Agricultural Disaster Indemnity Programs

Published date06 January 2021
Record Number2020-28914
SectionRules and Regulations
CourtAgriculture Department,Farm Service Agency
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
Rules and Regulations Federal Register
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Vol. 86, No. 3
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Value loss crops include aquaculture,
floriculture, mushrooms, ginseng root, ornamental
nursery, sea grass and sea oats, Christmas trees, and
turfgrass sod.
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 760
[Docket ID: FSA–2020–0011]
RIN 0560–AI55
Agricultural Disaster Indemnity
Programs
AGENCY
: Farm Service Agency (FSA),
Department of Agriculture (USDA).
ACTION
: Final rule.
SUMMARY
: This rule establishes the
Quality Loss Adjustment (QLA) Program
to provide assistance to producers who
suffered eligible crop quality losses due
to hurricanes, excessive moisture,
floods, drought, tornadoes, typhoons,
volcanic activity, snowstorms, and
wildfires occurring in calendar years
2018 and 2019. It also amends the
provisions for the Wildfire and
Hurricane Indemnity Program Plus
(WHIP+) to be consistent with the
Further Consolidated Appropriations
Act, 2020, by adding excessive moisture
and drought occurring in 2018 and 2019
as qualifying disaster events and
clarifying eligibility of sugar beets. The
changes to WHIP+ were self-enacting
and were previously implemented by
FSA.
DATES
:
Effective date: January 6, 2021.
Comment due date: Comments are
due by March 8, 2021.
ADDRESSES
: We invite you to submit
comments on this rule. You may submit
comments by either of the following
methods, although FSA prefers that you
submit comments electronically through
the Federal eRulemaking Portal:
Federal eRulemaking Portal: Go to
http://www.regulations.gov and search
for Docket ID FSA–2020–0011. Follow
the instructions for submitting
comments.
Mail: Director, SND, FSA, U.S.
Department of Agriculture, 1400
Independence Avenue SW, Stop 0522,
Washington, DC 20250–0522. In your
comment, specify the docket ID FSA–
2020–0011.
Comments will be available for
viewing online at http://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT
:
Kimberly Graham at (202) 720–6825
(voice); or by email at:
kimberly.graham@usda.gov. 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) provided disaster assistance for
necessary expenses related to 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, floods, tornadoes, typhoons,
volcanic activity, snowstorms, and
wildfires occurring in calendar years
2018 and 2019. The Further
Consolidated Appropriations Act, 2020
(Pub. L. 116–94), makes several changes
to the provisions of the Disaster Relief
Act, including:
Specifying that assistance would be
provided for crop quality losses;
Adding excessive moisture as a
qualifying disaster event;
Adding drought as a qualifying
disaster event if an area within the
county was rated by the U.S. Drought
Monitor as having a D3 (extreme
drought) or higher level of drought
intensity during the applicable calendar
year; and
Providing that sugar beet losses in
2018 and 2019 would be paid through
cooperative processors (to be paid to
producer members as determined by
such processors).
This rule implements those
provisions of the Further Consolidated
Appropriations Act, 2020, by
establishing the QLA Program to
provide assistance for crop quality
losses and amending the WHIP+
regulations to be consistent with the
changes to qualifying disaster events
and eligibility of sugar beet losses.
QLA Program
This rule establishes the QLA
Program to provide disaster assistance
for crop quality losses that were a
consequence of hurricanes, excessive
moisture, floods, qualifying drought,
tornadoes, typhoons, volcanic activity,
snowstorms, or wildfires occurring in
calendar years 2018 and 2019. Eligible
crops generally include crops for which
FCIC crop insurance coverage or
Noninsured Crop Disaster Assistance
Program (NAP) coverage is available;
however, value loss crops,
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honey, and
maple sap are not eligible. The QLA
Program provides assistance for losses
to crops that were sold or fed to
livestock or are in storage; crops that
were destroyed are not eligible.
Assistance will be based on a producer’s
harvested affected production of an
eligible crop that had a quality loss due
to a qualifying disaster event and had at
least a 5 percent quality loss due to all
eligible disaster events.
Qualifying disaster events include
hurricanes, floods, tornados, typhoons,
volcanic activity, snowstorms, wildfires,
excessive moisture, qualifying drought,
and related conditions that occurred in
the 2018 or 2019 calendar year.
Assistance is available for eligible
producers in counties that received a
qualifying Presidential Emergency
Disaster Declaration (declaration) or
Secretarial Disaster Designation
(designation) due to one or more of the
qualifying disaster events or a related
condition. As required by the Further
Consolidated Appropriations Act, 2020,
drought is only a qualifying disaster
event if an area within the county was
rated by the U.S. Drought Monitor as
having a D3 (extreme drought) or higher
level of drought intensity during the
applicable calendar year (referred to as
‘‘qualifying drought’’ in this rule). Only
producers in those counties that
received a disaster declaration or
designation qualify for the QLA Program
based on the declaration or designation.
Producers in counties that did not
receive a qualifying declaration or
designation may still apply; however,
they must also provide supporting
documentation to establish that the crop
was directly affected by a qualifying
disaster event and suffered the same
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minimum loss as required by a crop in
a disaster declared or designated
county. Lists of counties with
Presidential Emergency Disaster
Declarations and Secretarial Disaster
Designations for all qualifying disaster
events for 2018 and 2019 are available
at farmers.gov/quality-loss.
FSA recognizes that a crop may suffer
quality losses due to multiple disaster
events in a single crop year, and the
portion of a crop’s quality loss that can
be attributed to a specific disaster event
may be difficult to determine. Therefore,
while a qualifying disaster event must
have caused at least a portion of the
affected production’s quality loss, FSA
will consider the total quality loss
caused by all eligible disaster events for
eligibility and payment calculation
purposes. Eligible disaster events for the
QLA Program include those listed for
NAP in 7 CFR 1437.10, except that the
QLA Program does not cover losses due
to insect infestation.
The QLA Program does not cover
losses due to disaster events occurring
after a crop was harvested or due to crop
deterioration while in storage. Quality
losses that could have been mitigated
using good farming practices are not
eligible. For example, if a producer’s
corn crop received a quality discount
due to high moisture content, the
producer could have mitigated that
quality loss by using best practices for
drying and storing the crop; therefore,
that producer’s quality loss due to high
moisture is not eligible. The QLA
Program does not provide assistance for
losses that cannot be determined to have
occurred 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.
The QLA Program does not provide
assistance for certain quality losses that
were already compensated under a
Federal crop insurance plan, NAP, or
WHIP+. This includes losses to affected
production of:
Multiple market crops already
compensated under crop insurance or
WHIP+;
Crops for which production used to
calculate a crop insurance indemnity or
WHIP+ payment was adjusted based on
a comparison of the producer’s sale
price to the FCIC established price;
Crops that received a crop
insurance indemnity, NAP payment, or
WHIP+ payment based on the quantity
of production that was considered
unmarketable; and
Crops for which production was
reported as salvage value or secondary
use.
The QLA Program also excludes
quality losses to sugar beets that were
compensated through cooperative
agreements with cooperative processors.
Affected production of a subsequent
crop grown on double cropped acreage
is only eligible if the crop has been
approved as an eligible double cropping
practice by the FSA State committee.
Application
FSA will accept QLA Program
applications from January 6, 2021,
through March 5, 2021. To apply,
producers must submit a completed
QLA Program application either in
person, by mail, email, or facsimile to
an FSA county office. To be eligible, a
producer must submit a complete
application, which includes all of the
following:
FSA–898, Quality Loss Adjustment
(QLA) Program Application;
FSA–899, Historical Nutritional
Value Weighted Average Worksheet
(only for forage crops with verifiable
documentation of historical nutrient
factors from the 3 preceding crop years);
FSA–578, Report of Acreage;
FSA–895, Crop Insurance and/or
NAP Coverage Agreement; and
Required documentation, as
discussed below.
The FSA–578, FSA–895, and FSA–
899 forms, and other required
documentation must be submitted to the
producer’s county office by March 19,
2021.
If not already on file with FSA,
producers must also submit the
following eligibility forms for each crop
year within 60 days of the date the
producer signs the application:
AD–1026, Highly Erodible Land
Conservation (HELC) and Wetland
Conservation (WC) Certification;
CCC–902, Farm Operating Plan for
Payment Eligibility;
CCC–941 Average Adjusted Gross
Income (AGI) Certification and Consent
to Disclosure of Tax Information; and
CCC–942 Certification of Income
from Farming, Ranching and Forestry
Operations, if applicable.
Payments will not be made until all
necessary eligibility documentation is
received. Failure of an applicant to
submit documentation timely may
result in FSA not issuing a payment or,
in the case of legal entities, a reduced
payment if the required documentation
for one or more members of the entity
is not submitted timely.
Required Documentation
To support their applications,
producers must submit documentation
showing the quality loss and quantity of
affected production by March 19, 2021.
Documentation of the quality loss (total
dollar value loss, grading factors, and
nutrient factors, as applicable), must be
verifiable. Verifiable documentation is
documentation that can be verified by
FSA through an independent source;
FSA may verify the submitted records
with records on file at the warehouse,
gin, laboratory, or other entity that
received or tested the reported
production. Examples of acceptable,
verifiable documentation include
warehouse grading sheets, settlement
sheets, sales receipts, and laboratory test
results. Except for grain crops that have
been sold, the documentation must be
from laboratory tests or analysis
completed within 30 days of harvest to
be considered acceptable, unless the
FSA county committee determines that
the record is representative of the
condition of the affected production
within 30 days of harvest. For grain
crops that were sold, the verifiable
documentation can be from any time
from harvest through the time of sale,
unless the FSA county committee
determines the record is not
representative of the condition within
30 days of harvest. Producers who do
not have acceptable, verifiable
documentation are ineligible for the
QLA Program.
For forage crops, all producers must
submit verifiable documentation
showing the nutrient factors for the
affected production of the crop.
Producers must also submit verifiable
documentation of the historical nutrient
factors for the 3 preceding crop years if
available. The type of nutrient factors
(such as relative feed value or total
digestible nutrients) that must be
documented for a particular crop will be
determined by the FSA county
committee based on the standard
practice for the crop in that county. For
all crops other than forage crops,
producers must submit verifiable
documentation of the total dollar value
loss due to quality, if available, and
verifiable documentation of grading
factors due to quality.
Documentation to support the
quantity of affected production included
on the application must be verifiable for
non-forage crops that receive a QLA
payment based on the producer’s total
dollar value loss. For all other crops
(non-forage crops without a producer’s
total dollar value loss and all forage
crops), records to support the quantity
of affected production must be reliable.
Reliable production records means
evidence provided by the participant
that is used to substantiate the amount
of production reported when verifiable
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FSA provided assistance for losses due to
Hurricanes Harvey, Irma, Maria, and other
hurricanes and wildfires occurring in calendar year
2017 through the 2017 Wildfires and Hurricanes
Indemnity Program (2017 WHIP) (final rule
published July 18, 2018, 83 FR 33795–33809) and
the Florida Citrus Recovery Grant Program.
3
FSA has previously provided assistance for
losses due to Hurricanes Michael and Florence,
other hurricanes, floods, tornadoes, typhoons,
volcanic activity, snowstorms, and wildfires
occurring in calendar years 2018 and 2019 through
the Wildfires and Hurricanes Indemnity Program
Plus (WHIP+), On-Farm Storage Loss Program, and
Milk Loss Program (final rule published September
13, 2019, 84 FR 48518–48537), as well as through
several grants and cooperative agreements with
sugar beet cooperatives.
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. To determine
whether the records are acceptable, the
FSA county committee will consider
whether they are consistent with the
records of other producers of the crop in
that area.
Payment Calculation
QLA Program payments will be
calculated using different formulas
based on the type of crop (forage or non-
forage) and based on the type of
documentation submitted. All QLA
payments, regardless of whether they
are forage or non-forage, and the type of
documentation submitted, will be
calculated using a 70 percent payment
factor. Payments calculated based on a
county average loss, as described below,
will be subject to an additional payment
factor of 50 percent.
For forage crops with verifiable
documentation of both the nutrient
factors for the affected production and
historical nutrient factors for the 3
preceding crop years, payment will be
equal to the amount of the producer’s
total affected production multiplied by
the producer’s verifiable percentage of
loss, multiplied by the average market
price determined by FSA, multiplied by
70 percent. The producer’s verifiable
percentage of loss is determined by
comparing the nutrient factor test
results for the affected production to the
average from the 3 preceding crop years,
as documented on the FSA–899,
Historical Nutritional Value Weighted
Average Worksheet. The average market
price for the QLA Program is the price
used for NAP established according to 7
CFR 1437.12.
For forage crops with verifiable
documentation of nutrient factors for
the affected production but without
historical nutrient factors for the 3
preceding crop years, the payment will
be equal to the amount of the producer’s
total affected production multiplied by
the county average percentage of loss,
multiplied by the average market price
determined by FSA, multiplied by 70
percent, multiplied by 50 percent.
For affected production of non-forage
crops with verifiable documentation of
the total dollar value loss due to quality,
the QLA Program payment is equal to
the producer’s total dollar value loss on
the affected production of the crop,
multiplied by a payment factor of 70
percent.
For non-forage crops without
verifiable documentation of a total
dollar value loss but with verifiable
documentation of grading factors due to
quality, the payment will be equal to the
amount of producer’s affected
production multiplied by the county
average loss per unit of measure,
multiplied by 70 percent, multiplied by
50 percent.
To determine the county average
percentage of loss (for forage crops) or
the county average loss per unit of
measure (for non-forage crops), FSA will
calculate the average loss for a crop
based on losses of producers applying
with verifiable documentation of
historical nutritional factors (for forage
crops) or the total dollar value loss (for
non-forage crops) if at least 5 eligible
producers submitted that
documentation in the county. If less
than 5 eligible producers in a county
submit verifiable documentation of their
historical nutritional factors or their
total dollar value loss, FSA will
determine a county average percentage
of loss or county average loss per unit
of measure based on the best available
data, including losses of other QLA
Program participants in contiguous
counties. If sufficient data is still not
available after considering other
sources, FSA may determine that a
county average cannot be calculated and
producers in that county applying for
payment under the applicable
calculation are ineligible.
Payments for the QLA Program will
not be issued until the application
period has ended in order to allow FSA
to determine the county average losses,
as well as the total payments requested
under the QLA Program. The Further
Consolidated Appropriations Act, 2020
provides funding for the QLA Program
to be available until December 31, 2021,
in an amount equal to the remaining
funds provided under the Bipartisan
Budget Act of 2018 (Pub. L. 115–123) for
losses due to Hurricanes Harvey, Irma,
Maria, and other hurricanes and
wildfires occurring in calendar year
2017,
2
and remaining funds provided
under the Disaster Relief Act for losses
due to Hurricanes Michael and
Florence, other hurricanes, floods,
tornadoes, typhoons, volcanic activity,
snowstorms, and wildfires occurring in
calendar years 2018 and 2019.
3
If the
total amount of calculated QLA Program
payments exceeds the amount of
funding available, FSA will prorate all
payments by a national factor.
A person or legal entity, other than a
joint venture or general partnership, is
eligible to receive, directly or indirectly,
up to $125,000 per crop year in QLA
Program payments. FSA will use the
notification of interest provisions in 7
CFR 1400.107 and payment attribution
provisions in 7 CFR 1400.105 for
attributing and limiting payments to
persons and legal entities. FSA will also
use provisions in 7 CFR 1400.104 when
changes in a farming operation result in
an increase in persons to which
payment limitation applies. Payments
made to a joint operation (including a
general partnership or joint venture)
cannot exceed $250,000 per person or
legal entity that comprise the ownership
of the joint operation. Payments made to
a legal entity will be reduced
proportionately by an amount that
represents the direct or indirect
ownership in the legal entity by any
person or legal entity that has otherwise
reached the maximum payment
limitation. These rules for attributing
and limiting payments are consistent
with the programs FSA administers on
behalf of the Commodity Credit
Corporation.
A person or legal entity, other than a
joint venture or general partnership, is
ineligible for a 2018, 2019, or 2020
payment if the person’s or legal entity’s
average adjusted gross income (AGI) is
more than $900,000, unless at least 75
percent of that person’s or legal entity’s
average AGI is derived from farming,
ranching, or forestry-related activities.
The average AGI for each of the program
years 2018, 2019, or 2020, is determined
using the average of the adjusted gross
incomes for the 3 taxable years
preceding the most immediately
preceding taxable year. For example, for
the 2019 program year, the producer’s
AGI would be based on the 2015, 2016,
and 2017 tax years. If at least 75 percent
of the person’s or legal entity’s AGI is
derived from farming, ranching, or
forestry-related activities and the
participant provides the required
certification and documentation, the
person or legal entity is eligible to
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receive QLA Program payments up to
the applicable payment limitation noted
above. With respect to joint ventures
and general partnerships, this AGI
provision will be applied to each
member of the joint venture and general
partnership.
Requirement to Purchase Crop
Insurance or NAP Coverage
The Disaster Relief Act requires all
participants who receive QLA Program
payments to purchase crop insurance or
NAP coverage for the next 2 available
crop years. The latest year for meeting
compliance with this provision will be
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 QLP Program payments.
Participants must obtain crop insurance
or NAP, as may be applicable, at the 60
percent coverage level or higher. In
situations where crop insurance is
unavailable for a crop, the Disaster
Relief Act requires that a QLA Program
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; however, producers
with an AGI greater than $900,000 may
be eligible for the QLA Program if at
least 75 percent of that person’s or legal
entity’s average AGI is derived from
farming, ranching, or forestry-related
activities. 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, QLA Program
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 coverage
requirements are specific to the crop
and county (county where the crop is
physically located for insurance and
administrative county for NAP) for
which QLA Program payments are paid.
This means that a producer is required
to purchase crop insurance or NAP
coverage for the crop in the county for
which the producer was issued a QLA
Program payment. Producers who
receive a 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 QLA Program 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
the QLA Program for 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. WHIP+ participants who
already met the requirement to purchase
crop insurance or NAP coverage as
specified in 7 CFR 760.1517 are
considered to have also met the
requirement to purchase crop insurance
or NAP coverage for QLA Program
purposes, and they are not required to
obtain additional years of crop
insurance or NAP coverage as a result of
also receiving a QLA Program payment
for that crop.
Applicable general eligibility
requirements, including recordkeeping
requirements and required compliance
with 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
production records, is subject to spot
check.
WHIP+
FSA, on behalf of the Secretary of
Agriculture, previously implemented
provisions of the Disaster Relief Act by
establishing WHIP+ through a final rule
published on September 19, 2019 (84 FR
48518–48537). The Disaster Relief Act
provided assistance for losses of crops,
trees, bushes, and vines, as a
consequence of hurricanes, floods,
tornadoes, typhoons, volcanic activity,
snowstorms, and wildfires occurring in
calendar years 2018 and 2019. WHIP+
covers only production losses of crops
except in specific circumstances
discussed previously in this document
when the producer may have also been
compensated for quality losses.
This rule amends 7 CFR 760.1500(c)
and the definition of ‘‘qualifying
disaster event’’ in § 760.1502 to include
excessive moisture and qualifying
drought. As under the QLA Program,
drought is only considered a qualifying
disaster event if an area within the
county was rated by the U.S. Drought
Monitor as having a D3 (extreme
drought) or higher level of drought
intensity during the applicable calendar
year. This rule adds definitions of
‘‘qualifying drought’’ and ‘‘U.S. Drought
Monitor’’ in § 760.1502.
The addition of these qualifying
disaster events for WHIP+ was self-
enacting as the text in the law clearly
specified the required changes without
need for interpretation; therefore, FSA
began the sign-up period for losses due
to excessive moisture and qualifying
drought on March 23, 2020, and sign-up
ended on October 30, 2020. Producers
applying for WHIP+ assistance for losses
due to excessive moisture or qualifying
drought were required to meet all
requirements in 7 CFR part 760, subpart
O, including the requirement to
purchase crop insurance for 2 years as
specified in § 760.1517.
The Further Consolidated
Appropriations Act, 2020 also directed
the Secretary to pay sugar beet losses in
2018 and 2019 through cooperative
processors. FSA has established
cooperative agreements with sugar beet
processors; those processors will be
responsible for distributing assistance to
their members. This rule amends the
eligibility provisions in § 760.1517 to
specify that members of cooperatives are
not eligible for a WHIP+ payment for
sugar beet losses.
FSA is also updating § 760.1510(a) to
reflect the application deadline of
October 30, 2020, and correcting
references in §§ 760.1508(c) and (f) and
760.1511(a)(6).
Notice and Comment and Effective Date
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 falls within that exemption.
Due to the nature of the rule and the
need to implement the regulations
expeditiously to provide assistance to
agricultural producers, FSA finds that
notice and public procedure are
contrary to the public interest.
Therefore, even though this rule is a
major rule for purposes of the
Congressional Review Act, FSA 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
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The addition of excessive moisture and certain
drought conditions as qualifying causes of loss
under WHIP+ is specific, not open to interpretation,
and is therefore self-enacting. Accordingly, the
provision was previously implemented. FSA began
the sign-up period on March 23, 2020, and sign-up
ended on October 30, 2020.
5
Assistance for sugar beet losses for members of
cooperative processors is provided through a
separate program.
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, 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, titled
Reducing Regulation and Controlling
Regulatory Costs, was issued on January
30, 2017. The OMB guidance in M–17–
21, dated April 5, 2017, specifies that
‘‘transfers’’ are not covered by Executive
Order 13771 but that requirements
imposed apart from transfers in transfer
rules may qualify as costs or cost
savings under Executive Order 13771,
for example the information collection
requirements in this rule. This rule is
not subject to the requirements of E.O.
13771 because this rule results in no
more than de minimis costs.
Cost Benefit Analysis Summary
WHIP+ initially provided
approximately $3 billion in
supplemental assistance to producers
for qualifying agricultural production
losses. In the Further Consolidated
Appropriations Act, 2020, Congress
changed provisions of the Disaster
Relief Act as follows:
1. Extended eligibility under WHIP+
to also cover
4
a. Crop production losses due to
excessive moisture in calendar years
2018 and 2019;
b. Crop production losses due to
drought in calendar years 2018 and
2019 if the area within the county in
which the loss occurred was rated by
the U.S. Drought Monitor as having a D3
(extreme drought) or higher level of
drought intensity during the applicable
calendar year;
2. Provided assistance for sugar beet
losses in 2018 and 2019 to be paid
through cooperative processors;
5
and
3. Authorized assistance for crop
quality losses that occurred in calendar
years 2018 and 2019 through the QLA
Program (implemented by this rule).
Eligible crops under the QLA Program
include crops for which Federal crop
insurance or NAP coverage is available.
To be eligible for the QLA Program, a
crop must have suffered a quality loss
due to a qualifying disaster event and
had at least a 5 percent quality discount
due to a combination of the qualifying
disaster event and any other QLA-
eligible causes of loss. Eligible crops
may have been sold, fed on farm to
livestock, or been in storage at the time
of application.
USDA estimates the Further
Consolidated Appropriations Act, 2020
will provide approximately $950
million for the continuation of disaster
assistance program delivery, including
payments to eligible producers for
production losses due to excessive
moisture and extreme drought under
WHIP+ and for quality losses covered by
the QLA Program. Of that amount,
USDA anticipates that an estimated
$500 million will be available for QLA
Program payments. However, the
amount of funding ultimately available
for the QLA Program will not be known
until other payments, for example for
excessive moisture and drought under
WHIP+, are finalized.
The QLA Program payment
calculation depends on several factors,
as shown in Figure 1. A producer is
ineligible for a QLA Program payment if
they received a crop insurance
indemnity, NAP payment, or WHIP+
payment for a crop that was
unmarketable, sold for salvage value or
secondary use, or if the payment was
based on a comparison of the sales price
of the affected production and the
applicable reference price. Otherwise,
payments or benefits received under the
Federal crop insurance, NAP or WHIP+
do not affect a producer’s eligibility or
payment received from the QLA
Program. The payment calculation
depends on the use of production (non-
forage or forage) and evidence at hand
of the crop quality loss. Producers who
do not have evidence of the quality loss
are ineligible.
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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 legislative intent for
implementing the QLA Program is to
provide assistance to producers who
suffered eligible crop quality losses due
to hurricanes, excessive moisture,
floods, drought, tornadoes, typhoons,
volcanic activity, snowstorms, and
wildfires occurring in calendar years
2018 and 2019.
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’’ (see
40 CFR 1502.16(b)), when not
interrelated to natural or physical
environmental effects.
For this rule, the FSA Categorical
Exclusions found in 7 CFR 799.31
apply, specifically 7 CFR
799.31(b)(6)(iii), (iv), and (vi) (that is,
§ 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); § 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
§ 799.31(b)(6)(vi) Safety net programs
administered by FSA). No Extraordinary
Circumstances (7 CFR 799.33) exist.
For the outlined reasons, FSA has
determined that the implementation of
the QLA Program and the participation
in the QLA Program does not constitute
a major Federal action 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.
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
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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. FSA
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
subject to the requirements of sections
202 and 205 of UMRA.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995, FSA submitted
the QLA Program information collection
request to OMB for emergency approval.
OMB approved the 6-month emergency
information collection.
E-Government Act Compliance
FSA is committed to complying with
the E-Government Act, to promote the
use of the internet and other
information technologies to provide
increased opportunities for citizen
access to Government information and
services, and for other purposes.
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
10.133—Quality Loss Adjustment
Program
List of Subjects in 7 CFR Part 760
Dairy products, Indemnity payments,
Reporting and recordkeeping
requirements.
For the reasons discussed above, FSA
amends 7 CFR part 760 as follows:
PART 760—INDEMNITY PAYMENT
PROGRAMS
1. Revise the authority citation for part
760 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, 132 Stat. 65; Title I, Pub. L. 116–20, 133
Stat. 871; and Division B, Title VII, Pub. L.
116–94, 133 Stat. 2658.
Subpart O—Agricultural Disaster
Indemnity Programs
§ 760.1500 [Amended]
2. In § 760.1500(c), remove the words
‘‘and wildfires’’ and add ‘‘wildfires,
excessive moisture, and qualifying
drought’’ in their place.
3. Amend § 760.1502 as follows:
a. In the definition of ‘‘Qualifying
disaster event’’, in paragraph (2) of
remove the word ‘‘wildfire’’ and add
‘‘wildfire, excessive moisture, qualifying
drought’’ in its place; and
b. Add the definitions of ‘‘Qualifying
drought’’ and ‘‘U.S. Drought Monitor’’
in alphabetical order.
The additions read as follows:
§ 760.1502 Definitions.
* * * * *
Qualifying drought means an area
within the county was rated by the U.S.
Drought Monitor as having a D3
(extreme drought) or higher level of
drought intensity during the applicable
calendar year.
* * * * *
U.S. Drought Monitor is a system for
classifying drought severity according to
a range of abnormally dry to exceptional
drought. It is a collaborative effort
between Federal and academic partners,
produced on a weekly basis, to
synthesize multiple indices, outlooks,
and drought impacts on a map and in
narrative form. This synthesis of indices
is reported by the National Drought
Mitigation Center at http://
droughtmonitor.unl.edu.
* * * * *
4. In § 760.1503, add paragraph (j) to
read as follows.
§ 760.1503 Eligibility.
* * * * *
(j) Members of cooperative processors
are not eligible for WHIP+ assistance for
sugar beet losses.
§ 760.1508 [Amended]
5. Amend § 760.1508 as follows:
a. In paragraph (c), remove the cross
reference ‘‘paragraph (b)(1)’’ and add the
cross reference ‘‘paragraph (b)’’ in its
place; and
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b. In paragraph (f), remove the cross
reference ‘‘paragraph (b)(1)’’ and add
cross reference ‘‘paragraph (e)’’ in its
place.
§ 760.1510 [Amended]
6. In § 760.1510(a), remove the words
‘‘a date that will be announced by the
Deputy Administrator’’ and add
‘‘October 30, 2020’’ in their place.
§ 760.1511 [Amended]
7. In § 760.1511(a)(6), remove the
cross reference ‘‘paragraph (f)’’ and add
cross reference ‘‘paragraph (g)’’ in its
place.
8. Add subpart R, consisting of
§§ 760.1800 through 760.1814, to read
as follows:
Subpart R—Quality Loss Adjustment
Program
Sec.
760.1800 Applicability.
760.1801 Administration.
760.1802 Definitions.
760.1803 Participant eligibility.
760.1804 Eligibility of affected production.
760.1805 Qualifying disaster events.
760.1806 Ineligible losses.
760.1807 Miscellaneous provisions.
760.1808 General provisions.
760.1809 Payment and adjusted gross
income limitation.
760.1810 Time and method of application.
760.1811 Required documentation and
verification.
760.1812 Payment calculation.
760.1813 Availability of funds and timing
of payments.
760.1814 Requirement to purchase crop
insurance or NAP coverage.
§ 760.1800 Applicability.
This subpart specifies the terms and
conditions for the Quality Loss
Adjustment (QLA) Program. The QLA
Program provides disaster assistance for
crop quality losses that were a
consequence of hurricanes, excessive
moisture, floods, qualifying drought,
tornadoes, typhoons, volcanic activity,
snowstorms, and wildfires occurring in
calendar years 2018 and 2019.
§ 760.1801 Administration.
(a) The QLA Program is administered
under the general supervision of the
Administrator, Farm Service Agency
(FSA), and the Deputy Administrator for
Farm Programs, FSA. The QLA Program
is carried out by FSA State and county
committees with instructions issued by
the Deputy Administrator.
(b) FSA State and county committees,
and representatives and their
employees, do not have authority to
modify or waive any of the provisions
of the regulations in this subpart or
instructions issued by the Deputy
Administrator.
(c) The FSA State committee will take
any action required by the regulations in
this subpart that the FSA county
committee has not taken. The FSA State
committee will also:
(1) Correct, or require an FSA county
committee to correct, any action taken
by the FSA county committee that is not
in accordance with the regulations in
this subpart; or
(2) Require an FSA county committee
to withhold taking any action that is not
in accordance with this subpart.
(d) No delegation to an FSA State or
county committee precludes the FSA
Administrator or the Deputy
Administrator from determining any
question arising under this subpart or
from reversing or modifying any
determination made by an FSA State or
county committee.
(e) The Deputy Administrator has the
authority to:
(1) Permit State and county
committees to waive or modify a non-
statutory deadline specified in this
subpart; and
(2) Delegate authority to FSA State or
county committees to make
determinations under § 760.1812(f) and
(g).
(f) Items of general applicability to
program participants, including, but not
limited to, application periods,
application deadlines, internal
operating guidelines issued to FSA State
and county offices, prices, and payment
factors established under this subpart,
are not subject to appeal in accordance
with part 780 of this chapter.
§ 760.1802 Definitions.
The following definitions apply to
this subpart. The definitions in §§ 718.2
and 1400.3 of this title also apply,
except where they conflict with the
definitions in this section. In the event
of conflict, the definitions in this
section apply.
Affected production means the
producer’s ownership share of harvested
production of an eligible crop, adjusted
to standard moisture as established by
the U.S. Grains Standards Act, a State
regulatory agency, or industry standard,
that had both:
(1) A quality loss due to a qualifying
disaster event; and
(2) At least a 5 percent quality loss
due to all eligible disaster events.
Average market price means the
average market price determined
according to § 1437.12 of this title.
Coverage level means the percentage
determined by multiplying the elected
yield percentage under a crop insurance
policy or NAP coverage by the elected
price percentage.
Crop insurance 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 insurance indemnity means, for
the purpose of this subpart, the payment
to a participant for crop losses covered
under crop insurance administered by
RMA in accordance with the Federal
Crop Insurance Act (7 U.S.C. 1501–
1524).
Crop year means:
(1) For insurable crops, the crop year
as defined according to the applicable
crop insurance policy; and
(2) For NAP-eligible crops, the crop
year as defined in § 1437.3 of this title.
Eligible crop means a crop for which
coverage was available either from FCIC
under part 400 of this title, or through
NAP under § 1437.4 of this title.
Eligible disaster event means a
disaster event that is an eligible cause of
loss specified in § 1437.10 of this title,
excluding insect infestation.
FCIC means the Federal Crop
Insurance Corporation, a wholly owned
Government Corporation of USDA,
administered by RMA.
FSA means the Farm Service Agency,
an agency of USDA.
Grading factor means a factor that
describes the physical condition or a
feature that is evaluated to determine
the quality of the production, such as
broken kernels and low-test weight.
Good farming practices means the
cultural practices generally recognized
as compatible with agronomic and
weather conditions and used for the
crop to make normal progress toward
maturity, as determined by FSA. These
practices are:
(1) For conventional farming
practices, those generally recognized by
agricultural experts for the area, which
could include one or more counties; or
(2) For organic farming practices,
those generally recognized by the
organic agricultural experts for the area
or contained in the organic system plan
that is in accordance with the National
Organic Program specified in part 205 of
this title.
Harvested means:
(1) For insurable crops, harvested as
defined according to the applicable crop
insurance policy;
(2) For NAP-eligible single harvest
crops, that a crop has been removed
from the field, either by hand or
mechanically;
(3) For NAP-eligible crops with
potential multiple harvests in 1 year or
harvested over multiple years, that the
producer has, by hand or mechanically,
removed at least 1 mature crop from the
field during the crop year; and
(4) For mechanically harvested NAP-
eligible crops, that the crop has been
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removed from the field and placed in a
truck or other conveyance, except hay is
considered harvested when in the bale,
whether removed from the field or not.
Insurable crop means an agricultural
crop (excluding livestock) for which the
producer on a farm is eligible to obtain
a policy or plan of insurance under the
Federal Crop Insurance Act (7 U.S.C.
1501–1524).
Multiple market crop means a crop
that is delivered to a single market but
can have fresh and processed prices
based on grading. For example, a
producer may intend to sell all
production of an apple crop as fresh
production; however, based on grading
of the crop at the market, the producer
is compensated for some production at
the fresh price and for some production
at the processing price.
Multiple planting means the planting
for harvest of the same crop in more
than one planting period in a crop year
on different acreage.
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.
NAP-eligible crop means an
agricultural crop for which the producer
on a farm is eligible to obtain NAP
coverage.
NAP service fee means the amount
specified in § 1437.7 of this title that the
producer must pay to obtain NAP
coverage.
Nutrient factor means a factor
determined by a test that measures the
nutrient value of a crop to be fed to
livestock. Examples include, but are not
limited to, relative feed value and total
digestible nutrients.
Production means quantity of the crop
produced, which is expressed in a
specific unit of measure including, but
not limited to, bushels or pounds.
QLA Program means the Quality Loss
Adjustment Program.
Qualifying disaster event means a
hurricane, flood, tornado, typhoon,
volcanic activity, snowstorm, wildfire,
excessive moisture, qualifying drought,
or a related condition that occurred in
the 2018 or 2019 calendar year.
Qualifying drought means an area
within the county was rated by the U.S.
Drought Monitor as having a D3
(extreme drought) or higher level of
drought intensity during the applicable
calendar year.
Quality loss means:
(1) For forage crops, a reduction in an
applicable nutrient factor for the crop;
and
(2) For crops other than forage, a
reduction in the total dollar value of the
crop due to reduction in the physical
condition of the crop indicated by an
applicable grading factor.
Related condition means damaging
weather or an adverse natural
occurrence that occurred as a direct
result of a specified qualifying disaster
event, such as excessive rain, high
winds, flooding, mudslides, and heavy
smoke, as determined by the Deputy
Administrator. The term does not
include insect infestation.
Reliable production record 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. To determine
whether the records are acceptable, the
FSA county committee will consider
whether they are consistent with the
records of other producers of the crop in
that area.
RMA means the Risk Management
Agency, an agency of USDA.
Salvage value means the dollar
amount or equivalent for the quantity of
the commodity that cannot be marketed
or sold in any recognized market for the
crop.
Secondary use means the harvesting
of a crop for a use other than the
intended use.
Unit of measure means:
(1) For insurable crops, the FCIC-
established unit of measure; and
(2) For NAP-eligible crops, the
established unit of measure used for the
NAP price and yield.
USDA means the U.S. Department of
Agriculture.
U.S. Drought Monitor is a system for
classifying drought severity according to
a range of abnormally dry to exceptional
drought. It is a collaborative effort
between Federal and academic partners,
produced on a weekly basis, to
synthesize multiple indices, outlooks,
and drought impacts on a map and in
narrative form. This synthesis of indices
is reported by the National Drought
Mitigation Center at http://
droughtmonitor.unl.edu.
Value loss crop has the meaning
specified in subpart D of part 1437 of
this title.
Verifiable documentation means
evidence that can be verified by FSA
through an independent source.
Verifiable percentage of loss is the
percentage of loss determined by
comparing the applicable nutrient
factors for a producer’s affected
production of a forage crop with the
average of such nutrient factors from the
3 preceding crop years, as documented
on FSA–899, Historical Nutritional
Value Weighted Average Worksheet.
WHIP+ means the Wildfires and
Hurricanes Indemnity Program Plus
under subpart O of this part.
§ 760.1803 Participant eligibility.
(a) Participants will be eligible to
receive a payment under this subpart
only if they incurred a loss to an eligible
crop due to a qualifying disaster event,
as further specified in this subpart.
(b) To be an eligible participant under
this subpart, a person or legal entity
must be a:
(1) Citizen of the United States;
(2) Resident alien; for purposes of this
subpart, resident alien means ‘‘lawful
alien’’ (see § 1400.3 of this title);
(3) Partnership consisting solely of
citizens of the United States or resident
aliens; or
(4) Corporation, limited liability
company, or other similar
organizational structure organized
under State law consisting solely of
citizens or resident aliens of the United
States.
(c) If any person who would
otherwise be eligible to receive a
payment dies before the payment is
received, payment may be released as
specified in § 707.3 of this chapter.
Similarly, if any person or legal entity
who would otherwise have been eligible
to apply for a payment dies or is
dissolved, respectively, before the
payment is applied for, payment may be
released in accordance with this subpart
if a timely application is filed by an
authorized representative. Proof of
authority to sign for the deceased
producer or dissolved entity must be
provided. If a participant is now a
dissolved general partnership or joint
venture, all members of the general
partnership or joint venture at the time
of dissolution or their duly authorized
representatives must sign the
application. Eligibility of such
participant will be determined, as it is
for other participants, based upon
ownership share and risk in producing
the crop.
(d) An ownership share is required to
be eligible for a payment under this
subpart. Growers growing eligible crops
under contract for crop owners are not
eligible for a payment under this
subpart unless the grower is also
determined to have an ownership share
of the crop. Any verbal or written
contract that precludes the grower from
having an ownership share renders the
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grower ineligible for payments under
this subpart.
(e) A person or legal entity is not
eligible to receive assistance under this
subpart if FSA determines that the
person or legal entity:
(1) Adopted any scheme or other
device that tends to defeat the purpose
of this subpart or any of the regulations
applicable to this subpart;
(2) Made any fraudulent
representation; or
(3) Misrepresented any fact affecting a
program determination under any or all
of the following: This subpart and parts
12, 400, 1400, and 1437 of this title.
(f) A person who is ineligible for crop
insurance or NAP under § 400.458 or
§ 1437.16 of this title, respectively, for
any year is ineligible for payments
under this subpart for the same year.
(g) The provisions of § 718.11 of this
chapter, providing for ineligibility for
payments for offenses involving
controlled substances, apply.
(h) As a condition of eligibility to
receive payments under this subpart,
the participant must have been in
compliance with the Highly Erodible
Land Conservation and Wetland
Conservation provisions of part 12 of
this title for the applicable crop year for
which the producer is applying for
benefits under this subpart, and must
not otherwise be precluded from
receiving payments under part 12, 400,
1400, or 1437 of this title or any law.
§ 760.1804 Eligibility of affected
production.
(a) To be eligible for the QLA
Program, an eligible crop’s affected
production must have suffered a quality
loss due to a qualifying disaster event
and had at least a 5 percent quality loss
due to all eligible disaster events.
Whether affected production of a crop
had a 5 percent loss will be determined
separately for crops with different crop
types, intended uses, certified organic or
conventional status, county, and crop
year.
(b) Affected production of the
following is not eligible for the QLA
Program:
(1) Crops that were not grown
commercially;
(2) Crops that were intended for
grazing or were grazed;
(3) Crops not intended for harvest;
(4) Volunteer crops;
(5) Value loss crops;
(6) Maple sap;
(7) Honey;
(8) By-products resulting from
processing or harvesting a crop, such as,
but not limited to, cotton seed, peanut
shells, wheat or oat straw, or corn stalks
or stovers;
(9) First-year seeding for forage
production;
(10) Immature fruit crops;
(11) Crops for which FCIC coverage or
NAP coverage is unavailable;
(12) Multiple market crops for which
the producer previously received a crop
insurance indemnity or WHIP+ payment
for a quality loss;
(13) Crops for which production used
to calculate a crop insurance indemnity
or WHIP+ payment was adjusted based
on a comparison of the producer’s sale
price to FCIC established price;
(14) Crops that received a crop
insurance indemnity, NAP payment, or
WHIP+ payment based on the quantity
of production that was considered
unmarketable;
(15) Crops for which the producer
previously received a crop insurance
indemnity, NAP payment, or WHIP+
payment for which production was
reported as salvage value or secondary
use;
(16) Sugar beets for which a member
of a cooperative processor received a
payment through a cooperative
agreement; and
(17) Crops that were destroyed.
(c) Only affected production from
initial crop acreage will be eligible for
a QLA Program payment, unless the
provisions for subsequent crops in this
section are met. All plantings of an
annual or biennial crop are considered
the same as a planting of an initial crop
in tropical regions as defined in part
1437, subpart F, of this title.
(d) In cases where there is double
cropped acreage, affected production of
each crop may be eligible only if the
specific crops are approved by the FSA
State committee as eligible double
cropping practices in accordance with
procedures approved by the Deputy
Administrator.
(e) Participants having affected
production from multiple plantings may
receive payments for each planting only
if the planting meets the requirements of
part 1437 of this title and all other
provisions of this subpart are satisfied.
§ 760.1805 Qualifying disaster events.
(a) A producer is eligible for payments
under this subpart only if the producer’s
affected production of an eligible crop
suffered a crop quality loss due to a
qualifying disaster event.
(b) A crop quality loss due to a
qualifying disaster event 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.
(c) A producer with a crop quality
loss on acreage not physically located in
a county that was eligible under
paragraph (b) of this section will be
eligible for the QLA Program for losses
due to qualifying disaster events only if
the producer provides supporting
documentation from which the FSA
county committee determines that the
crop quality loss 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.
§ 760.1806 Ineligible losses.
(a) A loss is not eligible under 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 drifting herbicides;
(2) The loss could have been
mitigated using good farming practices,
including losses due to high moisture
content that could be mitigated by
following best practices for drying and
storing the crop;
(3) The qualifying disaster event
occurred after the crop was harvested;
(4) 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;
or
(5) The cause of loss was due to:
(i) Conditions or events occurring
outside of the applicable growing season
for the crop;
(ii) Insect infestation;
(iii) 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;
(iv) Failure of a power supply or
brownout; or
(v) Failure to harvest or market the
crop due to lack of a sufficient plan or
resources.
(b) [Reserved]
§ 760.1807 Miscellaneous provisions.
(a) All persons with a financial
interest in a legal entity receiving
payments under this subpart are jointly
and severally liable for any refund,
including related charges, that is
determined to be due to FSA for any
reason.
(b) In the event that any application
under this subpart resulted from
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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 3 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 3 of
this chapter.
(e) The regulations in parts 11 and
780 of this title apply to determinations
under this subpart.
§ 760.1808 General provisions.
(a) Eligibility and payments under
this subpart will be determined based
on the county where the affected
production was harvested.
(b) FSA county committees will make
any necessary adjustments to the
applicant’s affected production and
other information on the application
form used to calculate a payment when
the county committee determines:
(1) Additional documentation has
been requested by FSA but has not been
provided by the participant;
(2) The loss is due to an ineligible
cause; or
(3) The participant has a contract
providing a guaranteed payment for all
or a portion of the crop.
(c) Unless otherwise specified, all
eligibility provisions of part 1437 of this
title also apply to tropical crops for
eligibility under this subpart.
(d) 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.
(e) Production that is commingled
between counties, crop years, or
ineligible and eligible acres before it
was a matter of record or combination
of record and cannot be separated by
using records or other means acceptable
to FSA will be prorated to each
respective year, county, or type of
acreage, respectively.
§ 760.1809 Payment and adjusted gross
income limitation.
(a) 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 for
each of the 2018, 2019, and 2020 crop
years under this subpart.
(b) Payments made to a joint
operation, including a joint venture or
general partnership, cannot exceed the
amount determined by multiplying the
maximum payment amount specified in
paragraph (a) of this section by the
number of persons and legal entities,
other than joint operations, that
comprise the ownership of the joint
operation.
(c) The direct attribution provisions in
§ 1400.105 of this title apply to
payments under this subpart.
(d) The notification of interest
provisions in § 1400.107 of this title
apply to payments under this subpart.
(e) The provisions for recognizing
persons added to a farming operation for
payment limitation purposes as
described in § 1400.104 of this title
apply to payments under this subpart.
(f) The $900,000 average AGI
limitation provisions in part 1400 of this
title relating to limits on payments for
persons or legal entities, excluding joint
ventures and general partnerships,
apply to each applicant for the QLA
Program unless at least 75 percent of the
person or legal entity’s average AGI is
derived from farming, ranching, or
forestry-related activities. A person’s or
legal entity’s average AGI for each of the
program years 2018, 2019 or 2020, is
determined by using the average of the
adjusted gross incomes for the 3 taxable
years preceding the most immediately
preceding taxable year. If the person’s or
legal entity’s average AGI is below
$900,000 or at least 75 percent of the
person or legal entity’s average AGI is
derived from farming, ranching, or
forestry-related activities, the person or
legal entity, is eligible to receive
payments under this subpart.
§ 760.1810 Time and method of
application.
(a) A completed FSA–898, Quality
Loss Adjustment (QLA) Program
Application, must be submitted in
person, by mail, email, or facsimile to
any FSA county office by the close of
business on March 5, 2020.
(b) An 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 producer
has submitted all of following by March
19, 2020:
(1) Documentation required by
§ 760.1811;
(2) FSA–578, Report of Acreage, for
all acreage for any crop for which
payments under this subpart are
requested;
(3) FSA–895, Crop Insurance and/or
NAP Coverage Agreement; and
(4) For forage crops, FSA–899,
Historical Nutritional Value Weighted
Average Worksheet, if verifiable
documentation of historical nutrient
factors is available.
(c) In addition to the forms listed in
paragraph (b) of this section, applicants
must also submit all the following
eligibility forms within 60 days from the
date of signing the QLA Program
application if not already on file with
FSA:
(1) AD–1026, Highly Erodible Land
Conservation (HELC) and Wetland
Conservation Certification;
(2) CCC–902 Automated, Farm
Operating Plan for Payment Eligibility
2009 and Subsequent Program Years;
(3) CCC–941 Average Adjusted Gross
Income (AGI) Certification and Consent
to Disclosure of Tax Information; and
(4) CCC–942 Certification of Income
from Farming, Ranching and Forestry
Operations, if applicable.
(d) Failure to submit all required
forms by the applicable deadlines in
paragraphs (b) and (c) of this section
may result in no payment or a reduced
payment.
(e) Application approval and payment
by FSA does not relieve a participant
from having to submit any form
required, but not filed, according to this
section.
(f) Once signed by a producer, the
application is considered to contain
information and certifications of and
pertaining to the producer regardless of
who entered the information on the
application.
(g) The producer applying for
payment 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 USDA to verify any information
provided will result in the participant’s
forfeiting eligibility for payment under
this subpart. 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
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provision of this subpart. Furnishing
information specified in this subpart is
voluntary; however, FSA may choose
not to act on the application or approve
payment if the required information is
not provided. Providing a false
certification will result in ineligibility
and can also be punishable by
imprisonment, fines, and other
penalties.
§ 760.1811 Required documentation and
verification.
(a) If requested by FSA, an applicant
must provide documentation that
establishes the applicant’s ownership
share and value at risk in the crop.
(b) The applicant must provide
acceptable documentation that is dated
and contains all information required to
substantiate the applicant’s certification
to the satisfaction of the FSA county
committee. Verifiable documentation is
required to substantiate the total dollar
value loss and associated affected
production, grading factors, and
nutritional factors. FSA may verify the
records with records on file at the
warehouse, gin, or other entity that
received or may have received the
reported production. Reliable
production records are required to
substantiate the reported amount of
affected production for applications not
based on the total dollar value loss.
(c) To be considered acceptable,
verifiable documentation for grain crops
that were sold may come from any time
between harvest and sale of the affected
production, unless the FSA county
committee determines the record is not
representative of the condition within
30 days of harvest. For all other crops,
the verifiable documentation must come
from tests or analysis completed within
30 days of harvest, unless the FSA
county committee determines that the
record is representative of the condition
of the affected production at time of
harvest. Examples of acceptable records
for purposes of this paragraph (c)
include:
(1) Warehouse grading sheets;
(2) Settlement sheets;
(3) Sales receipts showing grade and
price or disposition to secondary market
due to quality; and
(4) Laboratory test results.
(d) For forage crops, producers must
submit verifiable documentation
showing the nutrient factors for the
affected production. Producers must
also submit verifiable documentation of
the historical nutrient factors for the 3
preceding crop years if available. The
nutrient factors that must be
documented for a crop will determined
by the FSA county committee based on
the standard practice for the crop in that
county.
(e) For all crops other than forage
crops, producers must submit verifiable
documentation of the total dollar value
loss due to quality, if available, and
verifiable documentation of grading
factors due to quality.
(f) The participant is responsible for:
(1) Retaining, providing, and
summarizing, at time of application and
whenever required by FSA, the best
available verifiable production records
for the crop;
(2) Providing the information in a
manner that can be easily understood by
the FSA county committee; and
(3) Providing supporting
documentation about the disaster event
if the FSA county committee has reason
to question the disaster event.
(e) Participants must provide all
records for any production of a crop that
is grown with an arrangement,
agreement, or contract for guaranteed
payment.
(f) Participants are required to retain
documentation in support of their
application for 3 years after the date of
approval.
(g) Participants receiving QLA
Program payments or any other person
who furnishes such information to
USDA must permit authorized
representatives of USDA or the
Government Accountability Office,
during regular business hours, to enter
the agricultural operation and to
inspect, examine, and make copies of
books, records, or other items for the
purpose of confirming the accuracy of
the information provided by the
participant.
§ 760.1812 Payment calculation.
(a) Payments will be calculated
separately for crops based on the crop
type, intended use, certified organic or
conventional status, county, and crop
year.
(b) For forage crops with verifiable
documentation of nutrient factors for
the affected production and for the 3
preceding crop years, the payment will
be equal to the producer’s total affected
production multiplied by the producer’s
verifiable percentage of loss, multiplied
by the average market price, multiplied
by 70 percent.
(c) For forage crops with verifiable
documentation of nutrient factors for
the affected production but not for the
3 preceding crop years, the payment
will be equal to the producer’s total
affected production multiplied by the
county average percentage of loss in
paragraph (f) of this section, multiplied
by the average market price, multiplied
by 70 percent, multiplied by 50 percent.
(d) For crops other than forage with
verifiable documentation of the total
dollar value loss due to quality, the
payment will be equal to the producer’s
total dollar value loss on the affected
production, multiplied by 70 percent.
(e) For crops other than forage
without verifiable documentation of the
total dollar value loss but with verifiable
documentation of grading factors, the
payment will be equal to the producer’s
affected production multiplied by the
county average loss per unit of measure
in paragraph (g) of this section,
multiplied by 70 percent, multiplied by
50 percent.
(f) The county average percentage of
loss is the average percentage of loss
from producers eligible for payment
under paragraph (b) of this section if at
least 5 producers in a county are eligible
for payment for a crop under paragraph
(b) of this section. If less than 5
producers in a county are eligible for
payment for a crop under paragraph (b)
of this section, the Deputy
Administrator will:
(1) Determine a county average
percentage of loss based on the best
available data, including, but not
limited to, evidence of losses in
contiguous counties; or
(2) If a county average percentage of
loss cannot be determined due to
insufficient data, not issue payments to
applicants under paragraph (c) of this
section.
(g) The county average loss per unit
of measure is based on the weighted
average sales price from producers
eligible for payment under paragraph (d)
of this section if at least 5 producers in
a county are eligible for payment for a
crop under paragraph (d) of this section.
If less than 5 producers are eligible for
payment in a county under paragraph
(d) of this section, the Deputy
Administrator will:
(1) Determine a county average loss
per unit of measure based on the best
available data, including, but not
limited to, evidence of losses in
contiguous counties; or
(2) If a county average loss per unit of
measure cannot be determined due to
insufficient data, not issue payments to
applicants under paragraph (e) of this
section.
§ 760.1813 Availability of funds and timing
of payments.
(a) Payments will be issued after the
application period has ended and all
applications have been reviewed by
FSA.
(b) In the event that, within the limits
of the funding made available by the
Secretary, approval of eligible
applications would result in payments
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1
See §§1400.500(a) and 1400.1(a)(4) of this title.
1
DOE’s online database may be found at
energy.gov/guidance.
2
Executive Order 13891 defines ‘‘significant
guidance document’’ as ‘‘a guidance document that
may reasonably be anticipated to: (i) Lead to an
annual effect on the economy of $100 million or
more or adversely affect in a material way the
economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or
communities; (ii) create a serious inconsistency or
otherwise interfere with an action taken or planned
by another agency; (iii) materially alter the
budgetary impact of entitlements, grants, user fees,
or loan programs or the rights and obligations of
recipients thereof; or (iv) raise novel legal or policy
issues arising out of legal mandates, the President’s
priorities, or the principles of Executive Order
12866.’’ (84 FR 55235, 55236)
in excess of the amount available, FSA
will prorate payments by a national
factor to reduce the payments to an
amount that is less than available funds
as determined by the Secretary.
(c) Applications and claims that are
unpaid or prorated for any reason will
not be carried forward for payment
under other funds for later years or
otherwise, but will be considered, as to
any unpaid amount, void and
nonpayable.
§ 760.1814 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 the QLA Program
ends, a participant who receives
payment under this subpart for a crop
loss in a county must obtain:
(1) For an insurable crop, crop
insurance with at least a 60 percent
coverage level for that crop in that
county; or
(2) For a NAP-eligible crop, NAP
coverage with a coverage level of 60
percent.
(b) Participants who exceed the
average adjusted gross income
limitation for NAP payment eligibility
1
for the applicable crop year may meet
the purchase requirement specified in
paragraph (a)(2) of this section by
purchasing Whole-Farm Revenue
Protection crop insurance coverage, if
eligible, or paying the NAP service fee
and premium even though the
participant will not be eligible to receive
a NAP payment due to the average
adjusted gross income limit.
(c) The final crop year to purchase
crop insurance or NAP coverage to meet
the requirements of paragraph (a) of this
section is the 2023 crop year.
(d) A participant who obtained crop
insurance or NAP coverage for the crop
in accordance with the requirements for
WHIP+ in § 760.1517 is considered to
have met the requirement to purchase
crop insurance or NAP coverage for the
QLA Program.
(e) If a producer fails to obtain crop
insurance or NAP coverage as required
in this section, the producer must
reimburse FSA for the full amount of
QLA Program payment plus interest. A
producer will only be considered to
have obtained NAP coverage for the
purposes of this section if the
participant submitted a NAP application
for coverage and paid the requisite NAP
service fee and any applicable premium
by the applicable deadline and
completed all program requirements
required under the coverage agreement,
including filing an acreage report.
Richard Fordyce,
Administrator, Farm Service Agency.
[FR Doc. 2020–28914 Filed 1–5–21; 8:45 am]
BILLING CODE 3410–05–P
DEPARTMENT OF ENERGY
10 CFR Part 1061
RIN 1990–AA50
Procedures for the Issuance of
Guidance Documents
AGENCY
: Office of the General Counsel,
Department of Energy.
ACTION
: Final rule.
SUMMARY
: The U.S. Department of
Energy (DOE) publishes this final rule to
establish procedures for the issuance of
DOE guidance documents in accordance
with Executive Order 13891. In this
final rule, DOE establishes internal
agency requirements for the contents of
guidance documents, and procedures
for providing notice of, and soliciting
public comment on, certain guidance
documents. This final rule also
establishes procedures for the public to
petition DOE to modify or withdraw
guidance documents.
DATES
: The effective date of this rule is
February 5, 2021.
ADDRESSES
: The docket for this
rulemaking, which includes Federal
Register notices, comments, and other
supporting documents/materials, is
available for review at https://
www.regulations.gov. All documents in
the docket are listed in the https://
www.regulations.gov index. However,
not all documents listed in the index,
such as those containing information
that is exempt from public disclosure by
law, may be publicly available. A link
to the docket web page can be found at
https://www.regulations.gov/
document?D=DOE-HQ-2020-0033-0001.
The docket web page explains how to
access all documents, including public
comments, in the docket.
FOR FURTHER INFORMATION CONTACT
: Mr.
Matthew Ring, U.S. Department of
Energy, Office of the General Counsel,
Forrestal Building, GC–33, 1000
Independence Avenue SW, Washington,
DC 20585, (202) 586–2555, Email:
Guidance@hq.doe.gov.
SUPPLEMENTARY INFORMATION
:
I. Summary of Final Rule
In this final rule, DOE incorporates
into the Code of Federal Regulations a
new 10 CFR part 1061, which
implements the requirements of
Executive Order 13891, ‘‘Promoting the
Rule of Law Through Improved Agency
Guidance Documents.’’ (84 FR 55235
(Oct. 15, 2019)) Among other things,
Executive Order 13891 requires agencies
to provide more transparency for their
guidance documents by creating a
searchable online database for current
guidance documents,
1
and by
establishing procedures to allow the
public to comment on significant
guidance documents and to petition the
agency to withdraw or modify guidance
documents.
2
Moreover, the Executive
Order requires agencies to clearly state
in their guidance documents that such
guidance does not have the force and
effect of law and is not legally binding,
except as authorized by law or as
incorporated into a contract. (84 FR
55235, 55237)
This final rule applies to all DOE
guidance documents, as defined by
Executive Order 13891, including the
exceptions listed in section 2 of the
Executive Order. This final rule also
lists specific types of documents and
communications that fall within the
broader exceptions listed in the
Executive Order (e.g., speeches and
presentations given by DOE officials,
legal positions taken in litigation or
enforcement actions). (See also OMB M–
20–02, Guidance Implementing
Executive Order 13891, Titled
‘‘Promoting the Rule of Law Through
Improved Agency Guidance
Documents’’ (Oct. 31, 2019), available at
https://www.whitehouse.gov/wp-
content/uploads/2019/10/M-20-02-
Guidance-Memo.pdf). This final rule
also adopts the same definition of
‘‘significant guidance document’’ as
section 2 of Executive Order 13891.
In accordance with Executive Order
13891, this final rule requires that all
DOE guidance documents clearly state
that they do not have the force and
effect of law and are not legally binding
on the public, and that they are only
intended to provide clarity to the public
VerDate Sep<11>2014 16:19 Jan 05, 2021 Jkt 253001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\06JAR1.SGM 06JAR1
jbell on DSKJLSW7X2PROD with RULES

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