrase ``section
7(e)(1)'' and add ``section 7(d)(1)'' in its place;
0
b. In section 2:
[[Page 76426]]
0
i. In paragraph (k)(1)(ii), remove the phrase ``sections (k)(2)(i)(A),
(B) or (D)'' and add ``sections 2(k)(2)(i)(A), (B), or (D)'' in its
place; and
0
ii. In paragraph (k)(2)(ii), add a comma following the phrase
``2(k)(2)(i)(A), (B)''; and
0
c. In section 13, revise paragraph (d)(1);
0
d. In section 23 [Reinsured policies], revise paragraph (d)(1)
introductory text, (d)(2), and (d)(5)(i).
The revisions read as follows:
Sec. 407.9 Area risk protection insurance policy.
* * * * *
13. Indemnity and Premium Limitations
* * * * *
(d) * * *
(1) If the records you provided are from acreage you double cropped
in at least two of the last four crop years, you may apply your history
of double cropping to any acreage of the insured crop in the county
(for example you have 100 cropland acres in the county and have double
cropped wheat and soybeans on all 100 acres in the county and you
acquire an additional 100 acres in the county, you can apply your
history of 100 double cropped acres to any of the 200 acres in the
county); or
* * * * *
[Reinsured Policies]
23. Mediation, Arbitration, Appeal, Reconsideration, and Administrative
and Judicial Review
* * * * *
(d) * * *
(1) If you do not agree with any determination not covered by
sections 23(a) and (c), the disagreement may be resolved through
mediation. To resolve any dispute through mediation, you and we must
both:
* * * * *
(2) If the disagreement cannot be resolved through mediation, or
you and we do not agree to mediation, you must timely seek resolution
through arbitration in accordance with the rules of the American
Arbitration Association (AAA), unless otherwise stated in this
subsection or rules are established by FCIC for this purpose. Any
mediator or arbitrator with a familial, financial or other business
relationship to you or us, or our agent or loss adjuster, is
disqualified from hearing the dispute.
* * * * *
(5) * * *
(i) You must initiate arbitration proceedings within 1 year of the
date we denied your claim or rendered the determination with which you
disagree, whichever is later;
* * * * *
PART 457--COMMON CROP INSURANCE REGULATIONS
0
3. The authority citation for part 457 continues to read as follows:
Authority: 7 U.S.C. 1506(l) and 1506(o).
0
4. Amend Sec. 457.8 as follows:
0
a. Under the heading ``FCIC Policies'', in the first paragraph, remove
the phrase ``on the RMA's website'' and add ``on RMA's website'' in its
place;
0
b. Under the heading ``Reinsured Policies'', in the first paragraph,
remove the phrase ``bulletins) published on the RMA's website'' and add
``bulletins), published on RMA's website'' in its place;
0
c. In section 1:
0
i. Revise the definition of ``approved yield'';
0
ii. In the definition of ``Code of Federal Regulations (CFR)'', remove
the website address of ``http://www.access.gpo.gov/'' and add ``https://www.ecfr.gov/'' in its place;
0
iii. In the definition of ``RMA's website'', add the word ``or''
following the website address of ``www.rma.usda.gov;''
0
iv. Revise the definition of ``second crop'';
0
d. In section 3, in paragraph (l)(1), remove the phrase ``acreage you
were previously involved with'' and add ``new acreage'' in its place;
0
e. Revise section 15(i)(1);
0
f. In section 17:
0
i. In section 17(e)(1)(i), add the phrase ``, unless you qualify for
the exception in section 17(e)(1)(ii)(E)'' at the end of the paragraph
before the colon;
0
ii. In section 17(e)(1)(i)(B)(3), remove the phrase ``you lease the
previous year and continue to leased'' and add ``you leased the
previous year and continue to lease'' in its place;
0
iii. Add paragraphs (e)(1)(ii)(E) and (F);
0
iv. Revise paragraph (e)(2);
0
v. In paragraph (f)(1) introductory text, remove the phrase ``to be'';
0
vi. In paragraph (f)(1)(ii), remove the word ``or'' at the end of the
paragraph;
0
vii. Revise paragraph (f)(1)(iii);
0
viii. Add paragraph (f)(1)(iv);
0
ix. Revise paragraph (f)(4)(ii) introductory text and (f)(4)(ii)(A);
0
x. Add paragraph (f)(5)(iii);
0
xi. Add paragraphs (f)(8)(i) and (ii);
0
g. In section 18, in paragraph (f)(1)(iii), add a comma following the
phrase ``for the crop''; and
0
h. In section 20 [For reinsured policies]:
0
i. Revise paragraph (a) introductory text;
0
ii. Revise paragraph (b)(1);
The revisions and additions read in part as follows:
Sec. 457.8 The application and policy.
* * * * *
Common Crop Insurance Policy
* * * * *
1. Definitions.
* * * * *
Approved yield. The actual production history (APH) yield,
calculated and approved by the verifier, used to determine the
production guarantee by summing the yearly actual, assigned, adjusted
or unadjusted transitional yields and dividing the sum by the number of
yields contained in the database, which will always contain at least
four yields. The database may contain up to 10 consecutive crop years
of actual or assigned yields. The approved yield may have yield options
elected under section 36, revisions according to section 3, or other
limitations according to FCIC procedures applied when calculating the
approved yield.
* * * * *
Second crop. With respect to a single crop year, the next
occurrence of planting any agricultural commodity for harvest following
a first insured crop on the same acreage. The second crop may be the
same or a different agricultural commodity as the first insured crop,
except the term does not include a replanted crop. If following a first
insured crop, a cover crop that is planted on the same acreage and
harvested for grain or seed is considered a second crop. A cover crop
that is covered by FSA's noninsured crop disaster assistance program
(NAP) or receives other USDA benefits associated with forage crops will
be considered a second crop. A crop meeting the conditions stated in
this definition is considered to be a second crop regardless of whether
or not it is insured.
* * * * *
15. Production Included in Determining an Indemnity and Payment
Reductions
* * * * *
(i) * * *
(1) If the records you provided are from acreage you double cropped
in at least two of the last four crop years, you may apply your history
of double cropping to any acreage of the insured crop in the county
(for example, you have 100 cropland acres in the county
[[Page 76427]]
and have double cropped wheat and soybeans on all 100 acres in the
county and you acquire an additional 100 acres in the county, you can
apply your history of 100 double cropped acres to any of the 200 acres
in the county); or
* * * * *
17. Prevented Planting
* * * * *
(e) * * *
(1) * * *
(ii) * * *
(E) If you were eligible to file an intended acreage report the
first crop year, you may file an intended acreage report for the second
crop year. If you choose to file an intended acreage report for the
second crop year, the number of eligible acres will be the number of
acres specified on your intended acreage report and not the number of
eligible acres determined in accordance with section 17(e)(1)(i).
(F) You cannot file an intended acreage report more than 2
consecutive crop years.
* * * * *
(2) Any eligible acreage determined in accordance with section
17(e)(1) will be reduced by subtracting the number of acres of the crop
(insured and uninsured) that are timely and late planted, including
acreage specified in section 16(b), unless your first insured crop
failed and you plant an uninsured second crop on the same acres within
the same crop year, the acres for the uninsured second crop will not be
subtracted from the eligible prevented planting acreage.
* * * * *
(f) * * *
(1) * * *
(iii) The insured crop planted in the field would not have been
planted on the remaining prevented planting acreage (e.g., where due to
Crop Provisions, Special Provisions, or processor contract
specifications rotation requirements would not be met, or you already
planted the total number of acres specified in the processor contract);
or
(iv) The acreage that was prevented from being planted constitutes
at least 20 acres or 20 percent of the total insurable acreage in the
field and you provide proof that you intended to plant another crop or
crop type on the acreage (including, but not limited to inputs
purchased, applied or available to apply, or that acreage was part of a
crop rotation).
* * * * *
(4) * * *
(ii) For the insured crop that is prevented from being planted, you
provide records acceptable to us of acreage and production that show
(your double cropping history is limited to the highest number of acres
double cropped within the applicable four-year period unless your
double cropping history is determined in accordance with section
15(i)(3)):
(A) You have double cropped acreage in at least 2 of the last 4
crop years in which the insured crop that is prevented from being
planted in the current crop year was grown (you may apply your history
of double cropping to any acreage of the insured crop in the county
(for example, you have 100 cropland acres in the county and have double
cropped wheat and soybeans on all 100 acres and you acquire an
additional 100 acres in the county, you can apply your history of 100
double cropped acres to any of the 200 acres in the county)); or
* * * * *
(5) * * *
(iii) The act of haying or grazing a cover crop contributed to the
acreage being prevented from being planted or the cover crop was
otherwise harvested prior to the end of the late planting period.
* * * * *
(8) * * *
(i) In order for acreage to be considered physically available for
planting, the acreage must:
(A) Be free of trees, rocky outcroppings, or other factors that
prevent proper and timely preparation of the seedbed for planting and
harvest of the crop in the crop year;
(B) Not be enrolled in a USDA program that removes the acreage from
crop production;
(C) Not be planted to a perennial crop (i.e., trees or vines either
planted on the acreage, or not removed from the acreage in a proper or
timely manner, thus preventing the timely planting of a crop for the
crop year);
(D) Not have pasture, rangeland or forage in place (see section
17(f)(6));
(E) In at least 1 of the 4 most recent crop years immediately
preceding the current crop year, have been planted to a crop:
(1) Using recognized good farming practices;
(2) Insured under the authority of the Act; and
(3) That was harvested, or if not harvested, was adjusted for claim
purposes under the authority of the Act due to an insured cause of loss
(other than a cause of loss related to flood, excess moisture, drought,
or other cause of loss specified in the Special Provisions).
(ii) Once any acreage does not satisfy the criteria set-forth in
section 17(f)(8)(i)(E)(1), (2), and (3) in 1 of the 4 most recent crop
years immediately preceding the current crop year, such acreage will be
considered physically unavailable for planting until the acreage has
been planted to a crop in accordance with 17(f)(8)(i)(E)(1), (2), and
(3) for 2 consecutive crop years.
* * * * *
[For Reinsured Policies]
20. Mediation, Arbitration, Appeal, Reconsideration, and Administrative
and Judicial Review
(a) If you do not agree with any determination made by us except
those specified in section 20(d) or (e), the disagreement may be
resolved through mediation in accordance with section 20(g). If the
disagreement cannot be resolved through mediation, or you and we do not
agree to mediation, you must timely seek resolution through arbitration
in accordance with the rules of the American Arbitration Association
(AAA), except as provided in sections 20(c) and (f), and unless rules
are established by FCIC for this purpose. Any mediator or arbitrator
with a familial, financial or other business relationship to you or us,
or our agent or loss adjuster, is disqualified from hearing the
dispute.
* * * * *
(b) * * *
(1) You must initiate arbitration proceedings within 1 year of the
date we denied your claim or rendered the determination with which you
disagree, whichever is later;
* * * * *
0
4. Amend Sec. 457.108 as follows:
0
a. In the introductory text, remove the year ``2017'' and add ``2021''
in its place;
0
b. In section 1, in the definition of ``planted acreage'', remove the
word ``ini'' and add ``in'' in its place;
0
c. Revise section 4;
0
d. In section 11:
0
i. In paragraph (c)(iv)(A), remove the comma following the phrase ``in
locations acceptable to us'';
0
ii. In paragraph (d)(3)(i), remove the comma following the phrase ``or
conditions''.
The revision reads as follows:
Sec. 457.108 Sunflower seed crop insurance provisions.
* * * * *
0
5. Cancellation and Termination Dates.
In accordance with section 2 of the Basic Provisions, the
cancellation and termination dates are:
[[Page 76428]]
------------------------------------------------------------------------
Cancellation and
State and county termination dates
------------------------------------------------------------------------
Hidalgo, Jim Wells, Nueces, and Starr January 31.
Counties, Texas.
All other Texas counties and all other March 15.
States.
------------------------------------------------------------------------
* * * * *
0
6. Amend Sec. 457.140 as follows
0
a. In section 1, in the definition of ``price election'', remove the
phrase ``the provisions of'';
0
b. In section 2, remove the phrase ``FSA farm serial number'' and add
the phrase ``FSA farm number'' in its place;
0
c. In section 3, in paragraph (b)(1), remove the word ``documentsdo''
and add ``documents do'' in its place;
0
d. In section 7:
0
i. In paragraph (a)(2)(ii), remove the word ``and'' at the end of the
paragraph;
0
ii. Revise paragraphs (a)(3) and (a)(4);
0
iii. In paragraph (c), remove the phrase ``the sales closing date'' and
add the phrase ``its sales closing date'' in its place;
0
e. In section 8:
0
i. In paragraph (c) introductory text, remove the ``al'' at the end of
the paragraph;
0
ii. In paragraph (c)(2), remove the phrase ``to be'';
0
iii. In paragraph (d), remove the word ``fall'' and add ``fall-
planted'' in its place;
0
f. In section 9:
0
i. Remove one of the duplicate section 9 headings ``Insurance Period'';
0
ii. In paragraph (a), remove the phrase ``fall and spring-planted
types'' and add ``fall-planted and spring-planted types'' in its place;
0
e. In section 11, in paragraph (a)(6), remove the phrase ``fall-planted
dry pea acreage'' and add ``fall-planted types'' in its place;
0
h. In section 13:
0
i. In Example 2, paragraph (3), remove the comma and add a semi-colon
in its place and add a semi-colon at the end of the paragraph;
0
ii. In Example 2, paragraph (6), remove the number ``1.0'' and add
``1.00'' in its place;
0
iii. In Example 2, paragraph (7), remove the comma and add a semi-colon
in its place;
0
iv. In paragraph (e) introductory text, remove the phrase ``If applying
a moisture adjustment, it'' and add ``Any adjustment for moisture'' in
its place;
0
i. In section 14, in paragraph (a), remove the word ``fall'' and add
``fall-planted'' in its place;
0
j. In section 15:
0
i. In paragraph (d), remove the phrase ``both a both fall and spring-
planted types'' and add ``both fall-planted and spring-planted types''
in its place; and
0
ii. In paragraph (e)(4), remove the phrase ``insured fall-
plantedacreage'' and add ``insured fall-planted acreage'' in its place.
The revision read as follows:
Sec. 457.108 Dry pea crop insurance provisions.
* * * * *
7. Insured Crop
(a) * * *
(3) That are not planted to plow down, graze, harvest as hay, or
otherwise not planted for harvest as a mature dry pea crop; and
(4) That are not (unless allowed by the Special Provisions or by
written agreement):
(i) Interplanted with another crop;
(ii) Planted into an established grass or legume; or
(iii) Planted as a nurse crop.
* * * * *
Martin Barbre,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 2020-26036 Filed 11-27-20; 8:45 am]
BILLING CODE 3410-08-P