Agricultural Disaster Indemnity Programs
| Citation | 84 FR 48518 |
| Record Number | 2019-19932 |
| Published date | 13 September 2019 |
| Section | Rules and Regulations |
| Court | Commodity Credit Corporation,Farm Service Agency,Federal Crop Insurance Corporation |
Federal Register, Volume 84 Issue 178 (Friday, September 13, 2019)
[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 VDepartment of Agriculture-----------------------------------------------------------------------Federal Crop Insurance Corporation7 CFR 460-----------------------------------------------------------------------Farm Service Agency
7 CFR 760-----------------------------------------------------------------------Commodity Credit Corporation
7 CFR 1416-----------------------------------------------------------------------Agricultural Disaster Indemnity Programs; Final Rule
Federal Register / Vol. 84 , No. 178 / Friday, September 13, 2019 /
Rules and Regulations
[[Page 48518]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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)
------------------------------------------------------------------------
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:
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a. In paragraph (b)(1), add ``or WHIP+ factor'' after ``factor''; and
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b. In paragraph (f), remove the words ``this section'' and add ``2017
WHIP'' in their place.
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20. Amend Sec. 760.1517 as follows:
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a. Revise paragraph (a) introductory text;
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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;
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c. Redesignate paragraph (c) as paragraph (d);
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d. Add new paragraph (c); and
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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.
* * * * *
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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.
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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
