Noninsured Crop Disaster Assistance Program
| Citation | 85 FR 12213 |
| Record Number | 2020-04103 |
| Published date | 02 March 2020 |
| Section | Rules and Regulations |
| Court | Commodity Credit Corporation |
Federal Register, Volume 85 Issue 41 (Monday, March 2, 2020)
[Federal Register Volume 85, Number 41 (Monday, March 2, 2020)]
[Rules and Regulations]
[Pages 12213-12221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04103]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1437
[Docket No. CCC-2019-0005]
RIN 0560-AI48
Noninsured Crop Disaster Assistance Program
AGENCY: Commodity Credit Corporation and Farm Service Agency, USDA.
ACTION: Final rule.
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SUMMARY: This rule implements changes to the Noninsured Crop Disaster
Assistance Program (NAP) as required by the Agriculture Improvement Act
of 2018 (the 2018 Farm Bill). The rule makes buy-up coverage levels
available for 2019 and future years, increases service fees, and
extends the service fee waiver and premium reduction to eligible
veterans. The rule includes the changes to the payment limitation and
native sod provisions and clarifies when NAP coverage is available for
crops when certain crop insurance is available under the Federal Crop
Insurance Act. This rule is adding provisions for eligibility and
program requirements for new producers or producers with less than 1-
year growing experience with a new crop (for example, most hemp
producers). This rule also makes some additional minor changes to
clarify existing NAP requirements and improve program integrity.
DATES: Effective: March 2, 2020.
FOR FURTHER INFORMATION CONTACT: Tona Huggins, (202) 720-7641;
[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
NAP provides financial assistance to producers of noninsurable
crops to protect against natural disasters that result in crop losses
or prevent crop planting. FSA administers NAP for the Commodity Credit
Corporation (CCC) as authorized by section 196 of the Federal
Agriculture Improvement and Reform Act of 1996, as amended (7 U.S.C.
7333). NAP is administered under the general supervision of the FSA
Administrator and is carried out by FSA State and county committees.
NAP is available for crops for which catastrophic risk protection
and additional coverage under the Federal Crop Insurance Act (7 U.S.C.
1508(b) and (c), and (h)) are not available or, if such coverage is
available, it is only available under a policy that is in a ``pilot''
program category, provides coverage for specific intervals based on
weather indexes or under a whole farm plan of insurance. The
eligibility for NAP coverage is limited to:
Crops other than livestock that are commercially produced
for food and fiber, and
Other specific crops including floricultural, ornamental
nursery, and Christmas tree crops, turfgrass sod, seed crops,
aquaculture (including ornamental fish), sea grass and sea oats,
camelina, sweet sorghum, biomass sorghum, and industrial crops
(including those grown expressly for the purpose of producing a
feedstock for renewable biofuel, renewable electricity, or biobased
products).
Qualifying losses to eligible NAP crops must be due to an eligible
cause of loss as specified in 7 CFR part 1437, which includes damaging
weather (drought, hurricane, freeze, etc.) or adverse natural
occurrence (volcanic eruption, flood, etc.). In order to be eligible
for a NAP payment, producers must first apply for NAP coverage and
submit the required NAP service fee or service fee waiver to their FSA
county office by the application closing date for their crop. The NAP
application for coverage must be completed, including submission of the
service fee or a service fee waiver, before NAP coverage can begin.
Losses occurring outside a coverage period are not eligible for NAP
assistance. Producers who choose not to obtain NAP coverage for a crop
are not eligible for NAP assistance for the crop. This rule does not
change the core provisions of NAP.
The 2018 Farm Bill (Pub. L. 115-334) made several changes to NAP.
This rule amends the NAP regulations to be consistent with those
changes. The mandatory changes make ``buy-up'' coverage available for
2019 and later crop years, allowing producers to buy additional NAP
coverage for a premium, resulting in a risk management product that has
equivalent coverage levels to some types of crop insurance offered by
the Risk Management Agency (RMA). This rule also implements the 2018
Farm Bill's provisions regarding payment limitation, increased service
fees, a service fee waiver and a premium
[[Page 12214]]
reduction for eligible veterans, the beginning of the coverage period,
benefit restrictions for crops grown on native sod acreage, and the
availability of NAP coverage for crops for which crop insurance is
available under the Federal Crop Insurance Act. This rule also makes
some additional minor changes to clarify existing NAP requirements and
improve program integrity.
Eligibility of Crops Not Covered by Federal Crop Insurance
This rule implements changes required by the 2018 Farm Bill with
regard to NAP crop eligibility. The 2018 Farm Bill specifies that NAP
is available for crops for which catastrophic risk protection is not
available under section 508(b) of the Federal Crop Insurance Act and
additional coverage under subsections 508(c) and 508(h) is not
available or, if such coverage is available, it is only available under
a policy that is in a ``pilot'' program category, provides coverage for
specific intervals based on weather indexes or under a whole farm plan
of insurance. This rule amends provisions at Sec. Sec. 1437.1 and
1437.4 to be consistent with the 2018 Farm Bill.
Buy-Up Coverage Levels and Premiums
Prior to the 2014 Farm Bill, NAP provided only catastrophic
coverage (basic 50/55 coverage), which is based on the amount of loss
that exceeds 50 percent of expected production at 55 percent of the
average market price for the crop. The 2014 Farm Bill changes
authorized additional higher levels of coverage (``buy-up'' coverage)
ranging from 50 to 65 percent of production, in 5 percent increments,
at 100 percent of the average market price. However, that buy-up
coverage was only available for 2015 through 2018. The 2018 Farm Bill
makes buy-up coverage available for 2019 and future crop years. This
rule amends Sec. 1437.5 to remove the reference to 2015 through 2018
program years to be consistent with the 2018 Farm Bill. As under the
2014 Farm Bill, crops and grasses intended for grazing are specifically
excluded from buy-up coverage.
To obtain buy-up coverage, producers are required to pay a premium,
equal to 5.25 percent times the level of coverage, in addition to the
NAP service fee. The 50 percent premium reduction for beginning,
limited resource, and socially disadvantaged farmers or ranchers
specified in the regulation continues to apply for 2019 and future
years. The 2018 Farm Bill and this rule also extend the premium
reduction to eligible veteran farmer or ranchers as defined in 7 CFR
718.2. To qualify for the waiver, a veteran must have either been
farming for 10 years or less or achieved veteran status in the past 10
years.
Because the application closing dates for all 2019 crops and some
2020 crops passed prior to the announcement of 2018 Farm Bill
provisions that authorized the availability of buy-up NAP coverage, FSA
allowed producers of those crops to retroactively obtain buy-up
coverage for 2019 and 2020. On April 8, 2019, FSA announced an extended
application period for buy-up coverage for those crops through a press
release and extensive outreach efforts. Producers were required to
submit an application for coverage requesting buy-up coverage and pay
the applicable service fee by May 24, 2019. Basic 50/55 coverage was
not affected by the 2018 Farm Bill and was available prior to the
application closing dates; therefore, the application closing dates for
basic 50/55 coverage were not extended.
Service Fees
This rule amends the NAP service fees in Sec. 1437.7 as required
by the 2018 Farm Bill. The service fee has increased from $250 to $325
per crop, from $750 to $825 maximum per producer per county, and from
$1,875 to $1,950 maximum per producer for all counties. FSA implemented
the service fee increase administratively on April 8, 2019.
Prior to this rule, the NAP service fee was waived for beginning,
limited resource, and socially disadvantaged farmers. That waiver
continues to apply for those groups for 2019 and future years, and is
also made available to eligible veteran farmers as defined in 7 CFR
718.2.
Payment and Income Limitation
The 2018 Farm Bill establishes payment and income limitations that
apply to 2018 and subsequent crop, program, or fiscal year benefits.
FSA is implementing the payment and income limitations through a
separate final rule to be published in the Federal Register. The
payment and income limitations are specified in 7 CFR part 1400.
The 2018 Farm Bill established separate payment limitations for NAP
assistance. The total NAP payment amount for all crops with basic 50/55
coverage is limited to $125,000 per person or legal entity, directly or
indirectly. The total NAP payment amount for all crops with buy-up
coverage is limited to $300,000 per person or legal entity, directly or
indirectly. A producer may elect different coverage levels for
different crops; therefore, both payment limitations may apply to the
same person or legal entity. For example, a person or legal entity that
is a producer may elect basic 50/55 coverage for green peppers, a buy-
up coverage level of 55/100 for cantaloupe, and a buy-up coverage level
of 65/100 for tomatoes. In that case, the producer could receive an
annual per person or legal entity payment of up to $125,000 for
eligible losses to green peppers, and a total payment of up to $300,000
for eligible losses to cantaloupe and tomatoes.
Attribution of payments specified in 7 CFR part 1400 applies in
administering the payment limitation. The average adjusted gross income
(AGI) limit for most FSA and CCC programs, including NAP, is $900,000.
Native Sod
The 2014 Farm Bill introduced native sod provisions that required
increased NAP service fees and premiums and also reduced the actual
production history and only applied, per the 2014 Farm Bill, to certain
producers in Iowa, Minnesota, Montana, Nebraska, North Dakota, and
South Dakota. The 2014 Farm Bill applied those provisions to native sod
tilled for production of annual crops after February 7, 2014, in any
year in the first 4 years of cropping. The 2018 Farm Bill continues the
previous policy under the 2014 Farm Bill for native sod tilled for
annual crop production from February 7, 2014, through December 20,
2018. It also applies the provisions to native sod tilled for
production of any crop enrolled in NAP after December 20, 2018, for no
more than 4 years during the first 10 years of cropping. As under the
2014 Farm Bill, the NAP service fee and premiums for crops planted on
acreage subject to these provisions will be 200 percent of the amount
calculated according to Sec. 1437.7, with the premium not to exceed
the maximum amount of 5.25 percent times the payment limitation. This
rule also amends the definition of native sod to be consistent with the
new provisions. The 2018 Farm Bill does not change the de minimis
acreage exemption, which applies to areas of 5 acres or less, meaning
that for these areas are exempt from the native sod provision.
Coverage Period
Prior to the 2018 Farm Bill, the NAP coverage period could not
begin earlier than 30 days after a producer filed a NAP application for
coverage. The 2018 Farm Bill changed this requirement to specify that
the application for coverage must be filed ``by an appropriate
[[Page 12215]]
deadline before the beginning of the coverage period, as determined by
the Secretary.'' This rule amends Sec. 1437.6 to specify that a
coverage period could now begin as soon as one calendar day after an
application for coverage is filed, provided that the NAP-covered crop
has an otherwise defined coverage period that would ordinarily
accommodate that start date. This rule also specifies that the coverage
period for honey will begin the later of one calendar day after the
date the application for coverage is filed, one calendar day after the
application closing date, or the date the colonies are set in place for
honey production.
Hemp Eligibility
The 2018 Farm Bill defines ``hemp'' as the plant species Cannabis
sativa L. and any part of that plant, including the seeds thereof and
all derivatives, extracts, cannabinoids, isomers, acids, salts, and
salts of isomers, whether growing or not, with a delta-9
tetrahydrocannabinol (THC) concentration of not more than 0.3 percent
on a dry weight basis. The 2018 Farm Bill allows commercial hemp
production if the crop is grown in compliance with a State, Tribal, or
federal plan. Beginning with the 2020 crop year, hemp will be
considered an eligible crop under NAP similar other NAP crops for which
catastrophic risk protection and additional coverage under the Federal
Crop Insurance Act (7 U.S.C. 1508(b) and (c), and (h)) are not
available or, if such coverage is available, it is only available under
a policy that provides coverage for specific intervals based on weather
indexes or under a whole farm plan of insurance. This rule adds a new
section containing hemp eligibility and program requirements at Sec.
1437.108 and defines ``hemp,'' ``hemp processor,'' ``hemp processor
contract,'' and ``THC'' in Sec. 1437.3.
NAP only offers coverage to eligible hemp, which must be grown
under a Federal, State, or Tribal plan. Those plans require a license.
Therefore, to be eligible for NAP coverage, the hemp must be grown
under an official certification or license issued by the applicable
governing authority, the producer must have a hemp processor contract
for the crop by the acreage reporting date, and the crop must be
planted for harvest as hemp in accordance with that contract. If a
producer is also a hemp processor, a corporate resolution including an
adoption of the terms specified in this rule for a hemp processor
contract by the Board of Directors or officers will be considered a
hemp processor contract.
Hemp producers must provide the certification or license number and
a copy of the certificate or license, and copies of all hemp processor
contracts by the acreage reporting date. As for all crops, one of the
NAP eligibility requirements is proof of marketability. To be marketed,
hemp must be processed. Therefore, proof of marketability of the hemp
crop is shown by the contract the producer has with a hemp processor.
Hemp is not eligible for NAP benefits if the crop has a THC level above
0.3 percent; therefore, producers must also submit copies of THC test
results taken at harvest, which are required under applicable State,
Tribal, and federal plans. Due to the risk of transmission of crop
diseases that do not have adequate treatment options for hemp, hemp is
not eligible for NAP if it is grown on acres on which Cannabis, canola,
dry beans, dry peas, mustard, rapeseed, soybeans in certain states
specified by FSA, or sunflowers were grown the preceding crop year.
Hemp is not eligible for NAP benefits if the producer's certification
or license is terminated or suspended during the crop year.
Growing History Requirement for Buy-Up Coverage
FSA is making an additional change to Sec. 1437.5 to limit buy-up
coverage to crops with at least one year of successful growing history.
The 2018 Farm Bill re-authorized buy-up NAP coverage and at the same
time increased the payment limitation for crops with buy-up coverage
levels from $125,000 to $300,000 per crop year. Therefore, and
consistent with how some crop insurance products are first made
available to producers of new crops, to safeguard against potential
program abuse and ensure that the higher level of coverage and
increased payment limitation is only made available to those who have
at least demonstrated an ability to produce the crop successfully
absent disaster, FSA is making this change. Such ability is reflected
in their previous successful production of the crop. Accordingly, the
producer must have successfully produced the crop in a prior crop year
in order to be eligible to purchase buy-up NAP coverage for that crop.
Production of a crop is ``successful'' if there is some documented
record that proves that the producer was able to produce at least 50
percent of the county expected yield of the crop in the county in a
prior crop year, unless the producer's crop suffered a loss due to an
eligible cause of loss in Sec. 1437.10.
Additional Changes
In addition to the changes required by the 2018 Farm Bill, this
rule makes several additional changes to improve program integrity and
clarify NAP requirements. FSA is making changes to specify that
lightning is an eligible cause of loss and wildfire is an eligible
related condition when it occurs with an eligible cause of loss listed
in Sec. 1437.10(b)(1) or (2). It also specifies that failure to
harvest and market a crop due to lack of a sufficient plan for
harvesting and marketing given the kind of crop, amount of crop, and
time that all production may be mature and ready for harvest, the
perishability of the crop, and the means or the resources to carry out
that plan is an ineligible cause of loss. These changes to eligible and
ineligible causes of loss are intended to clarify existing policy and
do not change how FSA administers NAP.
This rule clarifies in Sec. 1437.7 that the premium for buy-up
coverage for value loss crops will be based on the lesser of the
maximum dollar value for which a producer requests coverage, subject to
the applicable payment limitation, times the coverage level, times the
5.25 percent premium. This change corrects the regulation to conform to
the statute and current NAP policy. It removes duplicate provisions for
the premium calculation for value loss crops in Sec. 1437.301.
Throughout this rule, FSA is clarifying that the certain
requirements specific to hand-harvested crops that require notification
of damage or loss within 72 hours of the date damage or loss first
becomes apparent will as well as certain appraisal requirements will
also apply to rapidly deteriorating crops. Because hand-harvested crops
are typically also crops that deteriorate quickly in the field, this
change does not substantially alter the crops subject to these
requirements. This rule amends Sec. 1437.11 to require that for hand-
harvested or rapidly deteriorating crops, a producer must request an
appraisal and release of unharvested acreage within 72 hours after the
acreage is abandoned. This change is needed in order for FSA to obtain
an accurate appraisal of potential production before the crop begins to
deteriorate. This rule does not change the current provision for crops
that are not hand-harvested or rapidly deteriorating, which requires
the producer to request an appraisal within 15 calendar days. This rule
corrects Sec. 1437.11 to apply the requirement for filing a notice of
loss to producers of value loss crops, in addition to producers of
yield-based crops. This correction is needed to ensure that all
[[Page 12216]]
crop losses are timely reported and FSA has adequate time to ensure
that an appraisal is completed.
For clarity, this rule also adds a definition of ``abandoned'' in
Sec. 1437.3, which is consistent with how FSA has previously
interpreted this term.
This rule adds provisions to Sec. 1437.7 to specify when an
acreage report must be filed. These requirements reflect current NAP
policy. This rule adds provisions to Sec. 1437.8 to require producers
to provide acceptable evidence of their risk in the crop and ability
and intent to harvest, transport, and market their expected production
determined based on the approved yield of the crop, or their inventory
for value loss crops. Acceptable evidence includes documentation such
as receipts for seed and fertilizer and contracts for harvest labor or
transport of the crop. FSA is making this clarifying change to be
consistent with the intent of NAP, which is to provide assistance to
producers who have a legitimate risk in their crops based on what they
would have reasonably been expected to successfully produce and market.
This rule amends Sec. 1437.12 to specify that FSA will establish
the average market price for a crop by obtaining market prices for the
5 consecutive crop years beginning with the most recent year for which
price data is available. This change is consistent with current
implementation of NAP and is intended to provide flexibility when price
data for a crop is unavailable for the immediately preceding crop year.
Under Sec. 1437.16, when a producer has adopted a scheme or device
or made fraudulent misrepresentations or misrepresented facts to FSA,
that producer must refund a NAP payment with interest and other amounts
as determined appropriate to the circumstances by FSA. This rule amends
those provisions to specify that FSA may assess liquidated damages of
10 percent of an expected NAP payment in those situations.
FSA has become aware that there are locations for which there are
no independent assessors or assessments available from which collective
loss determinations can be made for the geographical area. Therefore,
to provide flexibility when two independent assessments of grazed
forage acreage conditions cannot be obtained, this rule clarifies in
Sec. 1437.401 that when there is no similar mechanically harvested
forage acreage on a farm or similar farms in the area and no
independent assessments, FSA may use alternative methods for
establishing the collective percentage of loss as, determined by the
Deputy Administrator. Additionally, FSA is amending Sec. 1437.401 to
specify that if a NAP-covered producer seeks a NAP payment for forage
crop acreage intended for grazing determined based on the collective
percentage of loss, the producer is only required to file an
application for payment. A notice of loss will not be required unless
the NAP-covered producer wants a NAP payment determined based on the
NAP-covered producer's unit production similar to any other NAP-covered
crop.
This rule removes provisions in Sec. 1437.503 that made prevented
planting coverage available in Hawaii, Puerto Rico, and other tropical
areas approved by the Deputy Administrator for Farm Programs. Common
program provisions in Sec. 718.103(a) provide that in order to be
eligible for coverage for prevented planting, an eligible cause of loss
must have occurred before the final planting date for the crop or, in
the case of multiple plantings, the harvest date of the first planting
in the applicable planting period. Multiple planting periods and final
planting dates are not applicable to covered tropical crops; therefore,
tropical crops cannot be eligible for prevented planting coverage. This
rule also amends Sec. 1437.502 to refer to the maximum service fee per
crop per administrative county provided in Sec. 1437.7.
This rule also specifies that the regulation is applicable to the
2019 and subsequent crop years, and makes minor technical corrections
to Sec. 1437.5.
Streamlining Reporting and Premium Prices
The 2018 Farm Bill directed FSA to establish a streamlined process
for the submission of records and acreage reports for diverse
production systems, such as those typical of urban production systems,
other small-scale production systems, and direct-to-consumer production
systems. FSA is currently reviewing its existing policies to determine
how the process can be simplified while continuing to meet all other
statutory requirements. Any changes made will be announced in separate
rulemaking.
The 2018 Farm Bill also amended the payment provisions for crops
with buy-up coverage levels to specify that payments will be based on
``the average market price, contract price, or other premium price
(such as a local, organic, or direct market price, as elected by the
producer).'' The average market price has been typically established on
a state-by-state basis, meaning that all NAP payments for a crop and,
if applicable, for an intended use within a state would be based on the
same average market price. Average market prices are based on the best
available data (including National Agricultural Statistics Service
(NASS) data, National Institute of Food and Agriculture (NIFA) data,
knowledge of local markets, etc.) and are comparable (though not
required to be equal) to established Federal Crop Insurance Corporation
(FCIC) prices.
Beginning with the 2015 crop year, FSA had the ability to establish
separate average market prices within a State that more closely
reflected the prices obtained by producers based on specific
situations, such as the use of different farming practices
(conventional or organic) and sales to different markets (such as
direct sales to consumers at farm stands or farmer's markets). An
organic price option is currently available for crops regardless of
whether they have basic 50/55 NAP coverage or buy-up NAP coverage, and
a direct market option is currently available for crops with buy-up
coverage. FSA currently offers a contract marketing percentage option
for producers with buy-up coverage, which results in a payment based on
an established average market price for fresh and processed intended
uses. This is based on a producer's contracted uses of the crop for
that crop year, but does not use a producer's individual contract price
to calculate a NAP payment.
Effective Date, Notice and Comment, and Paperwork Reduction Act
As specified in 7 U.S.C. 9091, the regulations to implement the
provisions of Title I and the administration of Title I of the 2018
Farm Bill are:
Exempt from the notice and comment provisions of 5 U.S.C.
553,
Exempt from the Paperwork Reduction Act (44 U.S.C. chapter
35), and
To use the authority in 5 U.S.C. 808 related to
Congressional review and any potential delay in the effective date.
The APA provides that the 30-day delay in the effective date and
notice and comment provisions do not apply when the rule involves
specified actions, including matters relating to benefits. This rule
governs NAP payments and therefore falls within that exemption.
The authority provided in 5 U.S.C. 808 provides that when an agency
finds for good cause that notice and public procedure are
impracticable, unnecessary, or contrary to the public interest, that
the rule may take effect at such time as the agency determines. Due to
the nature of the rule, the mandatory requirements of the 2018 Farm
Bill, and the need to implement the regulations
[[Page 12217]]
expeditiously to provide assistance to producers, FSA and CCC find that
notice and public procedure are contrary to the public interest.
The Office of Management and Budget (OMB) designated this rule as
not major under the Congressional Review Act, as defined by 5 U.S.C.
804(2). Therefore, FSA is not required to delay the effective date for
60 days from the date of publication to allow for Congressional review.
Accordingly, 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. The requirements in
Executive Orders 12866 and 13573 for the analysis of costs and benefits
to loans apply to rules that are determined to be significant.
Executive Order 13777, ``Enforcing the Regulatory Reform Agenda,''
established a federal policy to alleviate unnecessary regulatory
burdens on the American people.
The Office of Management and Budget (OMB) designated this rule as
not significant under Executive Order 12866, ``Regulatory Planning and
Review,'' and therefore, OMB has not reviewed this rule and an analysis
of costs and benefits to loans is not required under either Executives
Orders 12866 or 13563.
Executive Order 13771, ``Reducing Regulation and Controlling
Regulatory Costs,'' requires that in order to manage the private costs
required to comply with Federal regulations that for every new
significant or economically significant regulation issued, the new
costs must be offset by the elimination of at least two prior
regulations. As this rule is designated not significant, it is not
subject to Executive Order 13771. In general response to the
requirements of Executive Order 13777, USDA created a Regulatory Reform
Task Forces, and USDA agencies were directed to remove barriers, reduce
burdens, and provide better customer service both as part of the
regulatory reform of existing regulations and as an on-going approach.
FSA reviewed this regulations and made changes to improve any provision
that was determined to be outdated, unnecessary, or ineffective.
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), generally requires an agency to prepare a regulatory analysis
of any rule whenever an agency is required by APA or any other law to
publish a proposed rule, unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. This rule is not subject to the Regulatory Flexibility Act
because as noted above, this rule is exempt from notice and comment
rulemaking requirements of the APA and no other law requires that a
proposed rule be published for this rulemaking initiative.
Environmental Review
In general, the environmental impacts of rules are to be considered
in a manner consistent with the provisions of the National
Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations
of the Council on Environmental Quality (40 CFR parts 1500-1508), and
FSA regulations for compliance with NEPA (7 CFR part 799). Some of the
changes being made in the rule were self-enacting and have already been
implemented administratively. FSA has determined that participation in
programs similar to those found in 7 CFR 1437 will not significantly
affect the quality of the human environment (7 CFR part 799.9(d)). In
addition, most of these changes are mandatory with limited or no
discretionary decisions regarding implementation. Therefore, they are
not subject to review under NEPA.
Additional changes will not have a significant impact on the
quality of the human environment either individually or cumulatively.
The environmental responsibilities for each prospective farmers will
not change from the current process followed for all farm program
actions. Therefore, FSA will not prepare an environmental assessment or
environmental impact statement on this rule.
The changes proposed include clarifications regarding eligible
losses and causes of loss (types of natural disasters). FSA has
likewise determined that these efforts do not constitute major Federal
actions that would significantly affect the quality of the human
environment, individually or cumulatively, because of their context and
the anticipated intensity of impacts.
Executive Order 12372
Executive Order 12372, ``Intergovernmental Review of Federal
Programs,'' requires consultation with State and local officials that
would be directly affected by proposed Federal financial assistance.
The objectives of the Executive Order are to foster an
intergovernmental partnership and a strengthened Federalism, by relying
on State and local processes for State and local government
coordination and review of proposed Federal financial assistance and
direct Federal development. For reasons specified in the final rule
related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June
24, 1983), the programs and activities in this rule are excluded from
the scope of Executive Order 12372.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, ``Civil
Justice Reform.'' This rule will not preempt State or local laws,
regulations, or policies unless they represent an irreconcilable
conflict with this rule. This rule does not have retroactive effect.
Before any judicial actions may be brought regarding the provisions of
this rule, the administrative appeal provisions of 7 CFR parts 11 and
780 are to be exhausted.
Executive Order 13132
This rule has been reviewed under Executive Order 13132,
``Federalism.'' The policies contained in this rule do not have any
substantial direct effect on States, on the relationship between the
Federal government and the States, or on the distribution of power and
responsibilities among the various levels of government, except as
required by law. Nor does this rule impose substantial direct
compliance costs on State and local governments. Therefore,
consultation with the States is not required.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires Federal agencies
to consult and coordinate with tribes on a government-to-government
basis on policies that have Tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have
[[Page 12218]]
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.
FSA has assessed the impact of this rule on Indian Tribes and
determined that this rule has Tribal implications that require Tribal
consultation under Executive Order 13175. Tribal consultation for this
rule was included in the 2018 Farm Bill consultation held on May 1,
2019, at the National Museum of American Indian, in Washington DC. USDA
Under Secretary for the Farm Production and Conservation mission area,
as part of Title I session. There were no specific comments from Tribes
on this rule during Tribal consultation. If a Tribe requests additional
consultation, FSA will work with the USDA Office of Tribal Relations to
ensure meaningful consultation is provided where changes, additions,
and modifications identified in this rule are not expressly mandated by
law.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions of State, local, and Tribal governments or the
private sector. Agencies generally must prepare a written statement,
including cost benefits analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any 1 year for State, local or Tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule. This
rule contains no Federal mandates, as defined in Title II of UMRA, for
State, local and Tribal governments or the private sector. Therefore,
this rule is not subject to the requirements of sections 202 and 205 of
UMRA.
Federal Assistance Programs
The title and number of the Federal Assistance Program found in the
Catalog of Federal Domestic Assistance, to which this rule applies, is:
10.451--Noninsured Assistance.
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.
List of Subjects in 7 CFR part 1437
Acreage allotments, Agricultural commodities, Crop insurance,
Disaster assistance, Fraud, Penalties, Reporting and recordkeeping
requirements.
For the reasons as stated in the preamble, CCC amends 7 CFR part
1437 as follows:
PART 1437--NONINSURED CROP DISASTER ASSISTANCE PROGRAM
0
1. The authority citation for part 1437 continues to read as follows:
Authority: 7 U.S.C. 1501-1508 and 7333; 15 U.S.C. 714-714m; 19
U.S.C. 2497, and 48 U.S.C. 1469a.
Subpart A--General Provisions
0
2. Amend Sec. 1437.1 as follows:
0
a. Revise paragraph (b); and
0
b. In paragraph (c), remove ``2015'' and add ``2019'' in its place.
The revision reads as follows:
Sec. 1437.1 Applicability.
* * * * *
(b) The provisions in this part are applicable to eligible
producers and eligible crops for which catastrophic risk protection is
not available under subsection (b) of section 508 of the Federal Crop
Insurance Act (7 U.S.C. 1508) and additional coverage under subsections
(c) and (h) of section 508 or, if coverage is available, it is only
available under a policy that provides coverage for specific intervals
based on weather indexes or under a whole farm plan of insurance.
* * * * *
0
3. Amend Sec. 1437.3 as follows:
0
a. Add the definitions of ``Abandoned'', ``Hemp'', ``Hemp processor'',
``Hemp processor contract'', and ``THC'' in alphabetical order; and
0
b. In the definition of ``Native sod'', remove the words ``for the
production of an annual crop through February 7, 2014''.
The additions read as follows:
Sec. 1437.3 Definitions.
* * * * *
Abandoned means to have discontinued care for a crop or provided
care so insignificant as to provide no benefit to the crop, or failed
to harvest in a timely manner.
* * * * *
Hemp means the plant Cannabis sativa L. and any part of that plant,
including the seeds thereof and all derivatives, extracts,
cannabinoids, isomers, acids, salts, and salts of isomers, whether
growing or not, with a THC concentration of not more than 0.3 percent
on a dry weight basis.
Hemp processor means any business enterprise regularly engaged in
processing hemp that possesses all licenses and permits for processing
hemp required by the applicable state or Federal governing authority,
and that possesses facilities, or has contractual access to such
facilities with enough equipment to accept and process contracted hemp
within a reasonable amount of time after harvest.
Hemp processor contract means a legal written agreement executed
between the producer and hemp processor engaged in the production and
processing of hemp containing at a minimum:
(1) The producer's promise to plant and grow hemp and to deliver
all hemp to the hemp processor;
(2) The hemp processor's promise to purchase the hemp produced by
the producer; and
(3) A base contract price, or method to derive a value that will be
paid to the producer for the production as specified in the processor's
contract.
(4) For a producer who is also a hemp processor, a corporate
resolution by the Board of Directors or officers of the hemp processor
will be considered a hemp processor contract if it contains the
required terms listed in this definition.
* * * * *
THC means delta-9 tetrahydrocannabinol.
* * * * *
0
4. Amend Sec. 1437.4 as follows:
0
a. Revise paragraph (a)(4)(i);
0
b. Remove paragraph (a)(4)(ii);
0
c. Redesignate paragraphs (a)(4)(iii) and (a)(4)(iv) as (a)(4)(ii) and
(a)(4)(iii), respectively;
0
d. Revise paragraph (c);
0
e. Redesignate paragraphs (d) and (e) as (e) and (f), respectively;
0
f. Add new paragraph (d); and
0
g. In newly redesignated paragraph (e), remove ``paragraph (c)'' and
add ``paragraph (d)'' in its place.
The revisions and addition read as follows.
Sec. 1437.4 Eligibility.
(a) * * *
(4) * * *
(i) Catastrophic risk protection and additional coverage under the
Federal Crop Insurance Act (7 U.S.C. 1508(b), (c), and (h)) are not
available or, if coverage is available, it is only available under a
policy that provides coverage for specific intervals based on weather
indexes or under a whole farm plan of insurance; or
* * * * *
(c) Except as specified in paragraph (e) of this section, paragraph
(d) of this
[[Page 12219]]
section will apply to native sod acreage in Iowa, Minnesota, Montana,
Nebraska, North Dakota, and South Dakota that has been tilled:
(1) During the first 4 crop years of planting for native sod
acreage that has been tilled for the production of an annual crop
during the period beginning on February 8, 2014, and ending on December
20, 2018; and
(2) For not more than any 4 crop years for native sod acreage that
has been tilled for the production of any crop after December 20, 2018:
(i) During the first 10 crop years after the initial tillage; and
(ii) For which a NAP applicant must submit a service fee or NAP
premium for a crop on that acreage.
(d) For acreage specified in paragraph (c) of this section:
(1) The approved yield will be determined by using a yield equal to
65 percent of the producer's T-yield for the annually planted crop; and
(2) The service fee or premium for the annual covered crop planted
on native sod will be equal to 200 percent of the amount determined in
Sec. 1437.7, as applicable, but the premium will not exceed the
maximum amount specified in Sec. 1437.7(d)(2).
* * * * *
0
5. Amend Sec. 1437.5 as follows:
0
a. In paragraph (d) introductory text, remove the words ``For 2015
through 2018 crop years, producers'' and add the words ``Subject to
paragraph (e) of this section, producers'' in their place; and
0
b. In paragraph (d)(1), remove the word ``your'' and add the word
``the'' in its place;
0
c. Redesignate paragraphs (e) and (f) as paragraphs (f) and (g),
respectively;
0
d. Add new paragraph (e).
The addition reads as follows:
Sec. 1437.5 Coverage levels.
* * * * *
(e) A producer cannot obtain buy-up coverage for a crop if the
producer has not successfully produced the crop in a previous year for
which documentation exists and that documentation shows that the crop
can be successfully grown by the producer in the county. Production of
the crop is considered to be successful if the producer produced at
least 50 percent of the county expected yield for the same county for
which buy-up coverage is sought, unless the producer suffered a loss on
the crop due to an eligible cause of loss in Sec. 1437.10. If not
already provided to FSA for any reason including NAP coverage or
assistance, the producer must submit documentation showing successful
growing of the crop in a previous year and, in the event a loss due to
an eligible cause of loss was sustained, submit documentation of that
loss satisfying the requirements of Sec. 1437.11.
* * * * *
0
6. Amend Sec. 1437.6 as follows:
0
a. In paragraph (a) introductory text, remove the phrase ``30 days''
and add the phrase ``1 calendar day'' in its place;
0
b. In paragraph (a)(2), remove the phrase ``30 days'' and add the
phrase ``30 calendar days'' in its place;
0
c. In paragraphs (b)(1)(i), (c), and (d), remove the phrase ``30
calendar days'' each time it appears and add the phrase ``1 calendar
day'' in its place;
0
d. Revise paragraph (e);
0
e. In paragraph (f), remove the phrase ``30 calendar days'' and add the
phrase ``1 calendar day'' in its place both times it appears;
0
f. In paragraph (g), remove the phrase ``30 calendar days'' and add the
phrase ``1 calendar day'' in its place, and remove the phrase ``30
days'' and add the phrase ``1 calendar day'' in its place; and
0
g. Revise paragraph (h).
The revisions read as follows:
Sec. 1437.6 Coverage period.
* * * * *
(e) Honey. Except as provided in paragraph (h) of this section, the
coverage period for honey begins the later of 1 calendar day after the
date of the application for coverage is filed; 1 calendar day after the
application closing date; or the date the colonies are set in place for
honey production. The coverage ends the last day of the crop year.
* * * * *
(h) 2019 and 2020 crop years. For the 2019 and 2020 crop years
only, if a crop's application closing date is before April 8, 2019, the
coverage period of the crop will be as specified in paragraphs (a)
through (g) of this section except that the date coverage begins will
be retroactive as long as the application for coverage is filed by the
application closing date as specified in Sec. 1437.7(i). This limited
retroactive coverage for the 2019 and 2020 crop years only will begin 1
calendar day after the established application closing date, which
would be the same as if they had filed by the deadlines as specified in
paragraphs (a) through (g) of this section.
0
7. Amend Sec. 1437.7 as follows:
0
a. Revise the section heading and paragraphs (b) and (e);
0
b. In paragraph (g), remove the words ``and socially'' and add the
word ``socially'' in their place, and remove the words ``ranchers
will'' and add the words ``ranchers, and veteran farmers and ranchers
will'' in their place;
0
c. Revise paragraph (i); and
0
d. Add paragraphs (j), (k), and (l).
The revisions and additions read as follows:
Sec. 1437.7 Application for coverage, service fee, premium,
transfers of coverage, and acreage report.
* * * * *
(b) The service fee or request for service fee waiver specified in
paragraph (g) of this section must accompany the application for
coverage in order for it to be considered filed. The service fee is:
(1) For applications filed by April 7, 2019, $250 per crop per
administrative county, up to $750 per producer per administrative
county, not to exceed $1,875 per producer; and
(2) For applications filed on or after April 8, 2019, $325 per crop
per administrative county, up to $825 per producer per administrative
county, not to exceed $1,950 per producer.
* * * * *
(e) For value loss crops, premiums will be equal to the lesser of:
(1) The product obtained by multiplying:
(i) A 5.25-percent premium fee; and
(ii) The applicable payment limit; or
(2) The sum of the premiums for each eligible crop, with the
premium for each eligible crop obtained by multiplying:
(i) The maximum dollar value for which coverage is sought by the
applicant;
(ii) The coverage level elected by the producer; and
(iii) A 5.25-percent premium fee.
* * * * *
(i) For the 2019 and 2020 crop years, if a crop's application
closing date is before April 8, 2019, FSA will accept applications for
coverage without regard to whether or not the application for coverage
was filed by the crop's application closing date, provided that the
application for coverage includes buy-up coverage according to Sec.
1437.5(d) and is filed by May 24, 2019. Except as specifically stated
in this rule, the provisions of this paragraph do not apply to crops
having an application closing date established on or after April 8,
2019, or to applications for coverage that do not include buy-up
coverage as an option selected by the applicant. The coverage period
for applications for coverage filed according to this paragraph will be
as specified in Sec. 1437.6.
(j) An accurate acreage report must be filed for each crop included
on an application for coverage by the earliest of:
[[Page 12220]]
(1) The acreage reporting date for the crop announced by FSA;
(2) 15 calendar days before the onset of harvest or grazing of the
crop acreage being reported; or
(3) The established normal harvest date for the end of the coverage
period.
(k) Applications for coverage for hemp are governed by this part.
(l) Applications for coverage that were filed with FSA for all
crops other than hemp that were covered under the regulations in effect
at the time of filing and which meet all the other requirements of this
section will be recognized by FSA.
0
8. Amend Sec. 1437.8 as follows:
0
a. In paragraph (a) introductory text, remove the words ``records of
crop acreage'' and add the words ``accurate records of crop acreage''
in their place and revise the last sentence.
0
b. In paragraph (b)(1), remove the words ``crops must'' and add the
words ``or rapidly deteriorating crops, as determined by the Deputy
Administrator, must'' in their place, and remove the words ``hand-
harvested crop acreage'' and add the words ``acreage of hand-harvested
or rapidly deteriorating crops'' in their place;
0
c. In paragraph (c)(1), remove the word ``and'';
0
d. In paragraph (c)(2), remove the period at the end of the paragraph
and add a semicolon in its place; and
0
e. Add paragraphs (c)(3) and (c)(4).
The revision and additions read as follows:
Sec. 1437.8 Records.
(a)* * * A certification of an amount of production itself is not a
record of production. Certifications must be accompanied by a record of
production; records of production'' in their place;
* * * * *
(c) * * *
(3) The producer's risk in the crop; and
(4) The producer's ability and intent to harvest, transport, and
market the crop's expected production determined by using the approved
yield or inventory of the crop or commodity.
* * * * *
0
9. Amend Sec. 1437.10 as follows:
0
a. Redesignate paragraphs (b)(1)(viii) and (b)(1)(ix) as paragraphs
(b)(1)(ix) and (b)(1)(x), respectively;
0
b. Add new paragraph (b)(1)(viii);
0
c. In newly redesignated paragraph (b)(1)(ix), remove the cross
reference ``(viii)'' and add the reference ``(ix)'' in its place;
0
d. In paragraph (b)(3)(iv), remove the word ``or'';
0
e. Redesignate paragraph (b)(3)(v) as paragraph (b)(3)(vi);
0
f. Add new paragraph (b)(3)(v);
0
g. In paragraph (d)(15), remove the words ``practices; or'' and add the
word ``practices;'' in their place;
0
h. In paragraph (d)(16), remove the ``.'' and add ``; or'' in its
place; and
0
i. Add paragraph (d)(17).
The additions read as follows:
Sec. 1437.10 Causes of loss.
* * * * *
(b) * * *
(1) * * *
(viii) Lightning;
* * * * *
(3) * * *
(v) Wildfire; or
* * * * *
(d) * * *
(17) Failure to harvest or market the crop due to lack of a
sufficient plan or resources.
* * * * *
0
10. Amend Sec. 1437.11 as follows:
0
a. In paragraph (a) and paragraph (b) introductory text, remove the
word ``hand-harvested'' and add the words ``hand-harvested or rapidly
deteriorating'' both times they appear;
0
b. In paragraph (b)(2), remove the word ``claims'' add the words
``claims and value loss claims'' in its place; and
0
c. Revise paragraph (d)(2)(ii).
The revision reads as follows:
Sec. 1437.11 Notice of loss, appraisal requirements, and application
for payment.
* * * * *
(d) * * *
(2) * * *
(ii) Within 72 hours after the acreage is abandoned for hand-
harvested or rapidly deteriorating crops, or within 15 calendar days
after the acreage is abandoned for all other crops;
* * * * *
Sec. 1437.12 [Amended]
0
11. Amend Sec. 1437.12 as follows:
0
a. In paragraph (b)(1), remove the words ``immediately preceding the
crop year of coverage, if available'' and add the words ``beginning
with the most recent year for which price data is available'' in their
place; and
0
b. In paragraph (b)(4), remove the words ``immediately preceding the
previous crop year'' and add the words ``beginning with the most recent
year for which price data is available'' in their place.
0
12. In Sec. 1437.16, amend paragraph (d) by adding two sentences to
the end of the paragraph to read as follows:
Sec. 1437.16 Miscellaneous provisions.
* * * * *
(d) * * *
FSA may assess liquidated damages of 10 percent of the projected or
received NAP payment for the crop or commodity in violation. Liquidated
damages are in addition to any refund of program benefits and are not
considered a penalty.
* * * * *
Subpart B--Determining Yield Coverage Using Actual Production
History
0
13. Add Sec. 1437.108 to read as follows.
Sec. 1437.108 Hemp.
(a) Hemp is eligible for NAP coverage only if the hemp is:
(1) Grown under an official certification or license issued by the
applicable governing authority that permits the production of the hemp;
(2) Grown under a hemp processor contract executed by the
applicable acreage reporting date; and
(3) Planted for harvest as hemp in accordance with the requirements
of the hemp processor contract and the production management practices
of the hemp processor.
(b) In addition to all other requirements under this part, a
producer who obtains NAP coverage for hemp must submit by the acreage
reporting date:
(1) The certification or license number;
(2) A copy of the certification form or official license issued by
the applicable governing authority authorizing the producer to produce
hemp; and
(3) A copy of each fully executed hemp processor contract.
(c) A producer must submit THC test results taken at harvest of the
hemp crop. If the producer does not submit the THC test results, that
production will not be included in the producer's actual yield for the
purpose of determining a producer's APH under Sec. 1437.101.
(d) Hemp is not eligible for NAP coverage if it is planted on acres
on which Cannabis, canola, dry beans, dry peas, mustard, rapeseed,
soybeans in states as determined by the Deputy Administrator, or
sunflowers were grown the preceding crop year.
(e) Hemp that has a THC level above 0.3 percent:
(1) Is not eligible for NAP benefits; and
(2) Is not included in the producer's actual yield for the purpose
of determining a producer's APH under Sec. 1437.101.
(f) Hemp will be ineligible for NAP payment for that NAP crop year
if the producer's certification or license is
[[Page 12221]]
terminated or suspended during that NAP crop year.
Subpart D--Determining Coverage Using Value
Sec. 1437.301 [Amended]
0
14. In Sec. 1437.301, remove paragraph (d).
Subpart E--Determining Coverage of Forage Intended for Animal
Consumption
0
15. Amend Sec. 1437.401 as follows:
0
a. In paragraph (f)(2), remove the word ``conditions'' and add the
words ``conditions, or by alternative methods as determined by the
Deputy Administrator'' in its place; and
0
b. Add paragraph (g).
The addition reads as follows:
Sec. 1437.401 Forage.
* * * * *
(g) For those NAP covered participants who seek to have a NAP
payment determined based on paragraph (f)(2) of this section, a notice
of loss under Sec. 1437.11 will not be required; only an application
for payment must be filed. Unless otherwise expressed by the NAP
covered participant, FSA will presume the participant to want
assistance for grazed forage determined according to paragraph (f)(2)
of this section.
Subpart F--Determining Coverage in the Tropical Region
Sec. 1437.502 [Amended]
0
16. Amend Sec. 1437.502 as follows:
0
a. In paragraph (b), remove ``December 1'' and add ``December 31'' in
its place.
0
b. In paragraph (c), remove the words ``per county per crop year, a
maximum service fee of $250'' and add the words ``the maximum service
fee per crop per county provided at Sec. 1437.7'' in their place.
Sec. 1437.503 [Amended]
0
17. In Sec. 1437.503(a), remove the words ``crops, other than in
Hawaii, Puerto Rico, and other areas approved by the Deputy
Administrator, except as approved by the Deputy Administrator in
special cases'' and add the word ``crops'' in their place.
Richard Fordyce,
Administrator, Farm Service Agency.
Robert Stephenson,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 2020-04103 Filed 2-28-20; 8:45 am]
BILLING CODE 3410-05-P
