Last updated on March 14th, 2023 at 04:10 pm
Title 7 – Agriculture–Volume 6
Subtitle B – Regulations of the Department of Agriculture (Continued)
CHAPTER IV – FEDERAL CROP INSURANCE CORPORATION, DEPARTMENT OF AGRICULTURE
PART 400 – GENERAL ADMINISTRATIVE REGULATIONS
Subparts A-F [Reserved
Subpart G – Actual Production History
§ 400.51 Availability of actual production history program.
An Actual Production History (APH) Coverage Program is offered under the provisions contained in the following regulations:
The APH program operates within limits prescribed by, and in accordance with, the provisions of the Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.), only on those crops identified in this section in those areas where the Actuarial Table provides coverage. Except when in conflict with this subpart, all provisions of the applicable crop insurance contract for these crops apply.
§ 400.52 Definitions.
In addition to the definitions contained in the crop insurance contract, the following definitions apply for the purposes of the APH Coverage Program:
(a) APH. Actual Production History.
(b) Actual yield. The yield per acre for a crop year calculated from the production records or claims for indemnities. The actual yield is determined by dividing total production (which includes harvested and appraised production) by planted acres for annual crops or by insurable acres for perennial crops.
(c) Adjusted yield. The transitional or determined yield reduced by the applicable percentage for lack of records. The adjusted yield will equal 65 percent of the transitional or determined yield, if no producer records are submitted; 80 percent, if records for one year are submitted; and 90 percent, if two years of records are submitted.
(d) Appraised production. Production determined by the Agricultural Stabilization and Conservation Service (ASCS), the FCIC, or a company reinsured by the FCIC, that was unharvested but which reflected the crop’s yield potential at the time of the appraisal. For the purpose of APH “appraised production” specifically excludes production lost due to uninsurable causes.
(e) Approved APH yield. A yield, calculated and approved by the verifier, used to determine the production guarantee and determined by the sum of the yearly actual, assigned, and adjusted or unadjusted transitional or determined yields divided by the number of yields contained in the database. The database may contain up to 10 consecutive crop years of actual and or assigned yields. At least four yields will always exist in the database.
(f) Assigned yield. A yield assigned by FCIC in accordance with the crop insurance contract, if the insured does not file production reports as required by the crop insurance contract. Assigned yields are used in the same manner as actual yields when calculating APH yields except for purposes of the Nonstandard Classification System (NCS).
(g) Base period. Ten consecutive crop years (except peaches, which have a five-year base period) immediately preceding the crop year defined in the insurance contract for which the approved APH yield is being established (except for sugarcane, which begins the calendar year preceding the immediate previous crop year defined in the insurance contract).
(h) Continuous production reports. Reports submitted by a producer for each crop year that the unit was planted to the crop and for the most recent crop year in the base period.
(i) Crop year. Defined in the crop insurance contract, however, for APH purposes the term does not include any year when the crop was not planted or when the crop was prevented from being planted by an insurable cause. For example, if an insured plants acreage in a county to wheat one year, that year is a crop year in accordance with the policy definition. If the land is summerfallowed the next calendar year, that calendar year is not a crop year for the purpose of APH.
(j) Database. A minimum of four years up to a maximum of ten crop years of production data used to calculate the approved APH yield.
(k) Determined yield (D-yield). An estimated year for certain crops, which can be determined by multiplying an average yield for the crop (attained by using data available from The National Agricultural Statistics Service (NASS) or comparable sources) by a percentage established by the FCIC for each county.
(l) Master yields. Approved APH yields, for certain crops and counties as initially designated by the FCIC, based on a minimum of four crop years of production records for a crop within a county.
(m) New producer. A person who has not been actively engaged in farming for a share of the production of the insured crop for more than two crop years.
(n) Production report. A written record showing the insured crop’s annual production and used to determine the insured’s yield for insurance purposes. The report contains yield history by unit, if applicable, including planted acreage for annual crops, insurable acreage for perennial crops, and harvested and appraised production for the previous crop years. This report must be supported by written verifiable records, measurement of farm stored production, or by other records of production approved by FCIC on an individual basis. Information contained in a claim for indemnity is considered a production report for the crop year for which the claim was filed.
(o) Production Reporting Date (PRD). The PRD is contained in the crop insurance contract and is the last date production reports will be accepted for inclusion in the database for the current crop year.
(p) Transitional yield (T-Yield). An estimated yield, for certain crops, generally determined by multiplying the ASCS program yield by a percentage determined by the FCIC for each county and provided on the actuarial table to be used in the APH yield calculation process when less than four consecutive crop years of actual or assigned yields are available.
(q) Verifiable records. Contemporaneous records of acreage and production provided by the insured, which may be verified by FCIC through an independent source, and which are used to substantiate the acreage and production that have been reported on the production report.
(r) Verifier. A person authorized by the FCIC to calculate approved APH yields.
(s) Yield variance tables. Tables for certain crops that indicate unacceptable yield variations and yield trends which will require determination of the APH yield by the FCIC.
§ 400.53 Yield certification and acceptability.
(a) Production reports must be provided to the crop insurance agent no later than the production reporting date for the crop insured.
(1) Production reports must provide an accurate account of planted acreage for annual crops or insurable acres for perennial crops, as well as harvested and appraised production by unit.
(2) The insured must certify the accuracy of the information.
(3) Production reported for more than one crop year must be continuous. A year in which no acreage was planted to the crop on a unit or no acreage was planted to a practice, type, or variety requiring an APH yield will not be considered a break in continuity. Assigned yields, at the discretion of the FCIC, may be used to maintain continuity of yield data of file. Production on uninsured (for those years a crop insurance policy under the Federal Crop Insurance Act is in effect) or uninsurable acreage (for other years of the period) will not be used to determine APH yield unless production from such acreage is commingled with production from insured or insurable acreage.
(b) Production reports and supporting records are subject to audit or review to verify the accuracy of the information certified. Production and supporting records may be reviewed and verified if a claim for indemnity is submitted on the insured crop. The reported yield is subject to revision, if needed, so that the claim conforms to the records submitted at that time.
(1) Inaccurate production reports or failure to retain acceptable records shall result in the verifier combining optional farm units and recomputing the approved APH yield. These actions shall be taken at any time after reporting or record discrepancies are identified and may result in reduction of the approved APH yield for any calendar year.
(2) Records must be provided by the insured at the time of an audit, review, or as otherwise requested, to verify that the acreage and production certified are accurate. Records of any other person having shares in the insured crop, which are used by the insured to establish the approved APH yield, must also be provided upon request.
(3) In the event acreage or production data certified by two or more persons sharing in the crop on the same acreage is different, the verifier shall, at the verifier’s discretion, determine which acreage and production data, if any, will be used to determine the approved APH yield. If the correct acreage and production cannot be determined, the data submitted will be considered unacceptable by the verifier for APH purposes.
(4) Failure of the producer to report acreage and production completely and accurately may result in voidance of the crop insurance contract, as well as criminal or civil false claims penalties pursuant to applicable Federal criminal or civil statutes.
§ 400.54 Submission and accuracy of production reports.
(a) The insured is solely responsible for the timely submission and certification of accurate, complete production reports to the agent. Production reports must be provided for all planted units.
(b) Records may be requested by the FCIC, or an insurance company reinsured by the FCIC, or by anyone acting on behalf of the FCIC or the insurance company. The insured must provide such records upon request.
(c) The agent will explain the APH Program to insureds and prospective insureds. When necessary, the agent will assist the insured in preparation of production reports. The agent will determine the adjusted or unadjusted transitional or determined yields in accordance with § 400.54(b). The agent will review the production reports and forward them to the verifier, along with any requested and required supporting records for determination of an approved APH yield.
(d) The verifier will determine if the certified production reports are acceptable and calculate the approved APH yield.
§ 400.55 Qualification for actual production history coverage program.
(a) The approved APH yield is calculated from a database containing a minimum of four yields and will be updated each subsequent crop year. The database may contain a maximum of the 10 most recent crop years and may include actual, assigned, and adjusted or unadjusted T or D-Yields. T or D-Yields, adjusted or unadjusted, will only occur in the database when there are less than four years of actual and/or assigned yields.
(b) The insured may be required to provide production records to determine the approved APH yield, if production records for the most recent crop year are available. If acceptable records of actual production are provided, the records must be continuous and contain at least the most recent crop year’s actual yield.
(1) If no acceptable production records are available, the approved APH yield is the adjusted T or D-Yield (65 percent of T or D-Yield).
(2) If acceptable production records containing information for only the most recent crop year are provided, the three T or D-Yields adjusted by 80 percent will be used to complete the minimum database and calculate the approved APH yield.
(3) If acceptable production records containing information for only the two most recent crop years are provided, the two T or D-Yields adjusted by 90 percent and the two actual yields will be used to complete the database and calculate the approved APH yield.
(4) If acceptable production records containing information for only the three most recent crop years are provided, the three actual yields and one unadjusted T or D-Yield are used to complete the database and calculate the approved APH yield.
(5) When the database contains four or more (up to ten) continuous actual yields, the approved APH yield is a simple average of the actual yields.
(6) New producers may have their approved APH yields based on unadjusted T or D-Yields or a combination of actual and unadjusted T or D-Yields.
(7) Producers who add land or new practice, types and varieties to their farming operations and who do not have available records for the added land, practice, types or varieties may have approved APH yields for the added land, practice, types or varieties that are based on adjusted or unadjusted T or D-Yields as determined by FCIC.
(8) If the producer’s crop is destroyed or if it produces a low actual yield due to insured causes of loss, the resulting average yield may qualify for catastrophic yield adjustment according to FCIC guidelines. APH yields qualifying for catastrophic yield adjustment may be adjusted to mitigate the effect of catastrophic years. Premium rates for approved APH yields, which are adjusted for catastrophic years, may be based on the producer’s APH average yield prior to the catastrophic adjustment or such other basis as determined appropriate by FCIC.
(c) If no insurable acreage of the insured crop is planted for a year, a production report indicating zero planted acreage will maintain the continuity of production reports for APH record purposes and that calendar year will not be included in the APH yield calculations.
(d) Actual yields calculated from the claim for indemnity will be entered in the database. The resulting average yield will be used to determine the premium rate and approved APH yield, at the discretion of FCIC.
(e) Optional units are not available to an insured who does not provide acceptable production reports for at least the most recent crop year with which to calculate an approved APH yield.
(f) FCIC may determine approved APH yields for designated crops in the following situations:
(1) If less than four years of yield history is certified and T or D-Yields are not provided in the actuarial documents,
(2) If actual yield exceed tolerances specified in yield variance tables, and
(3) For perennial crops:
(i) If significant upward or downward yield trends are indicated;
(ii) If tree or vine damage, or cultural practices will reduce the production level;
(iii) If more than two percent of the trees or vines have been removed within the last two years; or
(iv) If yield trends are evident and yields greater than the average yield are requested by the insured.
(g) APH yields will not be approved the first insurance year on perennial crops until an inspection acceptable to FCIC has been performed and the acreage is accepted for insurance purposes in accordance with the crop insurance contract.
(h) APH Master Yields may be established whenever crop rotation requirements and land leasing practices limit the yield history available. FCIC will establish crops and locations for which Master Yields are available. To qualify, the producer must have at least four recent continuous crop years’ annual production reports and must certify the authenticity of the production reports of the insured crop. Master Yields are based on acreage and production history from all acreage of the insured crop in the county in which the operator has shared in the crop’s production.
(i) FCIC may use any production report available under the provisions of any crop insurance contract, whether continuous or not, involving the interests of the person’s insured crops in determining the approved APH yield.
§ 400.56 Administrative appeal exhaustion.
The insured may appeal the approved APH yield in accordance with the procedures contained in 7 CFR part 400, subpart J. Administrative remedies through the appeal process must be exhausted prior to any action for judicial review. The approved APH yield determined as a result of the appeal process will be the yield applicable to the crop year.
§ 400.57 [Reserved]
Subpart H – Information Collection Requirements Under the Paperwork Reduction Act; OMB Control Numbers
§§ 400.65-400.66 [Reserved]
Subpart I [Reserved]
Subpart J – Appeal Procedure
§ 400.90 Definitions.
Act. The Federal Crop Insurance Act (7 U.S.C. 1501-1524).
Administrative review. A review within the Department of Agriculture of an adverse decision.
Adverse decision. A decision by an employee or Director of the Agency that is adverse to the participant. The term includes the denial of program benefits, written agreements, eligibility, etc. that results in the participant receiving less funds than the participant believes should have been paid or not receiving a benefit to which the participant believes he or she was entitled.
Agency. RMA or FCIC, including the RO, FAOB or any other division within the Agency with decision making authority.
Appellant. Any participant who requests an administrative review or mediation, or both, of an adverse decision of the Agency in accordance with this subpart. Unless otherwise specified in this subpart, the term “appellant” includes an authorized representative.
Authorized representative. Any person, whether or not an attorney, who has obtained a Privacy Act waiver and is authorized in writing by a participant to act for the participant in the administrative review, mediation, or appeal process.
Certified State. A State with a mediation program, approved by the Secretary, that meets the requirements of 7 CFR part 1946, subpart A, or a successor regulation.
FAOB. Financial and Accounting Operations Branch.
FCIC. The Federal Crop Insurance Corporation, a wholly owned Government corporation within USDA.
FSA. The Farm Service Agency, an agency within USDA, or its successor agency.
Good farming practices. For agricultural commodities insured under the terms contained in 7 CFR part 457 and all other crop insurance policies authorized under the Act, except as provided herein, means the good farming practices as defined at 7 CFR 457.8. For agricultural commodities insured under the terms contained in 7 CFR part 407, means the good farming practices as defined at 7 CFR 407.9.
Insured. An individual or entity that has applied for crop insurance or who holds a crop insurance policy that was in effect for the previous crop year and continues to be in effect for the current crop year.
Mediation. A process in which a trained, impartial, neutral third party (the mediator), meets with the disputing parties, facilitates discussions, and works with the parties to mutually resolve their disputes, narrow areas of disagreement, and improve communication.
NAD. The USDA National Appeals Division. See 7 CFR part 11.
Non-certified State. A State that is not approved by the Secretary of Agriculture to participate in the USDA Mediation Program under 7 CFR part 1946, subpart A, or its successor regulation.
Participant. An individual or entity that has applied for crop insurance or who holds a valid crop insurance policy that was in effect for the previous crop year and continues to be in effect for the current crop year. The term does not include individuals or entities whose claims arise under the programs excluded in the definition of participant published at 7 CFR 11.1.
Reinsured company. A private insurance company, including its agents, that has been approved and reinsured by FCIC to provide insurance to participants.
Reviewing authority. A person assigned the responsibility by the Agency of making a decision on a request for administrative review by the participant in accordance with this subpart.
RMA. The Risk Management Agency, an agency within USDA, or its successor agency.
RO. The Regional Office established by the agency for the purpose of providing program and underwriting services for private insurance companies reinsured by FCIC under the Act and for FCIC insurance contracts delivered through FSA offices.
Secretary. The Secretary of Agriculture.
USDA. United States Department of Agriculture.
§ 400.91 Applicability.
(a) This subpart applies to:
(1) Adverse decisions made by personnel of the Agency with respect to:
(i) Contracts of insurance insured by FCIC; and
(ii) Contracts of insurance of private insurance companies and reinsured by FCIC under the provisions of the Act.
(2) Determinations of good farming practices made by personnel of the Agency or the reinsured company (see § 400.98).
(b) This subpart is not applicable to any decision:
(1) Made by the Agency with respect to any matter arising under the terms of the Standard Reinsurance Agreement with the reinsured company; or
(2) Made by any private insurance company with respect to any contract of insurance issued to any producer by the private insurance company and reinsured by FCIC under the provisions of the Act, except for determinations of good farming practices specified in § 400.91(a)(2).
(c) With respect to matters identified in § 400.91(a)(1), participants may request an administrative review, mediation, or both, or appeal of adverse decisions by the Agency made with respect to:
(1) Denial of participation in the crop insurance program;
(2) Compliance with terms and conditions of insurance;
(3) Issuance of payments or other program benefits to a participant in the crop insurance program; and
(4) Issuance of payments or other benefits to an individual or entity who is not a participant in the crop insurance program.
(d) Only a participant may seek an administrative review and mediation under this subpart, as applicable.
(e) Notwithstanding any other provision, this subpart does not apply to any decision made by the Agency that is generally applicable to all similarly situated program participants. Such decisions are also not appealable to NAD. If the Agency determines that a decision is not appealable because it is a matter of general applicability, the participant must obtain a review by the Director of NAD in accordance with 7 CFR 11.6(a) of the Agency’s determination that the decision is not appealable before the participant may file suit against the Agency.
§ 400.92 Appeals.
(a) Except for determinations of good farming practices, nothing in this subpart prohibits a participant from filing an appeal of an adverse decision directly with NAD in accordance with part 11 of this title without first requesting administrative review or mediation under this subpart.
(b) If the participant has timely requested administrative review or mediation, the participant may not participate in a NAD hearing until such administrative review or mediation is concluded. The time for appeal to NAD is suspended from the date of receipt of a request for administrative review or mediation until the conclusion of the administrative review or mediation. The participant will have only the remaining time to appeal to NAD after the conclusion of the administrative review or mediation.
§ 400.93 Administrative review.
(a) With respect to adverse decisions, an appellant may seek one administrative review or seek mediation under § 400.94.
(b) If the appellant seeks an administrative review, the appellant must file a written request for administrative review with the reviewing authority in accordance with § 400.95. The written request must state the basis upon which the appellant relies to show that:
(1) The decision was not proper and not made in accordance with applicable program regulations and procedures; or
(2) All material facts were not properly considered in such decision.
(c) The reviewing authority will issue a written decision that will not be subject to further administrative review by the Agency.
§ 400.94 Mediation.
For adverse decisions only:
(a) Appellants have the right to seek mediation or other forms of alternative dispute resolution in addition to an administrative review under § 400.93.
(b) All requests for mediation under this subpart must be made after issuance of the adverse decision by the Agency and before the appellant has a NAD hearing on the adverse decision.
(c) An appellant who chooses mediation must request mediation not later than 30 calendar days from receipt of the written notice of the adverse decision. A request for mediation will be considered to have been “filed” when personally delivered in writing to the appropriate decision maker or when the properly addressed request, postage paid, is postmarked.
(d) An appellant will have any balance of the days remaining in the 30-day period to appeal to NAD if mediation is concluded without resolution. If a new adverse decision that raises new matters or relies on different grounds is issued as a result of mediation, the participant will have a new 30-day period for appeals to NAD.
(e) An appellant is responsible for contacting the Certified State Mediation Program in States where such mediation program exists. The State mediation program will make all arrangements for the mediation process. A list of Certified State Mediation Programs is available at http://www.act.fcic.usda.gov.
(f) An appellant is responsible for making all necessary contacts to arrange for mediation in non-certified States or in certified States that are not currently offering mediation on the subject in dispute. An appellant needing mediation in States without a certified mediation program may request mediation by contacting the RSO, which will provide the participant with a list of acceptable mediators.
(g) An appellant may only mediate an adverse decision once.
(h) If the dispute is not completely resolved in mediation, the adverse decision that was the subject of the mediation remains in effect and becomes the adverse decision that is appealable to NAD.
(i) If the adverse decision is modified as a result of the mediation process, the modified decision becomes the new adverse decision for appeal to NAD.
§ 400.95 Time limitations for filing and responding to requests for administrative review.
(a) A request for administrative review must be filed within 30 days of receipt of written notice of the adverse decision. A request for an administrative review will be considered to have been “filed” when personally delivered in writing to the appropriate decision maker or when the properly addressed request, postage paid, is postmarked.
(b) Notwithstanding paragraph (a) of this section, an untimely request for administrative review may be accepted and acted upon if the participant can demonstrate a physical inability to timely file the request for administrative review.
§ 400.96 Judicial review.
Except as provided in § 400.98, with respect to adverse determinations:
(a) A participant must exhaust administrative remedies before seeking judicial review of an adverse decision. This requires the participant to appeal an Agency adverse decision to NAD in accordance with 7 CFR part 11 prior to seeking judicial review of the adverse decision.
(b) If the adverse decision involves a matter determined by the Agency to be not appealable, the appellant must request a determination of non-appealability from the Director of NAD, and appeal the adverse decision to NAD if the Director determines that it is appealable, prior to seeking judicial review.
(c) A participant with a contract of insurance reinsured by the Agency may bring suit against the Agency if the suit involves an adverse action in a United States district court after exhaustion of administrative remedies as provided in this section. Nothing in this section can be construed to create privity of contract between the Agency and a participant.
(a) Representatives of the Agency may correct all errors in entering data on program contracts and other program documents, and the results of computations or calculations made pursuant to the contract.
(b) Nothing contained in this subpart precludes the Secretary, the Manager of FCIC, or the Administrator of RMA, or a designee, from determining at any time any question arising under the programs within their respective authority or from reversing or modifying any adverse decision.
§ 400.98 Reconsideration process.
(a) This reconsideration process only applies to determinations of good farming practices under § 400.91(a)(2).
(b) There is no appeal to NAD of determinations or reconsideration decisions regarding good farming practices.
(c) Only reconsideration is available for determinations of good farming practices. Mediation is not available for determinations of good farming practices.
(d) If the insured seeks reconsideration, the insured must file a written request for reconsideration to the following: USDA/RMA/Deputy Administrator for Insurance Services/Stop 0805, 1400 Independence Avenue SW., Washington, DC 20250-0801.
(1) A request for reconsideration must be filed within 30 days of receipt of written notice of the determination regarding good farming practices. A request for reconsideration will be considered to have been “filed” when personally delivered in writing to FCIC or when the properly addressed request, postage paid, is postmarked.
(2) Notwithstanding paragraph (d)(1) of this section, an untimely request for reconsideration may be accepted and acted upon if the insured can demonstrate a physical inability to timely file the request for reconsideration.
(3) The written request must state the basis upon which the insured relies to show that:
(i) The decision was not proper and not made in accordance with applicable program regulations and procedures; or
(ii) All material facts were not properly considered in such decision.
(e) With respect to determinations of good farming practices, the insured is not required to exhaust the administrative remedies in 7 CFR part 11 before bringing suit against FCIC in a United States district court. However, regardless of whether the Agency or the reinsured company makes the determination, the insured must seek reconsideration under § 400.98 before bringing suit against FCIC in a United States District Court. The insured cannot file suit against the reinsured company for determinations of good farming practices.
(f) Any reconsideration decision by the Agency regarding good farming practices shall not be reversed or modified as a result of judicial review unless the reconsideration decision is found to be arbitrary or capricious.
Subpart K [Reserved]
Subpart L – Reinsurance Agreement – Standards for Approval; Regulations for the 2019 and Subsequent Reinsurance Years.
§ 400.161 Definitions.
In addition to the terms defined in the Standard Reinsurance Agreement, Livestock Price Reinsurance Agreement and any other Reinsurance Agreement, the following terms as used in this rule are defined to mean:
Annual statutory financial statement means the annual financial statement of a Company prepared in accordance with Statutory Accounting Principles and submitted to the state insurance department if required by any state in which the Company is licensed.
Company means the insurance company that currently has or is applying to FCIC for a Reinsurance Agreement.
FCIC means the Federal Crop Insurance Corporation as authorized in section 503 of the Federal Crop Insurance Act (7 U.S.C. 1503).
MPUL means the maximum possible underwriting loss that a Company can sustain on policies it intends to reinsure after adjusting for the effect of any Reinsurance Agreement and any private reinsurance, as evaluated by FCIC.
Plan of Operations means the documentation and information submitted by a Company to apply for or maintain a Reinsurance Agreement as required by FCIC.
Quarterly Statutory Financial Statement means the quarterly financial statement of a Company prepared in accordance with Statutory Accounting Principles and submitted to the state insurance department if required by any state in which the Company is licensed.
Reinsurance Agreement means the Standard Reinsurance Agreement, Livestock Price Reinsurance Agreement or any other Reinsurance Agreement between the Company and FCIC.
§ 400.162 Qualification ratios.
(a) The eighteen qualification ratios include:
(1) Thirteen National Association of Insurance Commissioner’s (NAIC) Insurance Regulatory Information System (IRIS) ratios found in paragraphs (b)(1) through (12) and (17) of this section and referenced in “Using the NAIC Insurance Regulatory Information System” distributed by NAIC, 1100 Walnut St., Suite 1500, Kansas City, MO 64106-2197;
(2) Three ratios used by A.M. Best Company found in paragraphs (b)(13), (15), and (16) of this section and referenced in Best’s Key Rating Guide, A.M. Best, Ambest Road, Oldwick, N.J. 08858-0700;
(3) One ratio found in paragraph (b)(14) of this section which is formulated by FCIC and is calculated the same as the One-Year Change to Surplus IRIS ratio but for a two-year period; and
(4) One ratio found in paragraph (b)(18) of this section, which is reported on the annual statutory financial statement.
(b) The Company shall provide an explanation for any ratio falling outside of the following requirements in paragraphs (b)(1) through (18):
| Ratio | Ratio requirement |
|---|---|
| (1) Gross Premium Written to Policyholders Surplus | |
| (2) Net Premium Written to Policyholders Surplus | |
| (3) Change in Net Premiums Writings | −33% to 33% |
| (4) Surplus Aid to Policyholders Surplus | |
| (5) Two-Year Overall Operating Ratio | |
| (6) Change in Policyholders Surplus | −10% to 50% |
| (7) Investment Yield | 3.0% to 6.5% |
| (8) Liabilities to Liquid Assets | |
| (9) Gross Agents Balances to Policyholders Surplus | |
| (10) One Year Reserve Development to Policyholders Surplus | |
| (11) Two Year Reserve Development to Policyholders Surplus | |
| (12) Estimated Current Reserve Deficiency to Policyholders Surplus | |
| (13) Combined Ratio after Policyholder Dividend | |
| (14) Two Year Change in Surplus | >−10% |
| (15) Quick Liquidity | >20% |
| (16) Return on Surplus | >−5% |
| (17) Net Change in Adjusted Policyholder Surplus | −10% to 25% |
| (18) Risk Based Capital Ratio | > 200% |
§ 400.163 Applicability.
The standards contained herein shall be applicable to a Company applying for and those maintaining a Reinsurance Agreement.
§ 400.164 Eligibility for a Reinsurance Agreement.
FCIC will offer a Reinsurance Agreement to an eligible Company as determined by FCIC. To be eligible and qualify initially or thereafter for a Reinsurance Agreement with FCIC, a Company must:
(a) Be licensed or admitted in any state, territory, or possession of the United States;
(b) Be licensed or admitted, or use as a policy-issuing company, an insurance company that is licensed or admitted, in each state where the Company will write policies under a Reinsurance Agreement;
(c) Have surplus, as reported in its most recent Annual or Quarterly Statutory Financial Statement, that is at least equal to twice the MPUL amount for the Company’s estimated retained premium submitted in its plan of operation.
(d) The Company shall have the financial and operational resources, including but not limited to, organization, experience, internal controls, technical skills, positive assessment of the ratio results appearing in Section 400.162 as well as meet methodologies, data submission requirements and assessment contained in Appendix II (Plan of Operations) of the Reinsurance Agreement to meet the requirements, including addressing reasonable risks, associated with a Reinsurance Agreement, as determined by FCIC.
(e) The Company shall provide data and demonstrate a satisfactory performance record to obtain a Reinsurance Agreement and continue to hold a Reinsurance Agreement for the reinsurance year as determined by FCIC.
§§ 400.165-400.168 [Reserved]
§ 400.169 Disputes.
(a) If the Company believes that the FCIC has taken an action that is not in accordance with the provisions of a Reinsurance Agreement except compliance issues, it may request the Deputy Administrator of Insurance Services to make a final administrative determination addressing the disputed action. The Deputy Administrator of Insurance Services will render the final administrative determination of the FCIC with respect to the applicable actions. All requests for a final administrative determination must be in writing and submitted within 45 days after receipt after the disputed action.
(b) With respect to compliance matters, the Compliance Field Office renders an initial finding, permits the Company to respond, and then issues a final finding. If the Company believes that the Compliance Field Office’s final finding is not in accordance with the applicable laws, regulations, custom or practice of the insurance industry, or FCIC approved policy and procedure, it may request the Deputy Administrator of Compliance to make a final administrative determination addressing the disputed final finding. The Deputy Administrator of Compliance will render the final administrative determination of the FCIC with respect to the final finding. All requests for a final administrative determination must be in writing and submitted within 45 days after receipt of the final finding.
(c) A Company may also request reconsideration by the Deputy Administrator of Insurance Services of a decision of the FCIC rendered under any FCIC bulletin or directive which bulletin or directive does not interpret, explain, or restrict the terms of the Reinsurance Agreement. The Company, if it disputes the FCIC’s determination, must request a reconsideration of that determination in writing, within 45 days of the receipt of the determination. The determination of the Deputy Administrator of Insurance Services will be final and binding on the Company. Such determinations will not be appealable to the Board of Contract Appeals.
(d) Appealable final administrative determinations of the FCIC under paragraph (a) or (b) of this section may be appealed to the Board of Contract Appeals in accordance with 48 CFR part 6102 and with the provisions 7 CFR part 24.
§§ 400.170-400.177 [Reserved]
Subpart M – Agency Sales and Service Contract – Standards for Approval
§ 400.201 Applicability of standards.
Federal Crop Insurance Corporation will offer an Agency Sales and Service Contract (the Contract) to private entities meeting the requirements set forth in this subpart under which the Corporation will insure producers of agricultural commodities. The Contract will be consistent with the requirements of the Federal Crop Insurance Act, as amended, and the provisions of the regulations of the Corporation found at chapter IV of title 7 of the Code of Federal Regulations. The Standards contained herein are required for an entity to be a contractor under the Contract.
§ 400.202 Definitions.
For the purpose of these Standards:
(a) Agency Sales and Service Contract or the Contract means the written agreement between the Federal Crop Insurance Corporation (Corporation) and a private entity (Contractor) for the purpose of selling and servicing Federal Crop Insurance policies and includes, but is not limited to, the following:
(1) The Agency Sales and Service Contract;
(2) Any Appendix to the Agency Sales and Service Contract issued by the Corporation;
(3) The annual approved Plan or Operation; and
(4) Any amendment adopted by the parties.
(b) BELL 208B (or compatible) modem – means a modem meeting the standards developed by BELL Laboratories for dial-up, half-duplex, 4800 or 9600 bits per second (bps) transmission of data utilizing 3780 (or 2780) protocol.
(c) Contract, the see Agency Sales and Service Contract.
(d) Contractor’s electronic system (system) means the data processing hardware and software, data communications hardware and software, and printers utilized with the system.
(e) CPA means a Certified Public Accountant who is licensed as such by the State in which the CPA practices.
(f) CPA Audit means a professional examination conducted by a CPA in accordance with generally accepted auditing standards of a Financial Statement on the basis of which the CPA expresses an independent professional opinion respecting the fairness of presentation of the Financial Statement.
(g) Current Assets means cash and other assets that are reasonably expected to be realized in cash or sold or consumed during the normal operation cycle of the business or within one year if the operation cycle is shorter than one year.
(h) Current Liabilities means those liabilities expected to be satisfied by either the use of assets classified as current in the same balance sheet, or the creation of other current liabilities, or those expected to be satisfied within a relatively short period of time, usually one year.
(i) Financial Statement means the documents submitted to the Corporation by a private entity which portray the financial information of the entity. The financial statement must be prepared in accordance with Generally Accepted Accounting Principles (GAAP) and reflect the financial position in the Statement of Financial Condition or Balance Sheet; and the result of operations in the Statement of Profit and Loss or Income Statement.
(j) Processing representative means a person or organization designated by the Contractor to be responsible for data entry and electronic transmission of data contained on crop insurance documents.
(k) Sales means new applications and renewals of FCIC policies.
(l) Suspended Data Notice means a notification of a temporary stop or delay in the processing of data transmitted to the Corporation by the Contractor because the same is incomplete, non-processable, obsolete, or erroneous.
(m) 3780 protocol – means the data communications protocol (standard) that is a binary synchronous communications (BSC), International Business Systems (IBM)-defined, byte controlled communications protocol, using control characters and synchronized transmission of binary coded data.
§ 400.203 Financial statement and certification.
(a) An entity desiring to become or continue as a contractor shall submit to the Corporation a financial statement which is as of a date not more than eighteen (18) months prior to the date of submission.
(b) The financial statement submitted shall be audited by a CPA (CPA Audit); or if a CPA audited financial statement is not available, the statement submitted to the Corporation must be accompanied by a certification of:
(1) The owner, if the business entity is a sole proprietorship; or
(2) At least one of the general partners, if the business entity is a partnership; or
(3) The Chief Executive Officer and Treasurer, if the business entity is a Corporation, that said statement fairly represents the financial condition of the entity on the date of such certification to the Corporation. If the financial statement as certified by the Chief Executive Officer and Treasurer, partner, or owner is submitted, a CPA audited financial statement must be submitted if subsequently available.
§ 400.204 Notification of deviation from standards.
A Contractor shall advise the Corporation immediately if the Contractor deviates from the requirements of these standards. The Corporation may require the Contractor to show compliance with these standards during the contract year if the Corporation determines that such submission is necessary. If the Corporation determines that the deviation is temporary, the Corporation may grant a temporary waiver pending compliance within a specified period of time. A waiver of any provision of these standards will not be granted to an applicant for a contract.
§ 400.205 Denial or termination of contract and administrative reassignment of business.
Non-compliance with these standards will result in:
(a) The denial of a Contract; or
(b) Termination of an existing Contract.
In the event of denial or termination of the Contract, all crop insurance policies of the Corporation sold by the Contractor and all business pertaining thereto may be assumed by the Corporation and may be administratively reassigned by the Corporation to another Contractor.
§ 400.206 Financial qualifications for acceptability.
The financial statement of an entity must show total allowable assets in excess of liabilities and the ability of the entity to meet current liabilities by the use of current assets.
§ 400.207 Representative licensing and certification.
(a) A Contractor must maintain twenty-five (25) licensed and certified Contractor Representatives.
(b) A Contractor’s Representative who solicits, sells and services FCIC policies or represents the Contractor in solicitation, sales or service of such policies must hold a license as issued by the State or States in which the policies are issued, which license authorizes the sales of insurance in any one or more of the following lines:
(1) Multiple peril crop insurance;
(2) Crop hail insurance;
(3) Casualty insurance;
(4) Property insurance;
(5) Liability insurance; or
(6) Fire insurance and allied lines.
The Contractor must submit evidence, satisfactory to the Corporation, verifying the type of State license held by each Representative and the date of expiration of each license.
(c) A Contractor’s Representative must have achieved certification by the Corporation for each crop upon which the Representative sells and services insurance.
§ 400.208 Term of the contract.
(a) The term of the Contract shall commence on July 1 or when signed. The contract will continue from year to year with an annual renewal date of July 1 for each succeeding year unless the Corporation or the Contractor gives at least ninety (90) days advance notice in writing to the other party that the contract is not to be renewed. Any breach of the contract, or failure to comply with these Standards, by the Contractor, may result in termination of the contract by the Corporation upon written notice of termination to the Contractor. That termination will be effective thirty (30) days after mailing of the notice and termination to the Contractor.
(b) A Contractor who elects to continue under the Contract for a subsequent year must, prior to the month of June, submit a completed Plan of Operation which includes the Certifications as required by § 400.203 of this subpart. The Contractor may not perform under the contract until the Plan of Operation is approved by the Corporation.
§ 400.209 Electronic transmission and receiving system.
Any Contractor under the Contract is required to:
(a) Adopt a plan for the purpose of transmitting and receiving electronically, information to and from the Corporation concerning the original executed crop insurance documents;
(b) Maintain an electronic system which must be tested and approved by the Corporation;
(c) Maintain Corporation approval of the electronic system as a condition to the electronic transmission and reception of data by the Contractor;
(d) Utilize the Corporation approved automated data processing and electronic data transmission capabilities to process crop insurance documents as required herein; and
(e) Establish and maintain the electronic equipment and computer software program capability to:
(1) Receive and store actuarial data electronically via telecommunications utilizing 3780 protocol and utilizing a BELL 208B or compatible modem at 4800 bits per second (bps);
(2) Enter and store information from original crop insurance documents into electronic format;
(3) Verify electronically stored information recorded from crop insurance documents with electronically stored actuarial information;
(4) Compute and print the data elements in the Summary of Protection;
(5) Transmit crop insurance data electronically, via 3780 protocol utilizing a BELL 208B or compatible modem at 4800 bps;
(6) Receive electronic acknowledgements, error messages, and other data via 3780 protocol utilizing a BELL 208B or compatible modem at 4800 bps, and relate error messages to original crop insurance documents; and
(7) Store backup data and physical documents.
(The Corporation may approve other compatible specifications if accepted by the Corporation and if requested by the Contractor)
§ 400.210 [Reserved]
Subpart N [Reserved]
Subpart O – Non-Standard Underwriting Classification System Regulations for the 1991 and Succeeding Crop Years
§ 400.301 Basis, purpose, and applicability.
The regulations contained in this subpart are issued pursuant to the Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.), to prescribe the procedures for nonstandard determinations and the assignment of assigned yields or premium rates in conformance with the intent of section 508 of the Act (7 U.S.C. 1508). These regulations are applicable to all policies of insurance insured or reinsured by the Corporation under the Act and on those policies where the insurance coverage or indemnities are based on determinations applicable to the individual insured. These regulations will not be applicable to any policy where the amount of coverage or indemnities are based on the experience of the area.
§ 400.302 Definitions.
Act means Federal Crop Insurance Act as amended (7 U.S.C. 1501 et seq.).
Actively engaged in farming means a person who, in return for a share of profits and losses, makes a contribution to the production of an insurable crop in the form of capital, equipment, land, personal labor, or personal management.
Actual yield means total harvested production of a crop divided by the number of acres on which the crop was planted. For insured acres, actual yield is the total production to count as defined in the insurance policy, divided by insured acres.
Assigned yield means units of crop production per acre administratively assigned by the Corporation for the purpose of determining insurance coverage.
Corporation means the Federal Crop Insurance Corporation.
Cumulative earned premium rate is the total premium earned for all years in the base period, divided by the total liability for all years in the base period with the result expressed as a percentage.
Cumulative loss ratio means the ratio of total indemnities to total earned premiums during the base period expressed as a decimal.
Earned premium means premium earned (both the amount subsidized and the amount paid by the producer, but excluding any amount of the subsidy attributed to the operating and administrative expenses of the insurance provider) for a crop under a policy insured or reinsured by the Corporation.
Earned premium rate – means premium earned divided by liability and expressed as a percentage.
Entity – means a person as defined in this subpart other than an individual.
Indemnified loss means a loss applicable for the policy for any year during the NCS base period for which the total indemnity exceeds the total earned premium. If the person has insurance for the crop in more than one county for any crop year, indemnities and premiums will be accumulated for all counties for each crop year to determine an indemnified loss.
Insurance experience means earned premiums, indemnities paid (but not including replant payments), and other data for the crop (after applicable adjustments), resulting from all of the insured’s crop insurance policies insured or reinsured by the Corporation for one or more crop years and will include all information from all counties in which the person was insured.
Loss ratio – means the ratio of indemnity to earned premium expressed as a decimal.
NCS means nonstandard classification system.
NCS base period means the 10 consecutive crop years (as defined in the crop policy) ending 2 crop years prior to the crop year in which the NCS classification becomes effective for all crops, except those specified on the Special Provisions. For these excepted crops, the NCS base period means the 10 consecutive crop years ending 3 crop years prior to the crop year in which the NCS classification becomes effective. For example: An NCS classification effective for the 1996 crop year against a producer of citrus production in Arizona, California, and Texas, or sugarcane would have a NCS base period that includes the 1984 through 1993 crop years. An NCS classification effective for the 1996 crop year against a producer of all other crops would have a NCS base period that includes the 1985 through 1994 crop years.
Person – means an individual, partnership, association, corporation, estate, trust, or other legal entity, and whenever applicable, a State or a political subdivision, or agency of a state.
Substantial beneficial interest – means an interest of 10 percent or more. In determining whether such an interest equals at least 10 percent, all interests which are owned directly or indirectly through such means as ownership of shares in a corporation which owns the interest will be taken into consideration.
§ 400.303 Initial selection criteria.
(a) Nonstandard classification procedures in this subpart initially apply when all of the following insurance experience criteria (including any applicable adjustment in § 400.303(d)) for the crop have been met:
(1) Three (3) or more indemnified losses during the NCS base period;
(2) Cumulative indemnities in the NCS base period that exceed cumulative premiums during the same period by at least $500;
(3) The result of dividing the number of indemnified losses during the NCS base period by the number of years premium is earned for that period equals .30 or greater; and
(4) Either of the following apply:
(i) The natural logarithm of the cumulative earned premium rate multiplied by the square root of the cumulative loss ratio equals 2.00 or greater; or
(ii) Five (5) or more indemnified losses have occurred during the NCS base period and the cumulative loss ratio equals or exceeds 1.50.
(b) The minimum standards provided in paragraphs (a) (2), (3), and (4) of this section may be increased in a specific county if that county’s overall insurance experience for the crop is substantially different from the insurance experience for which the criteria was determined. The increased standard will apply until the conditions requiring the increase no longer apply. Any change in the standards will be contained in the Special Provisions for the crop.
(c) Selection criteria may be applied on the basis of insurance experience of a person, insured acreage, or the combination of both.
(1) Insurance experience of a person will include:
(i) Insurance experience of the person;
(ii) Insurance experience of other insured entities in which the person had substantial beneficial interest if the person was actively engaged in farming of the insured crop by virtue of the person’s interest in those insured entities;
(iii) Insurance experience of a spouse and minor children if the person is an individual and the spouse and minor children are considered the same as the individual under § 400.306.
(2) Insurance experience of insured acreage includes all insurance experience during the base period resulting from the production of the insured crop on the acreage.
(3) Where insurance experience is based on a combination of person and insured acreage, the insurance experience will include the experience of the person as defined in paragraph (b) of this section (1) only on the specific insured acreage during the base period.
(d) Insurance experience for the crop will be adjusted, by county and crop year, to discount the effect of indemnities caused by widespread adverse growing conditions. Adjustments are determined as follows:
(1) Determine the average yield for the county using the annual county crop yields for the previous 20 crop years, unless such data is not available;
(2) Determine the normal variability in the average yield for the county, expressed as the standard deviation;
(3) Subtract the result of § 400.303(d)(2) from § 400.303(d)(1);
(4) Divide the annual crop yield for the county for each crop year in the NCS base period by the result of § 400.303(d)(3), the result of which may not exceed 1.0;
(5) Subtract the result of § 400.303(d)(4) for each crop year from 1.0;
(6) Multiply the result of § 400.303(d)(5) by the liability for the crop year; and
(7) Subtract the result of § 400.303(d)(6) from any indemnity for that crop year.
(e) FCIC may substitute the crop yields of a comparable crop in determining § 400.303(d) (1) and (2), or may adjust the average yield or the measurement of normal variability for the county crop, or any combination thereof, to account for trends or unusual variations in production of the county crop or if the availability of yield and loss data for the county crop is limited. Information about how these determinations are made is available by submitting a request to the FCIC Regional Service Office for the producer’s area. Alternate methods of determining the effects of adverse growing conditions on insurance experience may be implemented by FCIC if allowed in the Special Provisions.
§ 400.304 Nonstandard Classification determinations.
(a) Nonstandard Classification determinations can affect a change in assigned yields, premium rates, or both from those otherwise prescribed by the insurance actuarial tables.
(b) Changes of assigned yields based on insurance experience of insured acreage (or of a person on specific insured acreage) will be based on the simple average of available actual yields from the insured acreage during the base period.
(c) Changes of assigned yields based on insurance experience of a person without regard to any specific insured acreage will be determined by an assigned yield factor calculated by multiplying excess loss cost ratio by loss frequency and subtracting that product from 1.00 where:
(1) Excess loss cost ratio is total indemnities divided by total liabilities for all years of insurance experience in the base period and the result of which is then reduced by the cumulative earned premium rate, expressed as a decimal, and
(2) Loss frequency is the number of crop years in which an indemnity was paid divided by the number of crop years in which premiums were earned during the base period.
(d) Changes of premium rates will be made to reflect premium rates that would have resulted in insurance experience during the base period with a loss ratio of 1.00 but:
(1) A higher loss ratio than 1.00 may be used for premium rate determinations provided that the higher loss ratio is applied uniformly in a county; and
(2) If a Nonstandard Classification change has been made to current assigned yields, insurance experience during the base period will be adjusted to reflect the affects of changed assigned yields before changes of premium rates are calculated based on that experience.
(e) Once selection criteria have been met in any year, Nonstandard Classification adjustments will be made from year to year until no further changes are necessary in assigned yields or premium rates under the conditions set forth in § 400.304(f). In determining whether further changes are necessary, the eligibility criteria will be recomputed each subsequent year using the premium rates and yields which would have been applicable had this part not been in effect.
(f) Nonstandard Classification changes will not be made that:
(1) Increase assigned yields or decrease premium rates from those otherwise assigned by the actuarial tables, or
(2) Result in less than a 10 percent decrease in assigned yields or less than a 10 percent increase in premium rates from those otherwise assigned by the actuarial tables.
§ 400.305 Assignment of Nonstandard Classifications.
(a) Assignment of a Nonstandard Classification of assigned yields, assigned yield factors, or premium rates shall be made on forms approved by the Corporation and included in the actuarial tables for the county.
(b) Nonstandard classification assignment will be made each year, for the year identified on the assignment forms, and are not subject to change under the provisions of this subpart by the Corporation for that year when included in the actuarial tables for the county, except as a result of a request for reconsideration as provided in section 400.309, or as the result of appeals under 7 CFR part 11.
(c) A nonstandard classification may be assigned to identified insurable acreage; a person; or to a combination of person and identified acreage for a crop or crop practice, type, variety, or crop option or amendment whereby:
(1) Classifications assigned to identified insurable acreage apply to all acres of the insured crop grown on the identified acreage;
(2) Classifications assigned to a person apply to all insurable acres of the insured crop on which the person and any entity in which the person has substantial beneficial interest is actively engaged in farming; and
(3) Classifications assigned to a combination of a person and identified insurable acreage will only apply to those acres of the insured crop grown on the identified acreage on which the named person is actively engaged in producing such crop.
§ 400.306 Spouses and minor children.
(a) The spouse and minor children of an individual are considered to be the same as the individual for purposes of this subpart except that:
(1) The spouse who was actively engaged in farming in a separate farming operation prior to their marriage will be a separate person with respect to that separate farming operation so long as that operation remains separate and distinct from any farming operation conducted by the other spouse;
(2) A minor child who is actively engaged in farming in a separate farming operation will be a separate person with respect to that separate farming operation if:
(i) The parent or other entity in which the parent has a substantial beneficial interest does not have any interest in the minor’s separate farming operation or in any production from such operation;
(ii) The minor has established and maintains a separate household from the parent;
(iii) The minor personally carries out the farming activities with respect to the minor’s farming operation; and
(iv) The minor establishes separate accounting and recordkeeping for the minor’s farming operation.
(b) An individual shall be considered to be a minor until the age of 18 is reached. Court proceedings conferring majority on an individual under 18 years of age will not change such individual’s status as a minor.
§ 400.307 Discontinuance of participation.
If the person has discontinued participation in the crop insurance program, the person will still be included on the NCS list in the county until the person has discontinued participation as a policyholder or a person with a substantial beneficial interest in a policyholder for at least 10 consecutive crop years. The most recent nonstandard classification assigned will be continued from year to year until participation has been renewed for at least one crop year and at least three years of insurance experience have occurred in the current base period. A nonstandard classification will no longer be applicable to the person or the person on identified acreage if the Corporation determines the person is deceased.
§ 400.308 Notice of Nonstandard Classification.
(a) The Corporation will give written notice to all persons to whom a Nonstandard Classification will be assigned. The notice will give the Nonstandard Classification and the person’s rights and responsibilities according to this subpart.
(b) The person, upon receiving notice from the Corporation, will be responsible for giving notice of the Nonstandard Classification to any other person with an insurable interest affected by the classification. The person will give notice to any other affected person:
(1) Prior to the sales closing date if the other affected person has an established insurable interest at the time the classified person is notified by the Corporation; or
(2) Prior to the Classified person’s establishing an insurable interest of another person that will be affected by the classification.
§ 400.309 Requests for reconsideration.
(a) Any person to be assigned a nonstandard classification under this subpart will be notified of and allowed not less that 30 days from the date notice is received to request reconsideration before the nonstandard classification becomes effective. The request will be considered to have been made when received, in writing, by the Corporation.
(b) Upon receipt of a timely request for reconsideration from the person to whom the classification will be assigned, the Corporation will:
(1) Review all information supplied by, and respond to all questions raised by the individual, or
(2) In the absence of information and questions, review insurance experience and determinations for compliance with this subpart and report review results to the individual requesting reconsideration.
(c) Upon review of a request for reconsideration, the classification to be assigned will be corrected for:
(1) Errors and omissions in insurance experience;
(2) Incorrect calculations under procedures in this subpart, and
(3) Typographical errors.
(d) If the review finds no cause for change, the classification will be assigned and placed on file in the actuarial tables for the county.
(e) Any person not satisfied by a determination of the Corporation upon reconsideration may further appeal under the provisions of 7 CFR part 11.
Subpart P – Preemption of State Laws and Regulations
§ 400.351 Basis and applicability.
The regulations contained in this subpart are issued pursuant to the Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.) (the Act), to prescribe the procedures for Federal preemption of State laws and regulations not consistent with the purpose, intent, or authority of the Act. These regulations are applicable to all policies of insurance, insured or reinsured by the Corporation, contracts, agreements, or actions authorized by the Act and entered into or issued by FCIC.
§ 400.352 State and local laws and regulations preempted.
(a) No State or local governmental body or non-governmental body shall have the authority to promulgate rules or regulations, pass laws, or issue policies or decisions that directly or indirectly affect or govern agreements, contracts, or actions authorized by this part unless such authority is specifically authorized by this part or by the Corporation.
(b) The following is a non-inclusive list of examples of actions that State or local governmental entities or non-governmental entities are specifically prohibited from taking against the Corporation or any party that is acting pursuant to this part. Such entities may not:
(1) Impose or enforce liens, garnishments, or other similar actions against proceeds obtained, or payments issued in accordance with the Federal Crop Insurance Act, these regulations, or contracts or agreements entered into pursuant to these regulations;
(2) Tax premiums associated with policies issued hereunder;
(3) Exercise approval authority over policies issued;
(4) Levy fines, judgments, punitive damages, compensatory damages, or judgments for attorney fees or other costs against companies, employees of companies including agents and loss adjustors, or Federal employees arising out of actions or inactions on the part of such individuals and entities authorized or required under the Federal Crop Insurance Act, the regulations, any contract or agreement authorized by the Federal Crop Insurance Act or by regulations, or procedures issued by the Corporation (Nothing herein precludes such damages being imposed against the company if a determination is obtained from FCIC that the company, its employee, agent or loss adjuster failed to comply with the terms of the policy or procedures issued by FCIC and such failure resulted in the insured receiving a payment in an amount that is less than the amount to which the insured was entitled); or
(5) Assess any tax, fee, or amount for the funding or maintenance of any State or local insolvency pool or other similar fund.
The preceding list does not limit the scope or meaning of paragraph (a) of this section.
Subpart Q – General Administrative Regulations; Collection and Storage of Social Security Account Numbers and Employer Identification Numbers
§ 400.401 Basis and purpose and applicability.
(a) The regulations contained in this subpart are issued pursuant to the Act to prescribe procedures for the collection, use, and confidentiality of Social Security Numbers (SSN) and Employer Identification Numbers (EIN) and related records.
(b) These regulations are applicable to:
(1) All holders of crop insurance policies issued by FCIC under the Act and sold and serviced by local FSA offices.
(2) All holders of crop insurance policies sold by insurance providers and all insurance providers, their contractors and subcontractors, including past and present officers and employees of such companies, their contractors and subcontractors.
(3) Any agent, general agent, or company, or any past or present officer, employee, contractor or subcontractor of such agent, general agent, or company under contract to FCIC or an insurance provider for loss adjustment or any other purpose related to the crop insurance programs insured or reinsured by FCIC; and
(4) All past and present officers, employees, elected officials, contractors, and subcontractors of FCIC and FSA.
§ 400.402 Definitions.
Act. The Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.).
Applicant. A person who has submitted an application for crop insurance coverage under the Act.
Authorized person. Any current or past officer, employee, elected official, general agent, contractor, or loss adjuster of FCIC, the insurance provider, or any other government agency whose duties require access to administer the Act.
Disposition of records. The act of removing and disposing of records containing a participant’s SSN or EIN by FCIC, or the insurance provider.
FCIC. The Federal Crop Insurance Corporation of the United States Department of Agriculture or any successor agency.
FSA. The Farm Service Agency of the United States Department of Agriculture, or a successor agency.
Insurance provider. A private insurance company approved by FCIC, or a local FSA office providing crop insurance coverage to producers participating in any program administered under the Act.
Past officers and employees. Any officer or employee of FCIC or the insurance provider who leaves the employ of FCIC or the insurance provider subsequent to the effective date of this rule.
Person. An individual, partnership, association, corporation, estate, trust, or other legal entity, and whenever applicable, a state, political subdivision, or an agency of a state.
Policyholder. An applicant whose application for insurance under the crop insurance program has been accepted by FCIC or the insurance provider.
Retrieval of records. Retrieval of a person’s records by that person’s SSN or EIN, or name.
Safeguards. Methods of security to be employed by FCIC or the insurance provider to protect a participant’s SSN or EIN from unlawful disclosure and access.
Storage. The secured storing of records kept by FCIC or the insurance provider on computer disks or drives, computer printouts, magnetic tape, index cards, microfiche, microfilm, etc.
Substantial beneficial interest. Any person having an interest of at least 10 percent in the applicant or policyholder.
System of records. Records established and maintained by FCIC or the insurance provider containing SSN or EIN data, name, address, city and State, applicable policy numbers, and other information related to multiple peril crop insurance policies as required by FCIC, from which information is retrieved by a personal identifier including, but not limited to the SSN, EIN, or name.
§ 400.403 Required system of records.
Insurance providers are required to implement a system of records for obtaining, using, and storing documents containing SSN or EIN data before they accept or receive any applications for insurance. This data should include: name; address; city and state; SSN or EIN; and policy numbers which have been used by FCIC or the insurance provider.
§ 400.404 Policyholder responsibilities.
(a) The policyholder or applicant for crop insurance must provide a correct SSN or EIN to FCIC or the insurance provider to be eligible for insurance. The SSN or EIN will be used by FCIC and the insurance provider in:
(1) Determining the correct parties to the agreement or contract;
(2) Collecting premiums or other amounts due FCIC or the insurance provider;
(3) Determining the amount of indemnities;
(4) Establishing actuarial data on an individual policyholder basis; and
(5) Determining eligibility for crop insurance program participation or other United States Department of Agriculture benefits.
(b) If the policyholder or applicant for crop insurance does not provide the correct SSN or EIN on the application and other forms where such SSN or EIN is required, FCIC or the reinsured company shall reject the application.
(c) The policyholder or applicant is required to provide to FCIC or the insurance provider, the name and SSN or EIN of any individual or other entity:
(1) holding or acquiring a substantial beneficial interest in such policyholder or applicant; or
(2) having any interest in the policyholder or applicant and receiving separate benefits under another United States Department of Agriculture program as a direct result of such interest.
(d) If a policyholder or applicant is using an EIN for a policy in an individual person’s name, the SSN of the policyholder or applicant must also be provided.
§ 400.405 Agent and loss adjuster responsibilities.
(a) The agent or loss adjuster shall provide his or her correct SSN to FCIC or the insurance provider, whichever is applicable, to be eligible to participate in the crop insurance program. The SSN will be used by FCIC and the insurance provider in establishing a database for the purposes of:
(1) Identifying agents and loss adjusters on an individual basis;
(2) Evaluating agents and loss adjusters to determine level of performance;
(3) Determining eligibility for program participation; and
(4) Collection of any amount which may be owed by the agent and loss adjuster to the United States.
(b) If the loss adjuster contracting with FCIC to participate in the crop insurance program does not provide his or her correct SSN on forms or contracts where such SSN is required, the loss adjuster’s contract will be cancelled effective on the date of refusal and the loss adjuster will be subject to suspension and debarment in accordance with the suspension and debarment regulations of the United States Department of Agriculture.
(c) If the agent or loss adjuster contracting with an insurance provider, who is also a private insurance company, to participate in the crop insurance program does not provide his or her correct SSN on forms or contracts where such SSN is required, the premium subsidy payable for administrative and operating expenses under the Standard Reinsurance Agreement, or any other reinsurance agreement, will not be paid on those policies lacking the correct SSN.
§ 400.406 Insurance provider responsibilities.
The insurance provider is required to collect and record the SSN or EIN on each application or on any other form required by FCIC.
§ 400.407 Restricted access.
The Manager, other officer, or employee of FCIC or an authorized person may have access to the SSNs and EINs obtained pursuant to this subpart, only for the purpose of establishing and maintaining a system of records necessary for the effective administration of the Act.
§ 400.408 Safeguards and storage.
Records must be maintained in secured storage with proper safeguards sufficient to enforce the restricted access provisions of this subpart.
Anyone having access to the records identifying a participant’s SSN or EIN will abide by the provisions of section 205(c)(2)(C) of the Social Security Act (42 U.S.C. 405(c)(2)(C), and section 6109(f), Internal Revenue Code of 1986 (26 U.S.C. 6109(f) and the Privacy Act of 1974 (5 U.S.C. 552a). All records are confidential, and are not to be disclosed to unauthorized personnel.
§ 400.410 Penalties.
Unauthorized disclosure of SSN’s or EIN’s by any person may subject that person, and the person soliciting the unauthorized disclosure, to civil or criminal sanctions imposed under various Federal statutes, including 26 U.S.C. 7613, 5 U.S.C. 552a, and 42 U.S.C. 408.
§ 400.411 Obtaining personal records.
Policyholders, agents, and loss adjusters in the crop insurance program will be able to review and correct their records as provided by the Privacy Act. Records may be requested by:
(a) Mailing a signed written request to the headquarters office of FCIC; the FCIC Regional Service Office, or the insurance provider; or
(b) Making a personal visit to the above mentioned establishments and showing valid identification.
§ 400.412 Record retention.
(a) FCIC or the insurance provider will retain all records of policyholders for a period of not less than 3 years from the date of final action on a policy for the crop year, unless further maintenance of specific records is requested by FCIC. Final actions on insurance policies include conclusion of insurance events, such as the latest of termination of the policy, completion of loss adjustment, or satisfaction of claim.
(b) The statute of limitations for FCIC contract claims may permit litigation to be instituted after the period of record retention. Destruction of records prior to the expiration of the statute of limitations will not provide a defense to any action by FCIC against any private insurance company.
§ 400.413 [Reserved]
Subpart R – Administrative Remedies for Non-Compliance
§ 400.451 General.
(a) FCIC has implemented a system of administrative remedies in its efforts to ensure program compliance and prevent fraud, waste, and abuse within the Federal crop insurance program. Such remedies include civil fines and disqualifications under the authority of section 515(h) of the Act (7 U.S.C. 1515(h)); government-wide suspension and debarment under the authority of 48 CFR part 9, 48 CFR part 409, and 2 CFR parts 180 and 417; and civil fines and assessments under the authority of the Program Fraud Civil Remedies Act (31 U.S.C. 3801-3812).
(b) The provisions of this subpart apply to all participants in the Federal crop insurance program, including but not limited to producers, agents, loss adjusters, approved insurance providers and their employees or contractors, as well as any other persons who may provide information to a program participant and meet the elements for imposition of one or more administrative remedies contained in this subpart.
(c) Any remedial action taken pursuant to this subpart is in addition to any other actions specifically provided in applicable crop insurance policies, contracts, reinsurance agreements, or other applicable statutes and regulations.
(d) This rule is applicable to any violation occurring on and after January 20, 2009.
(e) The purpose of the remedial actions authorized in this subpart are for the protection of the public interest from potential harm from persons who have abused the Federal crop insurance program, maintaining program integrity, and fostering public confidence in the program.
§ 400.452 Definitions.
For purposes of this subpart:
Act. Has the same meaning as the term in section 1 of the Common Crop Insurance Policy Basic Provisions (7 CFR 457.8).
Affiliate. Persons are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other, or, a third person controls or has the power to control both. Indicia of control include, but are not limited to: interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized following the disqualification, suspension or debarment of a person which has the same or similar management, ownership, or principal employees as the disqualified, suspended, debarred, ineligible, or voluntarily excluded person.
Agency. The person authorized by an approved insurance provider, or its designee, to sell and service a crop insurance policy under the Federal crop insurance program.
Agent. Has the same meaning as the term in 7 CFR 400.701.
Agricultural commodity. Has the same meaning as the term in section 1 of the Common Crop Insurance Policy Basic Provisions (7 CFR 457.8).
Approved insurance provider. Has the same meaning as the term in 7 CFR 400.701.
Benefit. Any advantage, preference, privilege, or favorable consideration a person receives from another person in exchange for certain acts or considerations. A benefit may be monetary or non-monetary.
FCIC. Has the same meaning as the term in 7 CFR 400.701.
Key employee. Any person with primary management or supervisory responsibilities or who has the ability to direct activities or make decisions regarding the crop insurance program.
Knows or has reason to know. When a person, with respect to a claim or statement:
(1)(i) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent;
(ii) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or
(iii) Acts in reckless disregard of the truth or falsity of the claim or statement; and
(2) No proof of specific intent is required.
Managing general agent. Has the same meaning as the term in 7 CFR 400.701.
Material. A violation that causes or has the potential to cause a monetary loss to the crop insurance program or it adversely affects program integrity, including but not limited to potential harm to the program’s reputation or allowing persons to be eligible for benefits they would not otherwise be entitled.
Participant. Any person who obtains any benefit that is derived in whole or in part from funds paid by FCIC to the approved insurance provider or premium paid by the producer. Participants include but are not limited to producers, agents, loss adjusters, agencies, managing general agencies, approved insurance providers, and any person associated with the approved insurance provider through employment, contract, or agreement.
Person. An individual, partnership, association, corporation, estate, trust or other legal entity, any affiliate or principal thereof, and whenever applicable, a State or political subdivision or agency of a State. “Person” does not include the United States Government or any of its agencies.
Policy. Has the same meaning as the term in section 1 of the Common Crop Insurance Policy Basic Provisions (7 CFR 457.8).
Preponderance of the evidence. Proof by information that, when compared with the opposing evidence, leads to the conclusion that the fact at issue is probably more true than not.
Principal. A person who is an officer, director, owner, partner, key employee, or other person within an entity with primary management or supervisory responsibilities over the entity’s federal crop insurance activities; or a person who has a critical influence on or substantive control over the federal crop insurance activities of the entity.
Producer. A person engaged in producing an agricultural commodity for a share of the insured crop, or the proceeds thereof.
Provides. Means to make available, supply or furnish with. The term includes any transmission of the information from one person to another person. For example, a producer writes information on forms and gives it to the agent and the agent transmits that information to the insurance provider. In both instances, the information is “provided” for the purpose of this rule.
Reinsurance agreement. Has the same meaning as the term in 7 CFR 400.161, except that such agreement is only between FCIC and the approved insurance provider.
Requirement of FCIC. Includes, but is not limited to, formal communications, such as a regulation, procedure, policy provision, reinsurance agreement, memorandum, bulletin, handbook, manual, finding, directive, or letter, signed or issued by a person authorized by FCIC to provide such communication on behalf of FCIC, that requires a particular participant or group of participants to take a specific action or to cease and desist from a taking a specific action (e-mails will not be considered formal communications although they may be used to transmit a formal communication). Formal communications that contain a remedy in such communication in the event of a violation of its terms and conditions will not be considered a requirement of FCIC unless such violation arises to the level where remedial action is appropriate. (For example, multiple violations of the same provision in separate policies or procedures or multiple violations of different provisions in the same policy or procedure.)
Violation. Each act or omission by a person that satisfies all required elements for the imposition of a disqualification or a civil fine contained in § 400.454.
Willful and intentional. To provide false or inaccurate information with the knowledge that the information is false or inaccurate at the time the information is provided; the failure to correct the false or inaccurate information when its nature becomes known to the person who made it; or to commit an act or omission with the knowledge that the act or omission is not in compliance with a “requirement of FCIC” at the time the act or omission occurred. No showing of malicious intent is necessary.
§ 400.453 Exhaustion of administrative remedies.
All administrative remedies contained herein or incorporated herein by reference must be exhausted before Judicial Review in the United States Courts may be sought, unless review is specifically required by statute.
§ 400.454 Disqualification and civil fines.
(a) Before any disqualification or civil fine is imposed, FCIC will provide the affected participants and other persons with notice and an opportunity for a hearing on the record in accordance with 7 CFR part 1, subpart H.
(1) Proceedings will be initiated when the Manager of FCIC files a complaint with the Hearing Clerk, United States Department of Agriculture.
(2) Disqualifications become effective:
(i) On the date specified in the order issued by the Administrative Law Judge or Judicial Officer, as applicable, or if no date is specified in the order, the date that the order was issued.
(ii) With respect to a settlement agreement with FCIC, the date contained in the settlement agreement or, if no date is specified, the date that such agreement is executed by FCIC.
(3) Disqualification and civil fines may only be imposed if a preponderance of the evidence shows that the participant or other person has met the standards contained in § 400.454(b). FCIC has the burden of proving that the standards in § 400.454(b) have been met.
(4) Disqualification and civil fines may be imposed regardless of whether FCIC or the approved insurance provider has suffered any monetary losses. However, if there is no monetary loss, disqualification will only be imposed if the violation is material in accordance with § 400.454(c).
(b) Disqualification and civil fines may be imposed on any participant or person who willfully and intentionally:
(1) Provides any false or inaccurate information to FCIC or to any approved insurance provider with respect to a policy or plan of insurance authorized under the Act either through action or omission to act when there is knowledge that false or inaccurate information is or will be provided; or
(2) Fails to comply with a requirement of FCIC.
(c) When imposing any disqualification or civil fine:
(1) The gravity of the violation must be considered when determining:
(i) Whether to disqualify a participant or other person;
(ii) The amount of time that a participant or other person should be disqualified;
(iii) Whether to impose a civil fine; and
(iv) The amount of a civil fine that should be imposed.
(2) The gravity of the violation includes consideration of whether the violation was material and if it was material:
(i) The number or frequency of incidents or duration of the violation;
(ii) Whether there is a pattern or prior history of violation;
(iii) Whether and to what extent the person planned, initiated, or carried out the violation;
(iv) Whether the person has accepted responsibility for the violation and recognizes the seriousness of the misconduct that led to the cause for disqualification or civil fine;
(v) Whether the person has paid all civil and administrative liabilities for the violation;
(vi) Whether the person has cooperated fully with FCIC (In determining the extent of cooperation, FCIC may consider when the cooperation began and whether the person disclosed all pertinent information known to that person at the time);
(vii) Whether the violation was pervasive within the organization;
(viii) The kind of positions held by the persons involved in the violation;
(ix) Whether the organization took prompt, appropriate corrective action or remedial measures, such as establishing ethics training and implementing programs to prevent recurrence;
(x) Whether the principals of the organization tolerated the offense;
(xi) Whether the person brought the violation to the attention of FCIC in a timely manner;
(xii) Whether the organization had effective standards of conduct and internal control systems in place at the time the violation occurred;
(xiii) Whether the organization has taken appropriate disciplinary action against the persons responsible for the violation;
(xiv) Whether the organization had adequate time to eliminate the violation that led to the cause for disqualification or civil fine;
(xv) Other factors that are appropriate to the circumstances of a particular case.
(3) The maximum term of disqualification and civil fines will be imposed against:
(i) Participants and other persons, except insurance providers who:
(A) Commit multiple violations in the same crop year or over several crop years; or
(B) Commit a single violation but such violation results in an overpayment of more than $100,000;
(ii) Approved insurance providers who:
(A) Commit a single violation resulting in an overpayment in excess of $100,000; and
(B) Commit multiple acts of violations resulting in an overpayment in excess of $500,000; and
(iii) Any participant or person who commits such other action or omission of so serious a nature that imposition of the maximum is appropriate.
(d) With respect to the imputing of conduct:
(1) The conduct of any officer, director, shareholder, partner, employee, or other individual associated with an organization, in violation of § 400.454(b) may be imputed to that organization when such conduct occurred in connection with the individual’s performance of duties for or on behalf of that organization, or with the organization’s knowledge, approval or acquiescence. The organization’s acceptance of the benefits derived from the violation is evidence of knowledge, approval or acquiescence.
(2) The conduct of any organization in violation of § 400.454(b) may be imputed to an individual, or from one individual to another individual, if the individual to whom the improper conduct is imputed either participated in, knows, or had reason to know of such conduct.
(3) The conduct of one organization in violation of § 400.454(b) may be imputed to another organization when such conduct occurred in connection with a partnership, joint venture, joint application, association or similar arrangement, or when the organization to whom the improper conduct is imputed has the power to direct, manage, control or influence the activities of the organization responsible for the improper conduct. Acceptance of the benefits derived from the conduct is evidence of knowledge, approval or acquiescence.
(4) If such conduct is imputed, the person to whom the conduct is imputed to may be subject to the same disqualification and civil fines as the person from whom the conduct is imputed. The factors contained in § 400.454(c)(2) will be taken into consideration with respect to the person to whom the conduct is being imputed.
(e) With respect to disqualifications:
(1) If a person is disqualified and that person is a:
(i) Producer, the producer will be precluded from receiving any monetary or non-monetary benefit provided under all of the following authorities, or their successors:
(A) The Act;
(B) The Farm Security and Rural Investment Act of 2002 (7 U.S.C. 7333 et seq.) or any successor statute;
(C) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.) or any successor statute;
(D) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et seq.) or any successor statute;
(E) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.) or any successor statute;
(F) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et seq.) or any successor statute;
(G) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921, et seq.) or any successor statute; and
(H) Any federal law that provides assistance to the producer of an agricultural commodity affected by a crop loss or decline in the prices of agricultural commodities.
(ii) Participant or other person, other than a producer, such participant or person will be precluded from participating in any way in the Federal crop insurance program and receiving any monetary or non-monetary benefit under the Act.
(2) With respect to the term of disqualification:
(i) The minimum term will be not less than one year from the effective date determined in § 400.454(a)(2);
(ii) The maximum term will be not more than five years from the effective date determined in § 400.454(a)(2); and
(iii) Disqualification is to be imposed only in one-year increments, up to the maximum five years.
(3) Once a disqualification becomes final, the name, address, and other identifying information of the participant or other person shall be entered into the Ineligible Tracking System (ITS) maintained by FCIC in accordance with 7 CFR part 400, subpart U, and this information along with a list of the programs that the person is disqualified from shall be promptly reported to the General Services Administration for listing in the System for Award Management (SAM) in accordance with 2 CFR part 417.
(i) It is a participant’s responsibility to periodically review the ITS and EPLS to determine those participants and other persons who have been disqualified.
(ii) No participant may conduct business with a disqualified participant or other person if such business directly relates to the Federal crop insurance program, or if, through the business relationship, the disqualified participant or other person will derive any monetary or non-monetary benefit from a program administered under the Act.
(iii) If a participant or other person does business with a disqualified participant or other person, such participant may be subject to disqualification under this section.
(iv) Continuing to make payments to a disqualified person to fulfill pre-existing contractual or statutory obligations after the business relationship is terminated will not be considered as doing business with a disqualified person unless such payment is used as a means to circumvent the disqualification process.
(f) With respect to civil fines:
(1) A civil fine may be imposed for each violation.
(2) The amount of such civil fine shall not exceed the maximum amount specified in 7 CFR 3.91 (b)(7).
(3) Civil fines are debts owed to FCIC.
(i) A civil fine that is either imposed under with this subpart, or agreed to through an executed settlement agreement with FCIC, must be paid by the specified due date. If the due date is not specified in the order issued by the Administrative Law Judge or Judicial Officer, as applicable, or the settlement agreement, it shall be 30 days after the date the order was issued or the settlement agreement signed by FCIC.
(ii) Any civil fine imposed under this section is in addition to any debt that may be owed to FCIC or to any approved insurance provider, such an overpaid indemnity, underpaid premium, or other amounts owed.
(iii) FCIC, in its sole discretion, may reduce or otherwise settle any civil fine imposed under this section whenever it considers it appropriate or in the best interest of the USDA.
(4) The ineligibility procedures established in 7 CFR part 400, subpart U are not applicable to ineligibility determinations made under this section for nonpayment of civil fines.
(5) If a civil fine has been imposed and the person has not made timely payment for the total amount due, the person is ineligible to participate in the Federal crop insurance program until the amount due is paid in full.
(g) With respect to any person that has been disqualified or is otherwise ineligible due to non-payment of civil fines in accordance with § 400.454(f):
(1) With respect to producers:
(i) All existing insurance policies will automatically terminate as of the next termination date that occurs during the period of disqualification and while the civil fine remains unpaid;
(ii) No new policies can be purchased, and no current policies can be renewed, between the date that the producer is disqualified and the date that the disqualification ends; and
(iii) New application for insurance cannot be made for any agricultural commodity until the next sales closing date after the period of disqualification has ended and the civil fine is paid in full.
(2) With respect to all other persons:
(i) Such person may not be involved in any function related to the Federal crop insurance program during the disqualification or ineligibility period (including the sale, service, adjustment, data transmission or storage, reinsurance, etc. of any crop insurance policy) or receive any monetary or non-monetary benefit from a program administered under the Act.
(ii) If the person is an agent or insurance agency, the producers may cancel their policies sold and serviced by the disqualified agent and rewrite the policy with another agent. If the producer does not cancel and rewrite the policy with another agent, the approved insurance provider must assign the policies to a different agent or agency to service during the period of disqualification or ineligibility. Policies that have been assigned to another agent or agency by the insurance provider will revert back to the disqualified agent or agency after the period of disqualification has ended provided all civil fines are paid in full and the producer does not cancel and rewrite the policy with a different agent or agency;
(iii) If the person is an approved insurance provider, the approved insurance provider shall not sell, or authorize to be sold, any new policies or may not renew, or authorize the renewal of, existing policies, as determined by FCIC, during the period of disqualification or ineligibility. Nothing in this provision affects the approved insurance provider’s responsibilities with respect to the service of existing policies.
(h) Imposition of disqualification or a civil fine under this section is in addition to any other administrative or legal remedies available under this section or other applicable law including, but not limited to, debarment and suspension.
§ 400.455 Governmentwide debarment and suspension (procurement).
(a) For all transactions undertaken pursuant to the Federal Acquisition Regulations, FCIC will proceed under 48 CFR part 9, subpart 9.4 or 48 CFR part 409 when taking action to suspend or debar persons involved in such transactions, except that the authority to suspend or debar under these provisions will be reserved to the Manager of FCIC, or the Manager’s designee.
(b) Any person suspended or debarred under the provisions of 48 CFR part 9, subpart 9.4 or 48 CFR part 409 will not be eligible to contract with FCIC or the Risk Management Agency and will not be eligible to participate in or receive any benefit from any program under the Act during the period of ineligibility. This includes, but is not limited to, being employed by or contracting with any approved insurance provider that sells, services, or adjusts policies offered under the authority of the Act. FCIC may waive this provision if it is satisfied that the person who employs the suspended or debarred person has taken sufficient action to ensure that the suspended or debarred person will not be involved, in any way, with FCIC or receive any benefit from any program under the Act.
§ 400.456 Governmentwide debarment and suspension (nonprocurement).
(a) FCIC will proceed under 2 CFR parts 180 and 417 when taking action to suspend or debar persons involved in non-procurement transactions.
(b) Any person suspended or debarred under the provisions of 2 CFR parts 180 and 417, will not be eligible to contract with FCIC or the Risk Management Agency and will not be eligible to participate in or receive any benefit from any program under the Act during the period of ineligibility. This includes, but is not limited to, being employed by or contracting with any approved insurance provider, or its contractors, that sell, service, or adjust policies either insured or reinsured by FCIC. FCIC may waive this provision if it is satisfied that the approved insurance provider or contractors have taken sufficient action to ensure that the suspended or debarred person will not be involved in any way with the Federal crop insurance program or receive any benefit from any program under the Act.
(c) The Manager, FCIC, shall be the debarring and suspending official for all debarment or suspension proceedings undertaken by FCIC under the provisions of 2 CFR parts 180 and 417.
§ 400.457 Program Fraud Civil Remedies Act.
(a) This section is in accordance with the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801-U.S.C. 3831) which provides for civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to Federal authorities or to their agents.
(b) Proceedings under this section will be in accordance with subpart L of 7 CFR part 1, “Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986.”
(c) The Director, Appeals and Litigation Staff, FCIC, or the Director’s designee, is authorized to serve as Agency Fraud Claims Officer for the purpose of implementing the requirements of this section.
(d) Civil penalties and assessments imposed pursuant to this section are in addition to any other remedies that may be prescribed by law or imposed under this subpart.
§ 400.458 Scheme or device.
(a) In addition to the penalties specified in this part, if a person has knowingly adopted a material scheme or device to obtain catastrophic risk protection, other plans of insurance coverage, or noninsured assistance benefits to which the person is not entitled, has evaded the provisions of the Federal Crop Insurance Act, or has acted with the purpose of evading the provisions of the Federal Crop Insurance Act, the person shall be ineligible to receive any and all benefits applicable to any crop year for which the scheme or device was adopted.
(b) A scheme or device may include, but is not limited to, creating or using another entity, or concealing or providing false information with respect to your interest in the policyholder, to evade:
(1) Suspension, debarment, or disqualification from participation in the program; or
(2) Ineligibility for a delinquent debt owed to FCIC or the insurance company.
§§ 400.459-400.500 [Reserved]
Subpart S [Reserved]
Subpart T – Federal Crop Insurance Reform, Insurance Implementation
§ 400.650 Purpose.
The Reform Act requires FCIC to implement a crop insurance program that offers several levels of insurance coverage for producers. These levels of protection include catastrophic risk protection, and additional coverage insurance. This subpart provides notice of the availability of these crop insurance options and establishes provisions and requirements for implementation of the insurance provisions of the Reform Act.
§ 400.651 Definitions.
Act. The Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.).
Additional coverage. A level of coverage greater than catastrophic risk protection.
Administrative fee. An amount the producer must pay for catastrophic, and additional coverage each crop year on a per crop and county basis as specified in the Basic Provisions or the Catastrophic Risk Protection Endorsement.
Approved insurance provider. A private insurance company, including its agents, that has been approved and reinsured by FCIC to provide insurance coverage to producers participating in the Federal crop insurance program.
Approved yield. The actual production history (APH) yield, calculated and approved by the verifier, used to determine the production guarantee by summing the yearly actual, assigned, adjusted or unadjusted transitional yields and dividing the sum by the number of yields contained in the database, which will always contain at least four yields. The database may contain up to 10 consecutive crop years of actual or assigned yields. The approved yield may have yield adjustments elected under applicable policy provisions, or other limitations according to FCIC approved procedures applied when calculating the approved yield.
Catastrophic risk protection. The minimum level of coverage offered by FCIC which is required before a person may qualify for certain other USDA program benefits unless the producer executes a waiver of any eligibility for emergency crop loss assistance in connection with the crop. For the 1995 through 1998 crop years, such coverage will offer protection equal to fifty percent (50%) of the approved yield indemnified at sixty percent (60%) of the expected market price, or a comparable coverage as established by FCIC. For the 1999 and subsequent crop years, such coverage will offer protection equal to fifty percent (50%) of the approved yield indemnified at fifty-five percent (55%) of the expected market price, or a comparable coverage as established by FCIC.
Catastrophic Risk Protection Endorsement. The part of the crop insurance policy that contains provisions of insurance that are specific to catastrophic risk protection.
Crop of economic significance. A crop that has either contributed in the previous crop year, or is expected to contribute in the current crop year, ten percent (10%) or more of the total expected value of the producer’s share of all crops grown in the county. However, a crop will not be considered a crop of economic significance if the expected liability under the Catastrophic Risk Protection Endorsement is equal to or less than the administrative fee required for the crop.
Expected market price. (price election) The price per unit of production (or other basis as determined by FCIC) anticipated during the period the insured crop normally is marketed by producers. This price will be set by FCIC before the sales closing date for the crop. The expected market price may be less than the actual price paid by buyers if such price typically includes remuneration for significant amounts of post-production expenses such as conditioning, culling, sorting, packing, etc.
FCIC. The Federal Crop Insurance Corporation, a wholly owned Government Corporation within USDA.
FSA. The Farm Service Agency, an agency of the United States Department of Agriculture or any successor agency.
Insurable interest. The value of the producer’s interest in the crop that is at risk from an insurable cause of loss during the insurance period. The maximum indemnity payable to the producer may not exceed the indemnity due on the producer’s insurable interest at the time of loss.
Intended crop. A crop stated on the application as submitted on or before the sales closing date for the crop which the producer intended to plant in the crop year for which application is made.
Linkage requirement. The legal requirement that a producer must obtain at least catastrophic risk protection coverage for any crop of economic significance as a condition of receiving benefits for such crop from certain other USDA programs in accordance with § 400.655, unless the producer executes a waiver of any eligibility for emergency crop loss assistance in connection with the crop.
Person. An individual, partnership, association, corporation, estate, trust, or other legal entity, and wherever applicable, a state or a political subdivision or agency of a state.
Reform Act. The Federal Crop Insurance Reform Act of 1994, Public Law 103-354.
Secretary. The Secretary of the United States Department of Agriculture.
Substitute crop. An alternative crop whose sales closing date has passed and that is planted on acreage that is prevented from being planted to an intended crop or where an intended crop is planted and fails.
Zero acreage report. An acreage report filed by the producer that certifies that the producer does not have a share in the crop for that crop year.
§ 400.652 Insurance availability.
(a) If sufficient actuarial data are available, FCIC will offer catastrophic risk protection, and additional coverage plans of insurance to indemnify persons for FCIC insured or reinsured crop loss due to loss of yield or prevented planting, if the crop loss or prevented planting is due to an insured cause of loss specified in the applicable crop insurance policy.
(b) Catastrophic risk protection coverage may be offered through approved insurance providers and through local offices of the Farm Service Agency specified by the Secretary. Additional coverage will only be offered through approved insurance providers unless there is not a sufficient number of approved insurance providers that offer such insurance within a service area.
(c) A person must obtain at least catastrophic risk protection for the crop on all insurable acreage in the county in which the person has a share on or before the sales closing date designated by FCIC for the crop in the county in order to satisfy the linkage requirements unless the producer executes a waiver of any eligibility for emergency crop loss assistance in connection with the crop.
(d) For additional coverage, in areas where insurance is not available for a particular agricultural commodity that is insurable elsewhere, FCIC may enter into a written agreement with a person to insure the commodity, provided that the person has actuarially sound data relating to the production of the commodity that is acceptable to FCIC and that such written agreement is specifically allowed by the crop insurance regulations applicable to the crop.
(e) Failure to comply with all provisions of the policy constitutes a breach of contract and may result in ineligibility for certain other farm program benefits for that crop year and any benefit already received must be refunded. If a producer breaches the insurance contract, the execution of a waiver of eligibility for emergency crop loss assistance will not be effective for the crop year in which the breech occurred.
§ 400.653 Determining crops of economic significance.
To be eligible for certain other program benefits under § 400.655 the following conditions will apply with respect to crops of economic significance if the producer does not execute a waiver of any eligibility for emergency crop loss assistance in connection with the crop.
(a) If a producer planted a crop of economic significance in the preceding crop year, and does not intend to plant the same crop in the present crop year, the producer does not have to obtain insurance coverage or execute a waiver of any eligibility for emergency crop loss assistance in connection with the crop in the present crop year to comply with the linkage requirements. However, if the producer later decides to plant that crop, the producer will be unable to obtain insurance after the sales closing date and must execute a waiver of any eligibility for emergency crop loss assistance in connection with the crop to be eligible for benefits as specified in § 400.655. Failure to execute such a waiver will require the producer to refund any benefits already received under a program specified in § 400.655.
(b) The producer is initially responsible to determine the crops of economic significance in the county. The insurance provider may assist the producer in making these initial determinations. However, these determinations will not be binding on the insurance provider. To determine the percentage value of each crop:
(1) Multiply the acres planted to the crop times the producer’s share, times the approved yield, and times the price;
(2) Add the values of all crops grown by the producer (in the county); and
(3) Divide the value of the specific crop by the result of paragraph (b)(2).
(c) The producer may use the type of price, such as the current local market price, futures price, established price, highest amount of insurance, etc., for the price when calculating the value of each crop, provided that the producer uses the same type of price for all crops in the county.
(d) The producer may be required to justify the calculation and provide adequate records to enable the insurance provider to verify whether a crop is of economic significance.
§ 400.654 Application and acreage report.
(a) To participate in catastrophic risk protection, or additional coverage plans of insurance, a producer must submit an application for insurance on or before the applicable sales closing date.
(b) In order to remain eligible for certain farm programs, as specified in § 400.655, a producer must obtain at least catastrophic risk protection on all crops of economic significance, if catastrophic risk protection is available in the county, unless the producer executes a waiver of any eligibility for emergency crop loss assistance in connection with the crop.
(c) Notwithstanding the requirements of § 400.654(a) that applications for insurance be submitted on or before the applicable sales closing date, FCIC may permit a producer to insure crops other than those specified on the application under the following conditions:
(1) The producer must be unable to plant the intended crop or it is not practical to replant a failed crop before the final planting date. FCIC will take into consideration marketing windows when determining whether it was not practical to replant.
(2) Conditions must exist to warrant allowing a producer to insure crops other than the intended crop.
(3) The producer must submit an application for the substitute crop on or before the acreage reporting date for the substitute crop and pay any applicable administrative fee. A producer may not substitute a crop that the producer planted in the preceding crop year unless that crop was listed on a timely filed application for the current crop year.
(4) If the producer plants a substitute crop that is a crop of economic significance, the producer must obtain CAT coverage, if available, to comply with the linkage requirements specified in § 400.655. The producer may not substitute a crop under this provision if the producer has signed or intends to sign a waiver for emergency crop loss assistance for the crop year.
(5) The substitute crop must be planted on or before the final planting date or within the late planting period, if applicable, for the substitute crop.
(6) Under no circumstances may a producer submit an application for additional coverage after the sales closing date for the substitute crop.
(d) For all coverages, including catastrophic risk protection, and additional coverages, the producer must file a signed acreage report on or before the acreage reporting date. Any person may sign any document relative to crop insurance coverage on behalf of any other person covered by such a policy, provided that the person has a properly executed power of attorney or other legally sufficient document authorizing such person to sign.
(e) Under catastrophic risk protection, unless the other person with an insurable interest in the crop objects in writing prior to the acreage reporting date and provides a signed acreage report on their own behalf an operator may sign the acreage report for all other persons with an insurable interest in the crop without a power of attorney. All persons with an insurable interest in the crop, and for whom the operator purports to sign and represent, are bound by the information contained in that acreage report.
§ 400.655 Eligibility for other program benefits.
The producer must obtain at least catastrophic coverage for each crop of economic significance in the county in which the producer has an insurable share, if insurance is available in the county for the crop, unless the producer executes a waiver of any eligibility for emergency crop loss assistance in connection with the crop, to be eligible for:
(a) Benefits under the Agricultural Market Transition Act;
(b) Loans or any other USDA provided farm credit, including: guaranteed and direct farm ownership loans, operating loans, and emergency loans under the Consolidated Farm and Rural Development Act provided after October 13, 1994; and
(c) Benefits under the Conservation Reserve Program derived from any new or amended application or contract executed after October 13, 1994.
§§ 400.656-400.657 [Reserved]
Subpart U – Ineligibility for Programs Under the Federal Crop Insurance Act
§ 400.675 Purpose.
This subpart prescribes conditions under which a person may be determined to be ineligible to participate in any program administered under the authority of the Federal Crop Insurance Act. This subpart also establishes the criteria for regaining eligibility.
§ 400.676 [Reserved]
§ 400.677 Definitions.
As used in this subpart:
Act means the Federal Crop Insurance Act (7 U.S.C. 1501-1524).
Applicant means a person who has submitted an application for crop insurance coverage under the Act.
Authorized person means any current or past officer, employee, elected official, managing general agent, agent, or contractor of an insurance provider, FCIC, or any other government agency whose duties require access to the ITS to administer the Act.
Controlled substance has the same meaning provided in 7 CFR 3021.610.
Conviction means a judgment or any other determination of guilt of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or plea, including a plea of no contest.
Date of delinquency means: The termination date specified in the applicable policy for administrative fees and premiums owed for insurance issued under the authority of the Act, and any interest and penalties on those amounts, if applicable; and the due date specified in the notice to the person of the amount due for any other amounts due the insurance provider or FCIC for insurance issued under the authority of the Act. Other amounts due include, but are not limited to, indemnities, prevented planting payments, or replant payments found not to have been earned or that were overpaid, premium billed with a due date after the termination date for the crop year in which premium is earned, and any interest, administrative fees, and penalties on such amounts, if applicable. Payments postmarked or received before the date of delinquency by the insurance provider or its agent for debts owed to the insurance provider, or by FCIC for debts owed to FCIC, are not delinquent.
Debt means an amount of money that has been determined to be owed by any person to FCIC or an insurance provider, excluding money owed to an insurance provider’s agent, under any program administered under the Act. The debt may have arisen from nonpayment of interest, penalties, premium, or administrative fee; overpayment of indemnity, prevented planting or replant payment; cost of collection; or other causes. A debt does not include debts discharged in bankruptcy.
Debtor means a person who owes a debt and that debt is delinquent.
Delinquent debt means a debt that is not satisfied on or before the date of delinquency. To avoid delinquency or ineligibility due to a delinquent debt, a debtor may enter into a written payment agreement acceptable to the insurance provider or FCIC to pay any such debt as long as all payments are made by the due dates specified in such written payment agreement. A delinquent debt does not include debts discharged in bankruptcy or any debt to an insurance provider’s agent.
Employer Identification Number (EIN) means a Tax Identification Number issued by the Internal Revenue Service used to identify a business entity, and may also be referred to as a Federal Tax Identification Number.
Excluded Parties List System (EPLS) means a list maintained by the General Services Administration that provides a source of current information about persons who are excluded or disqualified from covered transactions, including the date the person was determined ineligible and the date the period of ineligibility ends.
Federal Crop Insurance Corporation (FCIC) means a wholly owned government corporation within the USDA.
Ineligible person means a person who is denied participation in any program administered under the authority of the Act.
Ineligible Tracking System (ITS) means an electronic system to identify persons who are ineligible to participate in any program pursuant to this subpart.
Insurance Provider means a legal entity which has entered into a Standard Reinsurance Agreement, Livestock Price Reinsurance Agreement, or other reinsurance agreement, as applicable, with FCIC for the applicable reinsurance year.
Livestock Price Reinsurance Agreement means a cooperative financial assistance agreement between FCIC and an insurance provider to deliver eligible livestock price insurance contracts under the authority of the Act and establishes the terms and conditions under which FCIC will provide subsidy and reinsurance on eligible livestock price insurance policies sold.
Meaningful opportunity to contest means the opportunity for the insured to resolve disagreements with a decision by the insurance provider through requesting a review of the decision by the insurance provider, mediation, arbitration, or judicial review, as applicable.
Person means an individual, partnership, association, corporation, estate, trust, or other legal entity, and wherever applicable, a State or political subdivision or agency of a State. “Person” does not include the United States Government or any agency thereof.
Qualified alien has the same meaning provided in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641).
Reinstatement means that the policy will retain the same plan of insurance, coverage levels, price percentages, endorsements and options the person had prior to termination, provided the person continues to meet all eligibility requirements, comply with the terms of the policy, and there is no evidence of misrepresentation or fraud.
Social Security Number (SSN) means an individual’s Social Security Number as issued under the authority of the Social Security Act.
Standard Reinsurance Agreement (SRA) means a cooperative financial assistance agreement between FCIC and an insurance provider to deliver eligible crop insurance contracts under the authority of the Act and establishes the terms and conditions under which FCIC will provide subsidy and reinsurance on eligible crop insurance policies sold.
Substantial beneficial interest has the same meaning as contained in the applicable policy.
USDA means the United States Department of Agriculture.
United States non-citizen national has the same meaning provided in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. § 1408).
Written payment agreement means a written document between a debtor and the insurance provider, or FCIC, that is signed and dated by all applicable parties to satisfy financial obligations of the debtor with scheduled installment payments under conditions that modify the terms of the original debt in accordance with § 400.681.
§ 400.678 Applicability.
This subpart applies to any program administered under the authority of the Act, including but not limited to:
(a) The catastrophic risk protection plan of insurance;
(b) The additional coverage plans of insurance as authorized under section 508(c) of the Act;
(c) Private insurance products authorized under section 508(h) or 523(d) of the Act and reinsured by FCIC; and
(d) Persons entering contracts or cooperative agreements under sections 506(l), 522(c), 522(d), or 524(a) of the Act.
§ 400.679 Criteria for ineligibility.
Except as otherwise provided, a person is ineligible to participate in any program administered under the authority of the Act if the person meets one or more of the following criteria:
(a) Has a delinquent debt:
(1) The existence and delinquency of the debt must be verifiable.
(2) The person has to be provided a meaningful opportunity to contest the debt.
(3) If the person contests the debt, such action does not delay or preclude:
(i) Effect of the determination of ineligibility;
(ii) Determination or notification of ineligibility in accordance with § 400.682;
(iii) Termination of the applicable crop insurance policies; or
(iv) Ineligible persons being reported in accordance with § 400.682 or the ineligible persons being recorded in the ITS.
(4) If the person is determined not to owe the debt, eligibility is reinstated retroactive to the date of the determination of ineligibility, any applicable policies will be reinstated, and any applicable indemnity, prevented planting or replant payment earned may be paid provided the person has continued to comply with the terms of the policy;
(b) Is an individual and has been convicted of a controlled substance violation according to § 400.680;
(c) Has been disqualified under section 515(h) of the Act.;
(d) Is an individual and is not a United States citizen, United States non-citizen national, or a qualified alien. Such individuals may not be recorded in the ITS; however, such individuals are ineligible under the provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. 1611;
(e) Has been suspended or debarred for committing a crime specified in 2 CFR part 180 or 2 CFR part 417, or 7 U.S.C. 2209j (Ineligibility determinations will not be stayed pending review. However, reversal of the determination of ineligibility will reinstate eligibility retroactive to the date of the determination of ineligibility, and any applicable policies will be reinstated);
(f) Has been debarred for knowingly doing business with a person debarred or suspended under 2 CFR part 180 or 2 CFR part 417 or 7 U.S.C. 2209j; or
(g) Has requested the Administrator, Risk Management Agency, for consideration to reinstate their eligibility in accordance with the applicable policy provisions and such request has been denied.
§ 400.680 Controlled substance.
(a) This section implements section 1764 of the Food Security Act of 1985 (Pub. L. 99-198) and Chapter 13 of Title 21 requiring the denial of Federal Benefits, including crop insurance, to individuals convicted of controlled substance violations in accordance with paragraphs (b) and (c) of this section.
(b) Notwithstanding any other provision of law, an individual will be ineligible to participate in any program authorized under the Act, as provided in § 400.683, if the individual is convicted under Federal or State law of planting, cultivating, growing, producing, harvesting, or storing a controlled substance in any crop year.
(c) Notwithstanding any other provision of law, an individual may, as determined by the court, be ineligible to participate in any program authorized under the Act, as provided in § 400.683, if the person is convicted under Federal or State law of possession of or trafficking in a controlled substance.
§ 400.681 Written payment agreement.
(a) Written payment agreements shall:
(1) Require scheduled installment payments that will allow for full repayment of the debt within the time frame allotted in paragraph (a)(2) of this section;
(2) Not exceed two years in duration; and
(3) Not be modified, replaced, or consolidated after it has been executed in accordance with paragraph (b) of this section.
(b) To avoid being determined to be ineligible through the execution of a written payment agreement:
(1) For a debt arising from any unpaid premium, administrative fees, or catastrophic risk protection fees:
(i) Only one written payment agreement is permitted per termination date. A written payment agreement may cover multiple crops provided they all have the same termination date; and
(ii) The written payment agreement must be signed by both parties, the debtor and the insurance provider or FCIC, as applicable, on or before the termination date specified in the applicable policy to prevent an ineligible determination for a delinquent debt.
(2) For all other debts, the written payment agreement must be signed by both parties, the debtor and the insurance provider or FCIC, as applicable, on or before the due date specified in the notice to the person of the amount due to prevent an ineligible determination for a delinquent debt.
§ 400.682 Determination and notification.
(a) The insurance provider must send a written notice of the debt to the person, including the time frame in which the debt must be paid, and provide the person with a meaningful opportunity to contest the amount or existence of the debt. Once a debtor has filed bankruptcy and the insurance provider is formally informed of such through the court or the debtor, no request for payment of the debt can be made, unless approved in writing by the Office of General Counsel. The debtor may be notified of the amount of debt and ineligibility for crop insurance.
(1) The insurance provider shall evaluate the person’s response, if any, and determine if the debt is owed and delinquent.
(2) Upon request by FCIC, the insurance provider shall submit all documentation related to the debt to FCIC.
(b) If an insurance provider or any other person has evidence that a person meets criteria set forth in § 400.679(a), (b), (c), (e) or (f), they must immediately notify FCIC.
(c) After the insurance provider determines a person has met one or more of the criteria in § 400.679 and notifies FCIC, FCIC will issue and mail a Notice of Ineligibility to the person’s last known address and to the insurance provider. Notices sent to such address will be conclusively presumed to have been received by that person.
(d) The Notice of Ineligibility will state the criteria upon which the determination of ineligibility has been based, a brief statement of the facts to support the determination, the time period of ineligibility, and the right to appeal the determination to be placed on the ITS in accordance with paragraph (e) of this section.
(e) Within 30 days of receiving the Notice of Ineligibility, the ineligible person may appeal FCIC’s determination to be placed on ITS to the National Appeals Division in accordance with 7 CFR part 11. The existence and amount of the debt is determined by the insurance provider, not FCIC; therefore, those determinations are not appealable to the National Appeals Division.
(f) If the person appeals FCIC’s determination to be placed on ITS to the National Appeals Division, the insurance provider will be notified and provided with an opportunity to participate in the proceeding, if permitted by 7 CFR part 11.
(g) No later than 60 days after the termination date, a missed payment date of a previously executed written payment agreement, or in the case of an overpaid indemnity or any amount that became due after the termination date, the due date specified in a notice to the person of an amount due, as applicable, such ineligible person may request consideration for reinstatement from the Administrator, Risk Management Agency, in accordance with section 2 of the Common Crop Insurance Policy Basic Provisions (7 CFR 457.8).
§ 400.683 Period of ineligibility.
(a) The beginning of the period of ineligibility will be:
(1) For ineligibility as a result of a delinquent debt, beginning on the date stated in the applicable policy;
(2) For ineligibility as a result of a conviction under Federal or State law of:
(i) Planting, cultivating, growing, producing, harvesting, or storing a controlled substance, the beginning of the crop year in which the individual is convicted; or
(ii) Possession of or trafficking in a controlled substance, the beginning of the crop year in which the individual is convicted, unless determined otherwise by the court.
(3) For ineligibility as a result of a disqualification, debarment, or suspension under 515(h) of the Act, 2 CFR part 180, 2 CFR part 417, the date the person was disqualified, debarred, or suspended by debarring official, Administrative Law Judge, or such other person authorized to take such action; and
(4) For debarment under 7 U.S.C. 2209j, the beginning of the crop year in which the person is convicted.
(b) The duration of the period of ineligibility will be:
(1) For ineligibility as a result of a delinquent debt, until the debt has been paid in full discharged in bankruptcy, or the person has executed a written payment agreement.
(2) For ineligibility as a result of a conviction under Federal or State law of:
(i) Planting, cultivating, growing, producing, harvesting, or storing a controlled substance, four crop years succeeding the crop year in which the person was convicted; and
(ii) Possession of a controlled substance or trafficking in a controlled substance, in addition to the time of ineligibility imposed in paragraph (b)(2)(i) of this section, until the period of time imposed by a court has expired.
(3) For ineligibility as a result of a disqualification, debarment, or suspension under section 515(h) of the Act, or 2 CFR part 180 and 2 CFR part 417 until the period of time of disqualification, debarment, or suspension, as applicable, has expired.
(4) For ineligibility as a result of not being a United States citizen, United States non-citizen national, or a qualified alien, until the date such individual becomes a United States citizen, United States non-citizen national, or a qualified alien.
(5) For ineligibility as a result of a conviction falling under 7 U.S.C. 2209j, permanent unless otherwise determined by the Secretary of Agriculture for a period of not less than 10 years.
§ 400.684 Effect of ineligibility.
(a) The effect of ineligibility depends on the basis for the determination.
(1) Persons who are ineligible as a result of a delinquent debt are ineligible for crop insurance authorized under the Act for a certain time period in accordance with § 400.683. Filing for bankruptcy does not make the person eligible for crop insurance or preclude the ineligible person from being placed on the ITS in accordance with § 400.684(b)(1).
(2) Persons who are ineligible as a result of a suspension or debarment are precluded from:
(i) Participating in all programs authorized under the Act, including but not limited to:
(A) Obtaining crop insurance;
(B) Acting as an agent, loss adjuster, insurance provider, or affiliate, as defined in the Standard Reinsurance Agreement or Livestock Price Reinsurance Agreement, or successor agreements;
(C) Entering into any contracts with FCIC under sections 506(l) and section 522(c) of the Act; and
(D) Entering into any cooperative agreements or partnerships under sections 506(l), 522(d) and 524(a) of the Act; and
(ii) Participating in any other covered transaction as specified in 2 CFR part 180 and 2 CFR part 417.
(3) Persons who are ineligible because of disqualification under section 515(h) of the Act are precluded from participating in all programs authorized under the Act indicated in paragraph (a)(2)(i) of this section, and those listed in section 515(h)(3)(B) and (C) of the Act.
(4) Individuals who are ineligible because of a conviction of a violation of the controlled substance provisions or are not a United States citizen, United States non-citizen national, or a qualified alien are precluded from participating in any program authorized under the Act indicated in paragraph (a)(2)(i) of this section.
(5) Persons who are ineligible as a result of a conviction falling under 7 U.S.C. 2209j, are precluded from participating in any program offered by USDA.
(b) Once a person has been determined to be ineligible:
(1) The ineligible person will be placed on the ITS and may be reported to other government agencies, unless the ineligible person is an individual and the sole reason for ineligibility is because the individual is not a United States citizen, United States non-citizen national, or qualified alien.
(2) If the ineligible person is an individual:
(i) All crop insurance policies in which the ineligible person is the sole insured will terminate if the person is ineligible for any reason other than a controlled substance violation, or be void if the person is ineligible due to conviction of a controlled substance violation according to § 400.680, and the person will remain ineligible for crop insurance for the applicable period specified in § 400.683; and
(ii) The ineligible person must be reported on all policies in which the ineligible person has a substantial beneficial interest in the applicant or insured, and the insured share under such policy will be reduced commensurate with the ineligible person’s substantial beneficial interest in the applicant or insured for as long as the ineligible person remains ineligible in accordance with § 400.683.
(3) If the ineligible person is a general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture and is ineligible as a result of:
(i) A delinquent debt:
(A) All partners or members of the ineligible general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture will be ineligible;
(B) The ineligible general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture and all partners and members of the ineligible general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture will remain ineligible for crop insurance for the applicable period specified in § 400.683;
(C) All crop insurance policies in which the ineligible general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture is the sole insured will terminate;
(D) All crop insurance policies in which the ineligible partner or member is the sole insured will terminate; and
(E) The ineligible general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture and all ineligible partners or members must be reported on any other policy in which they have a substantial beneficial interest in the applicant or insured, and the insured share under such policies will be reduced commensurate with the ineligible general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture or the ineligible partners’ or members’ substantial beneficial interest in the applicant or insured for as long as they remain ineligible in accordance with § 400.683; or
(ii) Meeting the criteria specified in § 400.679(c), (e) or (f):
(A) All crop insurance policies in which the ineligible general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture is the sole insured will terminate, and the ineligible general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture will remain ineligible for crop insurance for the applicable period specified in § 400.683; and
(B) The ineligible general partnership, limited partnership, limited liability partnership, limited liability company, or joint venture must be reported on any other policy in which it has a substantial beneficial interest in the applicant or insured, and the insured share under such policies will be reduced commensurate with the ineligible general partnership’s, limited partnership’s, limited liability partnership’s, limited liability company’s, or joint venture’s substantial beneficial interest in the applicant or insured for as long as it remains ineligible in accordance with § 400.683.
(4) If the ineligible person is an association, estate, trust, corporation, or other similar entity, and is ineligible as a result of:
(i) A delinquent debt:
(A) Any partners, members, shareholders, administrators, executors, trustees, or grantors may be individually ineligible if the delinquent debt occurred as a result of their actions or inactions, as determined by the insurance provider or FCIC;
(B) All policies in which the ineligible association, estate, trust, corporation, or other similar entity is the sole insured will terminate, and it will remain ineligible for crop insurance for the applicable period specified in § 400.683.
(C) The ineligible association, estate, trust, corporation, or other similar entity must be reported on any other policy in which it has a substantial beneficial interest in the applicant or insured, and the insured share under such policies will be reduced commensurate with the ineligible entity’s substantial beneficial interest in the applicant or insured for as long as the person remains ineligible in accordance with § 400.683;
(D) All policies in which a partner, member, shareholder, administrator, executor, trustee, or grantor determined ineligible according to § 400.684(b)(4)(i)(A) is the sole insured will terminate, and the person will remain ineligible for crop insurance for the applicable period specified in § 400.683; and
(E) The ineligible partner, member, shareholder, administrator, executor, trustee, or grantor must be reported on any other policy in which they have a substantial beneficial interest in the applicant or insured, and the insured share under such policies will be reduced commensurate with the ineligible person’s substantial beneficial interest in the applicant or insured for as long as the person remains ineligible in accordance with § 400.683; or
(ii) Meeting the criteria specified in § 400.679(c), (e) or (f):
(A) All crop insurance policies in which the ineligible association, estate, trust, corporation, or other similar entity is the sole insured will terminate, and the ineligible association, estate, trust, corporation, or other similar entity will remain ineligible for crop insurance for the applicable period specified in § 400.683; and
(B) The ineligible association, estate, trust, corporation, or other similar entity must be reported on any other policy in which it has a substantial beneficial interest in the applicant or insured, and the insured share under such policies will be reduced commensurate with the ineligible association, estate, trust, corporation, or other similar entity’s substantial beneficial interest in the applicant or insured for as long as it remains ineligible in accordance with § 400.683.
(5) If an applicant or insured is a corporation, partnership, joint venture, trust, corporation, limited liability company, limited liability partnership, limited partnership, or other similar entity that was created to conceal the interest of an ineligible person or to evade the ineligibility determination of a person with a substantial beneficial interest in the applicant or insured, the policy will be void.
(6) All crop insurance policies in which the ineligible person is insured as landlord/tenant will terminate on the next termination date. The other person(s) on such policy may submit a new application for crop insurance coverage on or before the applicable sales closing date to obtain insurance coverage for the crop, if they are otherwise eligible for such coverage.
(c) The spouse and minor child of an individual insured is considered to be the same as the individual for purposes of this subpart and subject to the same ineligibility, except when:
(1) The individual is ineligible due to a conviction of a controlled substance violation in accordance with § 400.680;
(2) The individual is ineligible as a result of a felony conviction for knowingly defrauding the United States in connection with any program administered by USDA;
(3) The individual is ineligible because they are not a United States citizen, United States non-citizen national, or a qualified alien;
(4) The individual is ineligible as a result of a disqualification, debarment, or suspension;
(5) The spouse can prove they are legally separated or otherwise legally separate under the applicable State dissolution of marriage laws; or
(6) The minor child has a separate legal interest in such person or is engaged in a separate farming operation from the individual.
(d) Notwithstanding § 400.684(f), when a policy is voided in accordance with this subpart:
(1) No indemnities or payments will be paid for the voided policy;
(2) Any indemnities or payments already made for the voided policy will be declared overpayments and must be repaid in full; and
(3) No premiums will be due and any premium paid will be refunded except when the policy is void due to a conviction of a controlled substance violation according to § 400.680, in which case the insured will still be required to pay 20 percent of the premium the insured would otherwise be required to pay to offset costs in the servicing of the policy.
(e) When the insured share of a policy is reduced in accordance with this subpart:
(1) Any indemnities or payments commensurate with the share reduced already made will be declared overpayments and must be repaid in full; and
(2) Any premiums paid by the insured commensurate with the share reduced will be refunded.
(f) Any insurance written by an insurance provider to any person who is ineligible under the provisions of this subpart is not eligible for reinsurance by FCIC. All premium subsidies, expenses, or other payments made by FCIC for insurance written for any person who is ineligible under the provisions of this subpart must be immediately refunded to FCIC. However, with regard to policies that would be void due to a conviction of a controlled substance violation according to § 400.680, if the insurance provider follows the procedures of FCIC and the requirements of the regulations, reinsurance will continue to be provided under the reinsurance agreement on the policy unless it is shown that the agent or insurance provider had knowledge of the facts which would indicate ineligibility on the part of the insured and failed to act on that knowledge.
§ 400.685 Criteria for regaining eligibility.
After the period of ineligibility as specified in § 400.683 has ended, the ineligible person is eligible to participate in programs authorized under the Act, provided the person meets all eligibility requirements.
(a) After a person regains eligibility for crop insurance when their policy was terminated or voided, the person must submit a new application for crop insurance coverage on or before the applicable sales closing date to obtain insurance coverage for the crop. If the date of regaining eligibility occurs after the applicable sales closing date for the crop, the person may not participate until the following year unless that crop policy allows for applications to be accepted after the sales closing date.
(b) If a person who was determined ineligible according to this subpart is subsequently determined to be an eligible person for crop insurance through reinstatement, mediation, arbitration, appeal, or judicial review, such person’s policies will be reinstated effective at the beginning of the crop year for which the producer was determined ineligible, and such person will be entitled to all applicable benefits under such policies, provided the person meets all eligibility requirements and complies with the terms of the policy.
§ 400.686 Administration and maintenance.
(a) Ineligible producer data will be maintained in a system of records established and maintained by the Risk Management Agency in accordance with the Privacy Act (5 U.S.C. 552a).
(1) The ITS contains identifying information of the ineligible person, including but not limited to, name, address, telephone number, SSN or EIN, reason for ineligibility, and time period of ineligibility.
(2) Information in the ITS may be used by an authorized person. The information may be furnished to other users as may be appropriate or required by law or regulation, including but not limited to, FCIC contracted agencies, other government agencies, credit reporting agencies, and collection agencies, and in response to judicial orders in the course of litigation. The individual information may be made available in the form of various reports and notices.
(3) Supporting documentation regarding the determination of ineligibility and reinstatement or regaining of eligibility will be maintained by FCIC, or its contractors, insurance providers, Federal agencies, and State agencies. This documentation will be maintained and retained consistent with the electronic information contained within the ITS.
(b) Information may be entered into the ITS by FCIC employees or contractors, or insurance providers.
(c) All persons applying for crop insurance policies or with an existing policy, issued or reinsured by FCIC, will be subject to validation of their eligibility status against the ITS. Applications, transfers, or benefits approved and accepted are considered approved or accepted subject to review of eligibility status in accordance with this subpart.
(d) Insurance providers, partners, cooperators, and contractors must check to ensure that the persons with whom they are doing business are eligible to participate in the programs authorized under the Act. Insurance providers, partners, cooperators, and contractors must check the ITS but the ITS may not include all persons ineligible to receive government benefits, such as persons debarred, disqualified or suspended from receiving government benefits by an agency other than FCIC. Insurance providers, partners, cooperators, and contractors must check other sources that contain ineligible persons, including but not limited to EPLS, or successor list, provide data on persons ineligible to participate in programs authorized under the Act.
Subpart V – Submission of Policies, Provisions of Policies, Rates of Premium, and Non-Reinsured Supplemental Policies
§ 400.700 Basis, purpose, and applicability.
This subpart establishes guidelines, the approval process, and responsibilities of FCIC and the applicant for policies, provisions of policies, and rates of premium submitted to the Board as authorized under section 508(h) of the Act. It also provides procedures for reimbursement of research and development costs and maintenance costs for concept proposals and approved 508(h) submissions. Guidelines for submitting concept proposals and the standards for approval and advance payments are provided in this subpart. This subpart also provides guidelines and reference to procedures for submitting index-based weather plans of insurance as authorized under section 523(i) of the Act. The procedures for submitting non-reinsured supplemental policies in accordance with the Standard Reinsurance Agreement (SRA) are also contained within.
§ 400.701 Definitions.
508(h) submission. A policy, plan of insurance, provision of a policy or plan of insurance, or rates of premium provided by an applicant to FCIC in accordance with the requirements of § 400.705.508(h) submissions as referenced in this subpart do not include concept proposals, index-based weather plans of insurance, or non-reinsured supplemental policies.
Act. Subtitle A of the Federal Crop Insurance Act, as amended (7 U.S.C. 1501-1524).
Actuarial documents. The information for the crop or insurance year that is available for public inspection in an agent’s office and published on RMA’s Web site, and that shows available insurance policies, coverage levels, information needed to determine amounts of insurance and guarantees, prices, premium rates, premium adjustment percentages, practices, particular types or varieties of the insurable crop or agricultural commodity, insurable acreage, and other related information regarding insurance in the county or state.
Actuarially appropriate. A term used to describe premium rates when such rates are expected to cover anticipated losses and establish a reasonable reserve based on valid reasoning, an examination of available risk data, or knowledge or experience of the expected value of future costs associated with the risk to be covered. This will be expressed by a combination of data including, but not limited to liability, premium, indemnity, and loss ratios based on actual data or simulations reflecting the risks covered by the policy.
Administrative and operating (A&O) subsidy. The subsidy for the administrative and operating expenses authorized by the Act and paid by FCIC on behalf of the producer to the approved insurance provider. Loss adjustment expense reimbursement paid by FCIC for catastrophic risk protection (CAT) eligible crop insurance contracts is not considered as A&O subsidy.
Advance payment. A portion, up to 50 percent, of the estimated research and development costs, that may be approved by the Board under section 522(b) of the Act for an approved concept proposal. Upon request of the submitter the Board may at its sole discretion provide up to an additional 25 percent advance payment of the estimated research and development costs after the applicant begins research and development activities if:
(1) The concept proposal will provide coverage for a region or crop that is underserved, including specialty crops; and
(2) The submitter is making satisfactory progress towards developing a viable and marketable 508(h) submission.
Agent. An individual licensed by the State in which an eligible crop insurance contract is sold and serviced for the reinsurance year, and who is employed by, or under contract with, the approved insurance provider, or its designee, to sell and service such eligible crop insurance contracts.
Applicant. Any person or entity that submits to the Board for approval a 508(h) submission under section 508(h) of the Act, a concept proposal under section 522 of the Act, or an index-based weather plan of insurance under section 523(i) of the Act, who must include the AIP that has committed to be involved in the development and submission process and to market, sell and service the policy or plan of insurance.
Approved insurance provider (AIP). A legal entity, including the Company, which has entered into a reinsurance agreement with FCIC for the applicable reinsurance year.
Approved procedures. The applicable handbooks, manuals, memoranda, bulletins or other directives issued by RMA or the Board.
Board. The Board of Directors of FCIC.
Commodity. Has the same meaning as section 518 of the Act.
Complete. A 508(h) submission, concept proposal, or index-based weather plan of insurance determined by RMA and the Board to contain all required documentation in accordance with § 400.705 and is of sufficient quality.
Complexity. Consideration of factors such as originality of policy materials, underwriting methods, actuarial rating methodology, and the pricing methodology used in design, construction and all other steps required for the full development of a policy or plan of insurance.
Concept proposal. A written proposal for a prospective 508(h) submission, submitted under section 522(b) of the Act for advance payment of research and development costs, and containing all the information required in this regulation and the Procedures Handbook 17030 – Approved Procedures for Submission of Concept Proposals Seeking Advance Payment of Research and Development Costs, which can be found on the RMA Web site at www.rma.usda.gov, such that the Board is able to determine that, if approved, will be developed into a viable and marketable policy consistent with Board approved procedures, these regulations, and section 508(h) of the Act.
Delivery system. The components or parties that make the policy or plan of insurance available to the public for sale.
Development. The process of composing documentation and procedures, pricing and rating methodologies, administrative and operating procedures, systems and software, supporting materials, and documentation necessary to create and implement a 508(h) submission.
Endorsement. A document that amends or revises an insurance policy reinsured under the Act in a manner that changes existing, or provides additional, coverage provided by such policy.
Expert reviewer. Independent persons contracted by the Board who meet the criteria for underwriters or actuaries that are selected by the Board to review a concept proposal, 508(h) submission, or index-based weather plan of insurance and provide advice to the Board regarding the results of their review.
FCIC. The Federal Crop Insurance Corporation, a wholly owned government corporation within USDA, whose programs are administered by RMA.
Index-based weather plan of insurance. A risk management product in which indemnities are based on a defined weather parameter exceeding or failing to meet a given threshold during a specified time period. The weather index is a proxy to measure expected loss of production when the defined weather parameter does not meet the threshold.
Limited resource producer. Has the same meaning as the term defined by USDA at: www.lrftool.sc.egov.usda.gov/LRP_Definition.aspx or a successor Web site.
Livestock commodity. Has the same meaning as the term in section 523(i) of the Act.
Maintenance. For the purposes of this subpart only, the process of continual support, revision or improvement, as needed, for an approved 508(h) submission, including the periodic review of premium rates and prices, updating or modifying the rating or pricing methodologies, updating or modifying policy terms and conditions, adding a new commodity under similar policy terms and conditions with similar rating and pricing methodology, or expanding a plan or policy to additional states and counties, and any other actions necessary to provide adequate, reasonable and meaningful protection for producers, ensure actuarial soundness, or to respond to statutory or regulatory changes. A concept proposal that is similar to a previously approved 508(h) submission will be considered maintenance for the similar approved 508(h) submission if submitted by the same person.
Maintenance costs. Specific expenses associated with the maintenance of an approved 508(h) submission as authorized by § 400.712.
Maintenance period. A period of time that begins on the date the Board approves the 508(h) submission and ends on the date that is not more than four reinsurance years after such approval.
Manager. The Manager of FCIC.
Marketable. A determination by the Board, based on a detailed, written marketability assessment provided in accordance with § 400.705(e), that demonstrates a sufficient number of producers will purchase the product to justify the resources and expenses required to offer the product for sale and maintain the product for subsequent years.
Multiple peril crop insurance (MPCI). Policies reinsured by FCIC that provide protection against multiple causes of loss that adversely affect production or revenue, such as to natural disasters, such as hail, drought, and floods.
National Agricultural Statistics Service (NASS). An agency within USDA, or its successor agency that collects and analyzes data collected from producers and other sources.
Non-reinsured supplemental policy (NRS). A policy, endorsement, or other risk management tool not reinsured by FCIC under the Act, that offers additional coverage, other than for loss related to hail.
Non-significant changes. Minor changes to the policy or plan of insurance, such as technical corrections, that do not affect the rating or pricing methodologies, the amount of subsidy owed, the amount or type of coverage, FCIC’s reinsurance risk, or any other condition that does not affect liability or the amount of loss to be paid under the policy. Revisions to approved plans required by statutory or regulatory changes are included in this category. Changes to the policy that involve concepts that have been previously sent for expert review are also included in this category.
Plan of insurance. A class of policies, such as yield, revenue, or area based that offers a specific type of coverage to one or more agricultural commodities.
Policy. Has the same meaning as the term in section 1 of the Basic Provisions (7 CFR 457.8).
Rate of premium. The dollar amount per insured unit, or percentage rate per dollar of liability, that is needed to pay anticipated losses and provide a reasonable reserve.
Reinsurance year. The term beginning July 1 and ending on June 30 of the following year and, for reference purposes, identified by reference to the year containing June.
Related material. The actuarial documents for the insured commodity and any underwriting or loss adjustment manuals, handbooks, forms, instructions or other information needed to administer the policy.
Research. For the purposes of development, the gathering of information related to: Producer needs and interests for risk management; the marketability of the policy or plan of insurance; appropriate policy terms, premium rates, price elections, administrative and operating procedures, supporting materials, documentation, and the systems and software necessary to implement a policy or plan of insurance. The gathering of information to determine whether it is feasible to expand a policy or plan of insurance to a new area or to cover a new commodity under the same policy terms and conditions, price, and premium rates is not considered research.
Research and development costs. Specific expenses incurred and directly related to the research and development activities of a 508(h) submission as authorized in § 400.712.
Risk Management Agency (RMA). An agency within USDA that is authorized to administer the crop insurance program on behalf of FCIC.
Risk subsidy. The portion of the premium paid by FCIC on behalf of the insured.
Sales closing date. A date contained in the Special Provisions by which an application must be filed and the last date by which the insured may change the crop insurance coverage for a crop year.
Secretary. The Secretary of the United States Department of Agriculture.
Significant change. Any change to the policy or plan of insurance that may affect the rating and pricing methodologies, the amount of subsidy owed, the amount of coverage, the interests of producers, FCIC’s reinsurance risk, or any condition that may affect liability or the amount of loss to be paid under the policy.
Special Provisions. Has the same meaning as the term in section 1 of the Basic Provisions (7 CFR 457.8).
Specialty crops. Fruits and vegetables, tree nuts, dried fruits, and horticulture and nursery crops (including floriculture).
Socially disadvantaged producer. Has the same meaning as section 2501(E) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279(e)).
Standard Reinsurance Agreement (SRA). The reinsurance agreement between FCIC and the approved insurance provider, under which the approved insurance provider is authorized to sell and service eligible crop insurance contracts. For the purposes of this subpart, all references to the SRA will also include any other reinsurance agreements entered into with FCIC, including the Livestock Price Reinsurance Agreement.
Submitter. Same meaning as applicant.
Sufficient quality. A determination made by RMA and the Board that the material presented is clearly written in plain language in accordance with the Plain Writing Act of 2010 (5 U.S.C. 301), unambiguous, and is supported by detailed analysis and data so that expert reviewers, RMA and the Board can understand, comprehend and make calculations, draw substantiated conclusions or results to determine whether the 508(h) submission, concept proposal, or index-based weather plan of insurance meets the standards required for approval.
Targeted producer. Producers who are considered small, socially disadvantaged, beginning and limited resource or other specific aspects designated by FCIC for review.
USDA. The United States Department of Agriculture.
User fees. Fees, approved by the Board, that can be charged to approved insurance provider for use of a policy or plan of insurance once the period for maintenance has expired that only covers the expected maintenance costs to be incurred by the submitter.
Viable. A determination by the Board that the concept proposal, index-based weather plan of insurance, or 508(h) submission is or can be developed into a policy or plan of insurance that can be implemented by the delivery system with actuarially appropriate rates in accordance with Board procedures.
§ 400.702 Confidentiality and duration of confidentiality.
(a) Pursuant to section 508(h)(4)(A) of the Act, prior to approval by the Board, any 508(h) submission submitted to the Board under section 508(h) of the Act, concept proposal submitted under section 522 of the Act, or index-based weather plan of insurance submitted under section 523(i) of the Act, including any information generated from the 508(h) submission, concept proposal, or index-based weather plan of insurance, will be considered confidential commercial or financial information for purposes of 5 U.S.C. 552(b)(4) and will not be released by FCIC to the public, unless the applicant authorizes such release in writing.
(b) Once the Board approves a 508(h) submission or an index-based weather plan of insurance, information provided with the 508(h) submission (including information from the concept proposal) or the index-based weather plan of insurance, or generated in the approval process, may be released to the public, as applicable, including any mathematical modeling and data, unless it remains confidential business information under 5 U.S.C. 552(b)(4). While the expert reviews are releasable once the 508(h) submission or an index-based weather plan of insurance has been approved, the names of the expert reviewers may be redacted to prevent any undue pressure on the expert reviewers.
(c) Any 508(h) submission, concept proposal, or index-based weather plan of insurance disapproved by the Board will remain confidential commercial or financial information in accordance with 5 U.S.C. 552(b)(4) (no information related to such 508(h) submission, concept proposal, or index-based weather plan of insurance will be released by FCIC unless authorized in writing by the applicant).
(d) All 508(h) submissions, concept proposals, and index-based weather plans of insurance, will be kept confidential until approved by the Board and will be given an identification number for tracking purposes, unless the applicant advises otherwise.
§ 400.703 Timing and format.
(a) A 508(h) submission, concept proposal, or index-based weather plan of insurance may only be provided to FCIC during the first five business days in January, April, July, and October.
(b) A 508(h) submission, concept proposal, or index-based weather plan of insurance must be provided as an electronic file to FCIC in Microsoft Office compatible format, sent to either the address in paragraph (d)(1) or (d)(2) of this section by the due date in paragraph (a) of this section. The electronic file must contain a document with a detailed index that, in sequential order, references the location of the required information that may either be contained within the document or in a separate file. The detailed index must clearly identify each required section and include the page number if the information is contained in the document or file name if the information is contained in a separate file; and
(c) Any 508(h) submission, concept proposal, or index-based weather plan of insurance not provided within the first 5 business days of a month stated in paragraph (a) of this section will be considered to have been provided in the next month stated in paragraph (a). For example, if an applicant provides a 508(h) submission on January 10, it will be considered to have been received on April 1.
(d) Any 508(h) submission, concept proposal, or index-based weather plan of insurance must be provided to one of the following addresses, but not both:
(1) By email to the Deputy Administrator for Product Management (or successor) at [email protected]; or
(2) By mail on a removable storage device such as a compact disk or Universal Serial Bus (USB) drive, sent to the Deputy Administrator for Product Management (or any successor position), USDA/Risk Management Agency, 2312 East Bannister Road, Kansas City, MO 64131-3011.
(e) In addition to the requirements in paragraph (a) of this section, a 508(h) submission must be received not later than 240 days prior to the earliest proposed sales closing date to be considered for sale in the requested crop year.
(f) To be offered for sale in a crop year, there must be at least sixty days between the date the policy is ready to be made available for sale and the earliest sales closing date, unless this requirement is expressly waived by the Board.
(g) Notwithstanding, paragraph (f) of this section, the Board, or RMA if authorized by the Board, shall determine when sales can begin for a 508(h) submission approved by the Board after consideration of the analysis provided by the applicant AIP of the impact of the proposed implementation date on the delivery system.
§ 400.704 Covered by this subpart.
(a) An applicant may submit to the Board, in accordance with § 400.705, a 508(h) submission that is:
(1) A policy or plan of insurance not currently reinsured by FCIC;
(2) One or more proposed revisions to a policy or plan of insurance authorized under the Act; or
(3) Rates of premium for any policy or plan of insurance authorized under the Act.
(b) An applicant must submit to the Board, any significant change to a previously approved 508(h) submission, including requests for expansion, prior to making the change in accordance with § 400.705.
(c) An applicant may submit a concept proposal to the Board prior to developing a full 508(h) submission, in accordance with this subpart and the Procedures Handbook 17030 – Approved Procedures for Submission of Concept Proposals Seeking Advance Payment of Research and Development Costs, which can be found on the RMA Web site at www.rma.usda.gov.
(d) An applicant who is an approved insurance provider may submit an index-based weather plan of insurance for consideration as a pilot program in accordance with this subpart and the Procedures Handbook 17050 – Approved Procedures for Submission of Index-based Weather Plans of Insurance, which can be found on the RMA Web site at www.rma.usda.gov.
(e) An applicant must submit a non-reinsured supplemental policy or endorsement to RMA in accordance with § 400.713.
§ 400.705 Contents for new and changed 508(h) submissions, concept proposals, and index-based weather plans of insurance.
(a) A complete 508(h) submission must contain the following material, as applicable, submitted in accordance with § 400.703(b). A complete 508(h) submission must be a viable and marketable insurance product that protects the interests of producers, is actuarially appropriate and ensures program integrity. The material must contain adequate information as required in this section, that is presented clearly to ensure the Board and RMA can determine whether RMA and the delivery system have the resources to implement, administer, and deliver the 508(h) submission effectively and efficiently. Calculations, procedures and methodologies must be consistent throughout the submission and appropriate for the commodity and the risks covered.
(b) The first section will contain general information numbered as follows (1, 2, 3, etc.), including, as applicable:
(1) The applicant’s name(s), address or primary business location, phone number, and email address;
(2) The type of 508(h) submission (see § 400.704) and a notation of whether or not the 508(h) submission was approved by the Board as a concept proposal;
(3) A statement of whether the applicant is requesting:
(i) Reinsurance;
(ii) Risk subsidy;
(iii) A&O subsidy;
(iv) Reimbursement for research and development costs, as applicable and, if the 508(h) submission was previously submitted as a concept proposal, the amount of the advance payment for expected research and development costs; or
(v) Reimbursement for expected maintenance costs, if applicable;
(4) The proposed agricultural commodities to be covered, including types, varieties, and practices covered by the 508(h) submission;
(5) The crop or insurance year and reinsurance year in which the 508(h) submission is proposed to be available for purchase by producers;
(6) The proposed sales closing date, if applicable, or the sales window or the earliest date the applicant expects to release the product to the public;
(7) The proposed states and counties where the plan of insurance is proposed to be offered;
(8) Any known or anticipated future expansion plans;
(9) Identification, including names, addresses, telephone numbers, and email addresses, of the person(s) responsible for:
(i) Addressing questions regarding the policy, underwriting rules, loss adjustment procedures, rate and price methodologies, data processing and record-keeping requirements, and any other questions that may arise in implementing or administering the program if it is approved; and
(ii) Annual reviews to ensure compliance with all requirements of the Act, this subpart, and any agreements executed between the applicant and FCIC;
(10) A statement of whether the 508(h) submission will be filed with the applicable office responsible for regulating insurance in each state proposed for insurance coverage, and if not, reasons why the 508(h) submission will not be filed for review; and
(11) A statement of whether the submitter wants the 508(h) submission to remain confidential.
(c) The second section must contain the benefits of the plan, including, as applicable, a summary that includes:
(1) How the 508(h) submission offers coverage or other benefits not currently available from existing public or private programs;
(2) How the 508(h) submission meets public policy goals and objectives consistent with the Act and other laws, as well as policy goals supported by USDA and the Federal Government; and
(3) A detailed description of the coverage provided by the 508(h) submission and its applicability to all producers, including targeted producers.
(d) Except as provided in this section, the third section must contain the policy, that is clearly written in plain language in accordance with the Plain Writing Act of 2010 (5 U.S.C. 301) such that producers will be able to understand the coverage being offered. The policy language permits actuaries to form a clear understanding of the payment contingencies for which they will set rates. The policy language does not encourage an excessive number of disputes or legal actions because of misinterpretations.
(1) If the 508(h) submission involves a new insurance policy or plan of insurance:
(i) All applicable policy provisions; and
(ii) A list of any additional coverage that may be elected by the insured in conjunction with the 508(h) submission such as applicable endorsements (include a description of the coverage and how such coverage may be obtained).
(2) If the 508(h) submission involves a change to a previously approved policy, plan of insurance, or rates of premium, the proposed revisions, rationale for each change, data and analysis supporting each change, the impact of each change, and the impact of all changes in aggregate.
(e) The fourth section must contain the following:
(1) Potential impacts the 508(h) submission may have on producers both where the new plan will and will not be available (include both positive and negative impacts) and if applicable, the reasons why the 508(h) submission is not being proposed for other areas producing the commodity;
(2) The amount of commodity (acres, head, board feet, etc.), the amount of production, and the value of each agricultural commodity proposed to be covered in each proposed county and state;
(3) A reasonable estimate of the expected number of potential buyers, liability and premium for each proposed county and state, total expected liability and premium by crop year based on the detailed assessment of producer interest, including a description of the number of producers involved in the development of the product, their level of participation, their type of participation, how many producers have provided data to assist the submitter in the development of the product, and a comparison with other similar products, including differences between the 508(h) submission and the similar products that may make participation different;
(4) If available, any insurance experience for each year and in each proposed county and state in which the policy has been previously offered for sale including an evaluation of the policy’s performance and, if data are available, a comparison with other similar insurance policies reinsured under the Act;
(5) Market research studies; “market research” is the systematic gathering and interpretation of information about individuals or organizations using statistical and analytical methods and techniques of the applied social sciences to gain insight or support decision making, and that must include:
(i) Focus group results (both positive and negative reactions) where a discussion is facilitated amongst a group of stakeholders in order to gain insight into their perceptions, opinions, beliefs, and attitudes towards a product, which must include the number of focus group sessions held, where they were held, when they were held, the number of attendees at each session, the attendees affiliation (producer, agent or other), and specific feedback from the attendees regarding levels of coverage the product should include to cover anticipated risks or perils encountered, the range of costs the producer is willing to pay, what coverages the producers are specifically looking for and an assessment of whether that coverage can be provided at the price the producers are willing to pay, what shortfall or gap in risk protection the product may address, tolerance of risk, perceptions of other similar products, policy features producers may desire, and quality issues;
(ii) Other evidence the proposed 508(h) submission will be positively received by producers, agents, lending institutions, and other interested parties, including correspondence from producers, agents, grower organizations, or other stakeholders expressing the need for a certain risk management strategy, desired coverage for perils faced, and willingness to provide critical information for developing a product;
(iii) An assessment of factors that could negatively or adversely affect the market and responses from a reasonable representative cross-section of producers or significant market segment to be affected by the policy or plan of insurance; and
(iv) For 508(h) submissions proposing products for specialty crops a consultation report must be provided that includes a summary and analysis of discussions with groups representing producers of those agricultural commodities in all major producing areas for commodities to be served or potentially impacted, either directly or indirectly, and the expected impact of the proposed 508(h) submission on the general marketing and production of the crop from both a regional and national perspective including evidence that the 508(h) submission will not create adverse market distortions; and
(6) A marketability assessment from the applicant AIP who is part of the applicant and from at least one other AIP. If a marketability assessment is not provided by a separate AIP who is not part of the applicant, the applicant must provide information regarding the names of the persons and AIPs contacted and the basis for their refusal to provide the marketability assessment. The marketability assessment will include:
(i) An assessment of whether producers will buy the proposed 508(h) submission;
(ii) An assessment of whether AIPs and their agents will want to sell and service the proposed 508(h) submission;
(iii) An assessment of the risks associated with the proposed 508(h) submission and its likely effect under the SRA;
(iv) Estimated computer system impacts and costs;
(v) Estimated administrative and training requirement and costs;
(vi) An analysis of the complexity of the product; and
(vii) What, if any, efficiency will be gained or potential effects on the workload of AIPs or others participating in the program.
(f) The fifth section must contain the information related to the underwriting and loss adjustment of the 508(h) submission, prepared in accordance with the RMA-14050 Risk Management Agency External Standards Handbook located at http://www.rma.usda.gov/handbooks/14000/index.html, including as applicable:
(1) An underwriting guide that includes:
(i) A table of contents and introduction;
(ii) A section containing abbreviations, acronyms, and definitions;
(iii) Relevant dates, including as applicable, sales closing, cancellation, termination, earliest planting, final planting, acreage reporting, premium billing, and end of insurance;
(iv) A section containing insurance contract information (insurability requirements; producer elections, Crop Provisions not applicable to Catastrophic Risk Protection, specific unit division guidelines, etc.);
(v) Detailed rules for determining insurance eligibility, including all producer reporting requirements;
(vi) All form standards needed for inspections and producer certifications, plus detailed instructions for their use and completion;
(vii) Step-by-step examples of the data and calculations needed to establish the insurance guarantee (liability) and premium per acre or other unit of measure, including worksheets that provide the calculations in sufficient detail and in the same order as presented in the policy to allow verification that the premiums charged for the coverage are consistent with policy provisions;
(viii) A section containing any special coverage information (i.e., replanting, tree replacement or rehabilitation, prevented planting, etc.), as applicable; and
(ix) A section containing all applicable reference material (i.e., minimum sample requirements, row width factors, etc.).
(2) Any statements to be included in the actuarial documents including any intended Special Provisions statements that may change any underlying policy terms or conditions; and
(3) The loss adjustment standards handbook for the policy or plan of insurance that includes:
(i) A table of contents and introduction;
(ii) A section containing abbreviations, acronyms, and definitions;
(iii) A section containing insurance contract information (insurability requirements; Crop Provisions not applicable to catastrophic risk protection; specific unit division guidelines, if applicable; notice of damage or loss provisions; quality adjustment provisions; etc.);
(iv) A detailed description of the causes of loss covered by the policy or plan of insurance and any causes of loss excluded;
(v) A section that thoroughly explains appraisal methods, if applicable;
(vi) Illustrative samples of all the applicable forms needed for insuring and adjusting losses in regards to the 508(h) submission in a format compatible with the Document and Supplemental Standards Handbook (FCIC 24040) located at http://www.rma.usda.gov/handbooks/24000/index.html, plus detailed instructions for their use and completion;
(vii) Instructions, step-by-step examples of calculations used to determine indemnity payments for all probable situations where a partial or total loss may occur, and loss adjustment procedures that are necessary to establish the amounts of coverage and loss;
(viii) A section containing any special coverage information (i.e., replanting, tree replacement or rehabilitation, prevented planting, etc.), as applicable; and
(ix) A section containing all applicable reference material (i.e., minimum sample requirements, row width factors, etc.).
(g) The sixth section must contain information related to prices and rates of premium, including, as applicable:
(1) A detailed description of the premium rating methodology proposed to be used and the basis for selection of the rating methodology;
(2) A list of all assumptions made in the premium rating and commodity pricing methodologies, and the basis for these assumptions;
(3) A detailed description of the pricing and rating methodologies, including:
(i) Supporting documentation needed for the rate methodology;
(ii) All mathematical formulas and equations;
(iii) Data and data sources used in determining rates and prices and a detailed assessment of the data (including availability, access, long term reliability, and the percentage of the total commercial production that the available data represents) and how it supports the proposed rates and prices;
(iv) A detailed explanation of how the rates account for each of the risks covered by the policy; and
(v) A detailed explanation of how the prices are applicable to the policy;
(4) An example of both a rate calculation and a price calculation;
(5) A discussion of the applicant’s objective evaluation of the accuracy of the data, the short and long term availability of the data, and how the data will be obtained (if the data source is confidential or proprietary explain the cost of obtaining the data); and
(6) An analysis of the results of simulations or modeling showing the performance of proposed rates and commodity prices, as applicable, based on one or more of the following (Such simulations must use all years of experience available to the applicant and must reflect both partial losses and total losses):
(i) A recalculation of total premium and losses compared to a similar or comparable insurance plan offered under the authority of the Act with modifications, as needed, to represent the components of the 508(h) submission;
(ii) A simulation that shows liability, premium, indemnity, and loss ratios for the proposed insurance product based on the probability distributions used to develop the rates and commodity prices, as applicable, including sensitivity tests that demonstrate price or yield extremes, and the impact of inappropriate assumptions; or
(iii) Any other comparable simulation that provides results indicating both aggregate and individual performance of the 508(h) submission including expected liability, premium, indemnity, and loss ratios for the proposed insurance product, under various scenarios depicting good and poor actuarial experience.
(h) The seventh section must contain the following:
(1) A statement certifying that the submitter and any approved insurance provider or its affiliates will not solicit or market the 508(h) submission until after all policy materials are released to the public by RMA, unless otherwise specified by the Board;
(2) An explanation of any provision of the policy not authorized under the Act and identification of the portion of the rate of premium due to these provisions; and
(3) Agent and loss adjuster training plans, except for 508(h) submissions proposing only changes to rates of premium to an existing policy.
(i) The eighth section must contain a statement from the submitter that, if the 508(h) submission is approved, the submitter will work with RMA and its computer programmers as needed to assure an effective and efficient implementation process. This section must also contain a description of any expected implementation or administration issues. The applicant must consult with RMA prior to providing the 508(h) submission to determine whether or not the 508(h) submission can be effectively and efficiently implemented and administered through the current information technology systems and that all reporting requirements, terminology, and dates conform to USDA standards and initiatives.
(1) If FCIC approves the 508(h) submission and determines that its information technology systems have the capacity to implement and administer the 508(h) submission, the applicant must provide a document detailing acceptable computer processing requirements consistent with those used by RMA as shown on the RMA Web site in the Appendix III/M-13 Handbook. This information details the acceptable computer processing requirements in a manner consistent with that used by RMA to facilitate the acceptance of producer applications and related data.
(2) Any computer systems, requirements, code and software must be consistent with that used by RMA and comply with the standards established in Appendix III/M-13 Handbook, or any successor document, of the SRA or other reinsurance agreement as specified by FCIC.
(3) These requirements are available from the USDA/Risk Management Agency, 2312 East Bannister Road, Kansas City, MO 64131-3011, or on RMA’s Web site at http://www.rma.usda.gov/data/m13, or a successor Web site.
(j) The ninth section submitted on separate pages and in accordance with § 400.712 and any applicable Board procedures must specify:
(1) The following amounts, which may be limited to the amount originally estimated in the submission, unless the applicant can justify the additional costs:
(i) For new products, the amount received for an advance payment, and a detailed estimate of the total amount of reimbursement for research and development costs; or
(ii) For products that are within the maintenance period, an estimate for maintenance costs for the year that the 508(h) submission will be effective; and
(2) A detailed estimate of maintenance costs for future years of the maintenance period and the basis that such maintenance costs will be incurred, including, but not limited to:
(i) Any anticipated expansion;
(ii) Anticipated changes or updates to policy materials;
(iii) The generation of premium rates;
(iv) The determination of prices; and
(v) Any other costs that the applicant anticipates will be requested for reimbursement of maintenance costs or expenses;
(k) The tenth section must contain executed (signed) certification statements in accordance with the following:
(1) “{Applicant’s Name} hereby claim that the basis and amounts set forth in this section and § 400.712 are correct and due and owing to {Applicant’s Name} by FCIC under the Federal Crop Insurance Act”; and
(2) “{Applicant Name} understands that, in addition to criminal fines and imprisonment, the 508(h) submission of false or fraudulent statements or claims may result in civil and administrative sanctions.”
(l) The contents required for concept proposals are found in the Procedures Handbook 17030 – Approved Procedures for Submission of Concept Proposals Seeking Advance Payment of Research and Development Costs. In addition, the proposal must provide a detailed description of why the concept provides insurance:
(1) In a significantly improved form;
(2) To a crop or region not traditionally served by the Federal crop insurance program; or
(3) In a form that addresses a recognized flaw or problem in the program;
(m) The contents required for index-based weather plans of insurance are found in the Procedures Handbook 17050 – Approved Procedures for Submission of Index-based Weather Plans of Insurance. In accordance with the Board approved procedures, the approved insurance provider that submits the index-based weather plan of insurance must provide evidence they have:
(1) Adequate experience in underwriting and administering policies or plans of insurance that are comparable to the proposed policy of plan of insurance;
(2) Sufficient assets or reinsurance to satisfy the underwriting obligations of the approved insurance provider, and a sufficient insurance credit rating from an appropriate credit rating bureau; and
(3) Applicable authority and approval from each State in which the approved insurance provider intends to sell the insurance product.
§ 400.706 Review.
(a) Prior to providing a 508(h) submission, concept proposal, or index-based weather plan of insurance to the Board, RMA will:
(1) Review the 508(h) submission, concept proposal, or index-based weather plan of insurance to determine if all required documentation is included in accordance with § 400.705;
(2) Review the 508(h) submission, concept proposal, or index-based weather plan of insurance to determine whether it is of sufficient quality to conduct a meaningful review such that the Board will be able to make an informed decision regarding approval or disapproval;
(3) In accordance with section 508(h)(1)(B) of the Act, at its sole discretion, determine if the policy or plan of insurance:
(i) Will likely result in a viable and marketable policy;
(ii) Will provide crop insurance coverage in a significantly improved form; and
(iii) Adequately protect the interests of producers.
(4) RMA may reject and return any 508(h) submission, concept proposal, or index based weather plan of insurance that:
(i) Is not complete;
(ii) Is unlikely to result in a viable and marketable policy;
(iii) Will not provide crop insurance coverage in a significantly improved form; and
(iv) Will not adequately protect the interests of producers.
(5) Except as provided in paragraph (a)(4) of this section, forward the 508(h) submission, concept proposal, or index-based weather plan of insurance, and the results of RMA’s initial review, to the Board for its determination of completeness and quality.
(b) Upon the Board’s receipt of a 508(h) submission, the Board will:
(1) Determine if the 508(h) submission is complete (the date the Board votes to contract with expert reviewers is the date the 508(h) submission is deemed to be complete for the start of the 120 day time-period for approval);
(2) Unless the 508(h) submission makes non-significant changes to a policy or plan of insurance, or involves policy provisions that have already undergone expert review, forward the complete 508(h) submission to at least five expert reviewers to review the 508(h) submission:
(i) Of the five expert reviewers, no more than one will be employed by the Federal Government, and none may be employed by any approved insurance provider or their representative; and
(ii) The expert reviewers will each provide their individual assessment of whether the 508(h) submission:
(A) Protects the interests of agricultural producers and taxpayers;
(B) Is actuarially appropriate;
(C) Follows recognized insurance principles;
(D) Meets the requirements of the Act;
(E) Does not contain excessive risks (risks may be considered excessive if they encourage adverse selection, moral hazard, or if premium rates cannot be adequately or appropriately determined);
(F) Follows sound, reasonable, and appropriate underwriting principles;
(G) Will provide a new kind of coverage that is likely to be viable and marketable;
(H) Will provide crop insurance coverage in a manner that addresses a clear and identifiable flaw or problem in an existing policy;
(I) Will provide a new or improved coverage for a commodity that previously had no available crop insurance, or has demonstrated a low level of participation or coverage level under existing coverage;
(J) May have a significant adverse impact on the crop insurance delivery system;
(K) The marketability assessment reasonably demonstrates the product would be viable and marketable (if the applicant cannot obtain a marketability assessment by another AIP, the Board shall presume that the submission is unmarketable);
(L) If applicable, contains a consultation report that provides evidence the 508(h) submission will not create adverse market distortions; and
(M) Meets any other criteria the Board may deem necessary;
(3) Return to the applicant any 508(h) submission the Board determines is not complete, along with an explanation of the reason for the determination and:
(i) With respect to 508(h) submissions developed from approved concept proposals, the provisions in § 400.712(c)(1) shall apply; and
(ii) Except for 508(h) submissions developed from concept proposals, if the 508(h) submission is resubmitted at a later date, it will be considered a new 508(h) submission solely for the purpose of determining the amount of time that the Board must take action; and
(4) For complete 508(h) submissions:
(i) Request review by RMA to provide its assessment of whether the 508(h) submission:
(A) Meets the criteria listed in subsections (b)(2)(ii)(A) through (M);
(B) Is consistent with USDA’s public policy goals;
(C) Does not increase or shift risk to any other FCIC reinsured policy;
(D) Can be implemented, administered, and delivered effectively and efficiently using RMA’s information technology and delivery systems; and
(E) Contains requested amounts of government reinsurance, risk subsidy, and administrative and operating subsidies that are reasonable and appropriate for the type of coverage provided by the policy; and
(ii) Seek review from the Office of the General Counsel (OGC) to determine if the 508(h) submission conforms to the requirements of the Act and all applicable Federal statutes and regulations.
(c) Upon the Board’s receipt of a concept proposal, the Board will:
(1) Determine whether the concept proposal is complete (the date the Board votes to contract with expert reviewers is the date the concept proposal is deemed to be a complete concept proposal for the start of the 120 day time-period for approval);
(2) If complete, forward the concept proposal to at least two expert reviewers with underwriting or actuarial experience to review the concept in accordance with section 522(b)(2) of the Act, this subpart, and Procedures Handbook 17030 – Approved Procedures for Submission of Concept Proposals Seeking Advance Payment of Research and Development Costs;
(3) Return to the applicant any concept proposal the Board determines is not complete, along with an explanation of the reason for the determination (If the concept proposal is resubmitted at a later date, it will be considered a new concept proposal solely for the purposes of determining the amount of time that the Board must take action);
(4) Determine whether the concept proposal, if developed into a policy or plan of insurance would, in good faith, would meet the requirement of being likely to result in a viable and marketable policy consistent with section 508(h) (if the applicant cannot obtain a marketability assessment by another AIP, the Board shall presume that the submission is unmarketable);
(5) At its sole discretion, determine whether the concept proposal, if developed into a policy or plan of insurance would meet the requirement of providing coverage:
(i) In a significantly improved form;
(ii) To a crop or region not traditionally served by the Federal crop insurance program; or
(iii) In a form that addresses a recognized flaw or problem in the program;
(6) Determine whether the proposed budget and timetable are reasonable;
(7) Determine whether the concept proposal meets all other requirements imposed by the Board or as otherwise specified in Procedures Handbook 17030 – Approved Procedures for Submission of Concept Proposals Seeking Advance Payment of Research and Development Costs; and
(8) Provide a date by which the 508(h) submission must be provided in consultation with the applicant.
(d) Upon the Board’s receipt of an index-based weather plan of insurance, the Board will:
(1) Determine whether the index-based weather plan of insurance is complete (the date the Board votes to contract with expert reviewers is the date the index-based weather plan of insurance is deemed to be complete for the start of the 120-day time-period for approval);
(2) If determined to be complete, contract with five expert reviewers and review the index-based weather plan of insurance in accordance with section 523(i) of the Act, this subpart, and Procedures Handbook 17050 – Approved Procedures for Submission of Index-based Weather Plans of Insurance;
(3) Return to the applicant any index-based weather plan of insurance the Board determines is not complete, along with an explanation of the reason for the determination (if the index-based weather plan of insurance is resubmitted at a later date, it will be considered a new index-based weather plan of insurance solely for the purposes of determining the amount of time that the Board must take action); and
(4) Give the highest priority for approval of index-based weather plans of insurance that provide a new kind of coverage for specialty crops and livestock commodities that previously had no available crop insurance, or have demonstrated a low level of participation under existing coverage.
(e) All comments and evaluations will be provided to the Board by a date determined by the Board to allow the Board adequate time for review.
(f) The Board will consider all comments, evaluations, and recommendations in its review process. Prior to making a decision, the Board may request additional information from RMA, OGC, the expert reviewers, or the applicant.
(g) In considering whether to approve policies or plans of insurance and when such policies or plans of insurance will be offered for sale, the Board will:
(1) First, consider policies or plans of insurance that address underserved commodities, including commodities for which there is no insurance;
(2) Second, consider existing policies or plans of insurance for which there is inadequate coverage or there exists low levels of participation; and
(3) Last, consider all policies or plans of insurance submitted to the Board that do not meet the criteria described in paragraph (g)(1) or (2) of this section.
(h) At any time an applicant may request a time delay after the 508(h) submission, concept proposal, or index-based weather plan of insurance has been placed on the Board meeting agenda. The Board is not required to agree to such an extension.
(1) With respect to 508(h) submissions from concept proposals approved by the Board for advanced payment, the applicant must provide good cause why consideration should be delayed.
(2) Any requested time delay is not limited in the length of time unless a date is set by the Board by which all revisions to the 508(h) submission, concept proposal or index-based weather plan of insurance must be made. However, delays may make implementation of the 508(h) submission for the targeted crop year impractical or impossible as determined by the Board.
(3) The time period during which the Board will make a decision to approve or disapprove the 508(h) submission, concept proposal or index-based weather plan of insurance shall be extended commensurately with any time delay requested by the applicant.
(i) The applicant may withdraw a 508(h) submission, concept proposal, index-based weather plan of insurance, or a portion of a 508(h) submission or concept proposal, at any time by presenting a request to the Board. A withdrawn 508(h) submission, concept proposal or index-based weather plan of insurance that is resubmitted will be deemed a new 508(h) submission, concept proposal, or index-based weather plan of insurance solely for the purposes of determining the amount of time that the Board must take action.
(j) The Board will render a decision on a 508(h) submission or index-based weather plan of insurance, with or without revision or give notice of intent to disapprove within 90 days after the date the 508(h) submission or index-based weather plan of insurance is considered complete by the Board, unless the Board agrees to a time delay in accordance with paragraph (h) of this section.
(k) The Board may provide a notice of intent to disapprove a 508(h) submission if it determines:
(1) The interests of producers and taxpayers are not protected, including but not limited to:
(i) The 508(h) submission does not provide adequate coverage or treats producers disparately;
(ii) The applicant has not presented sufficient documentation that the 508(h) submission will provide a new kind of coverage that is likely to be viable and marketable (if the applicant cannot obtain a marketability assessment by another AIP, the Board shall presume that the submission is unmarketable);
(iii) Coverage would be similar to another policy or plan of insurance that has not demonstrated a low level of participation or does not contain a clear and identifiable flaw, and the producer would not significantly benefit from the 508(h) submission;
(iv) The 508(h) submission may create adverse market distortions or adversely impact other crops or agricultural commodities if marketed;
(v) The 508(h) submission will have a significant adverse impact on the private delivery system;
(vi) The 508(h) submission cannot be implemented, administered, and delivered effectively and efficiently using RMA’s information technology and delivery systems;
(vii) The 508(h) submission contains flaws that may encourage adverse selection or moral hazard; or
(viii) The 508(h) submission contains vulnerabilities that allow indemnities to exceed the value of the crop;
(2) The premium rates are not actuarially appropriate;
(3) The 508(h) submission does not conform to sound insurance and underwriting principles;
(4) The risks associated with the 508(h) submission are excessive or it increases or shifts risk to another reinsured policy;
(5) The 508(h) submission does not meet the requirements of the Act; or
(6) The 90-day deadline under subsection (j) will expire before the Board has time to make an informed decision to approve or disapprove the 508(h) submission.
(l) The Board may disapprove a concept proposal if it determines:
(1) The concept, in good faith, will not likely result in a viable and marketable policy consistent with section 508(h);
(2) At the sole discretion of the Board, the concept, if developed into a policy and approved by the Board, would not provide crop insurance coverage:
(i) In a significantly improved form;
(ii) To a crop or region not traditionally served by the Federal crop insurance program; or
(iii) In a form that addresses a recognized flaw or problem in the program;
(3) The proposed budget and timetable are not reasonable, as determined by the Board; or
(4) The concept proposal fails to meet one or more requirements established by the Board.
(m) The Board shall provide a notice of intent to disapprove an index-based weather plan of insurance if it determines there is not:
(1) Adequate experience in underwriting and administering policies or plans of insurance that are comparable to the proposed policy or plan of insurance;
(2) Sufficient assets or reinsurance to satisfy the underwriting obligations of the approved insurance provider, and possess a sufficient insurance credit rating from an appropriate credit rating bureau, in accordance with Board procedures; and
(3) Applicable authority and approval from each State in which the approved insurance provider intends to sell the insurance product.
(n) Unless otherwise provided for in this section:
(1) If the Board intends to disapprove a 508(h) submission or index-based weather plan of insurance, the Board will provide the applicant with a written explanation outlining the basis for the intent to disapprove; and
(2) Any approval or disapproval of a 508(h) submission, concept proposal, or index-based weather plan of insurance must be made by the Board in writing not later than 120 days after the Board has determined it to be complete.
(o) If a notice of intent to disapprove all or part of a 508(h) submission or index-based weather plan of insurance has been provided by the Board, the applicant must provide written notice to the Board not later than 30 days after the Board provides such notice if the 508(h) submission or index-based weather plan of insurance will be modified. If the applicant does not respond within the 30-day period, the Board will send the applicant a letter stating the 508(h) submission or index-based weather plan of insurance is disapproved.
(p) If the applicant elects to modify the 508(h) submission or index-based weather plan of insurance:
(1) The applicant must advise the Board of a date by which the modified 508(h) submission or index-based weather plan of insurance will be presented to the Board; and
(2) The remainder of the time left between the Board’s notice of intent to disapprove and the expiration of the 120-day deadline is paused until the modified 508(h) submission or index-based weather plan of insurance is received by the Board.
(3) The Board will disapprove a modified 508(h) submission or index-based weather plan of insurance if the:
(i) Causes for disapproval stated by the Board in its notification of intent to disapprove the 508(h) submission or index-based weather plan of insurance are not satisfactorily addressed;
(ii) Board determines there is insufficient time for the Board to finish its review before the expiration of the 120-day deadline for disapproval of a 508(h) submission or index-based weather plan of insurance, unless the applicant grants the Board an extension of time to adequately consider the modified 508(h) submission or index-based weather plan of insurance (If an extension of time is agreed upon, the time period during which the Board must act on the modified 508(h) submission or index-based weather plan of insurance will paused during the extension); or
(iii) Applicant does not present a modification of the 508(h) submission or index-based weather plan of insurance to the Board on the date the applicant specified and the applicant does not request an additional time delay.
(q) If the Board fails to render a decision on a new 508(h) submission or index-based weather plan of insurance within the time periods specified in paragraph (j) or (n) of this section, such 508(h) submission or index-based weather plan of insurance will be deemed approved by the Board for the initial reinsurance year designated for the 508(h) submission or index-based weather plan of insurance. The Board must approve the 508(h) submission or index-based weather plan of insurance for it to be available for any subsequent reinsurance year.
§ 400.707 Presentation to the Board for approval or disapproval.
(a) The Board will inform the applicant of the date, time, and place of the Board meeting.
(b) The applicant will be given the opportunity and is encouraged to present the 508(h) submission, concept proposal, or index-based weather plan of insurance to the Board in person. The applicant must confirm in writing, email or fax whether the applicant will present in person to the Board.
(c) If the applicant elects not to present the 508(h) submission, concept proposal, or index-based weather plan of insurance to the Board, the Board will make its decision based on the information provided in accordance with § 400.705 and § 400.706.
§ 400.708 Post approval.
(a) After a 508(h) submission is approved by the Board, and prior to it being made available for sale to producers:
(1) The following must be executed, as applicable:
(i) If required by FCIC, an agreement between the applicant and FCIC that specifies:
(A) In addition to the requirements in § 400.709, responsibilities of each with respect to the implementation, delivery and maintenance of the 508(h) submission; and
(B) The required timeframes for submitting any information and documentation needed to administer the approved 508(h) submission;
(ii) A reinsurance agreement if the approved submission does not meet, or is not expected to perform in a financial manner consistent with the terms and conditions of the Standard Reinsurance Agreement or any other existing reinsurance agreement offered by FCIC in effect for the crop year, and that considers the interests of all participating AIPs; and
(iii) A training package to facilitate implementation of the approved 508(h) submission;
(2) The Board may limit the availability of coverage, for any policy or plan of insurance developed under the authority of the Act and this regulation, on any farm or in any county or area;
(3) A 508(h) submission approved by the Board under this subpart will be made available to all approved insurance providers under the same reinsurance, subsidy, and terms and conditions as received by the applicant;
(4) Any solicitation, sales, marketing, or advertising of the approved 508(h) submission by the applicant before FCIC has made the policy materials available to all interested parties through its official issuance system will result in the denial of reinsurance, risk subsidy, and A&O subsidy for those policies affected; and
(5) The property rights to the 508(h) submission will automatically transfer to FCIC if the applicant elects not to maintain the 508(h) submission under § 400.712(a)(3) or fails to notify FCIC of its decision to elect or not elect maintenance of the program under § 400.712(l).
(b) Requirements and procedures for approved index-based weather plans of insurance are contained in Procedures Handbook 17050 – Approved Procedures for Submission of Index-based Weather Plans of Insurance. In accordance with the Board approved procedures, index-based weather plans of insurance are not eligible for federal reinsurance, but may be approved for risk subsidy and A&O subsidy.
§ 400.709 Roles and responsibilities.
(a) With respect to the applicant:
(1) The applicant is responsible for:
(i) Preparing and ensuring that all policy documents, rates of premium, prices, and supporting materials, including actuarial documents, are submitted by the deadline specified by FCIC, in the form approved by the Board, and are in compliance with section 508 of the Rehabilitation Act;
(ii) Annually updating and providing maintenance changes no later than 180 days prior to the earliest contract change date for the commodity in all counties or states in which the policy or plan of insurance is sold;
(iii) Timely addressing questions, problems or clarifications in regard to a policy or plan of insurance (all such resolutions for approved 508(h) submissions will be communicated to all approved insurance providers through FCIC’s official issuance system); and
(iv) If requested by the Board, providing an annual review of the policy’s performance, in writing to the Board, 180 days prior to the contract change date for the plan of insurance (The first annual report will be submitted one full year after implementation of an approved policy or plan of insurance, as agreed to by the submitter and RMA);
(2) Only the applicant may make changes to the policy, plan of insurance, or rates of premium approved by the Board:
(i) Any changes to approved 508(h) submissions, both non-significant and significant, must be submitted to FCIC in the form of a 508(h) submission for review in accordance with this subpart no later than 180 days prior to the earliest contract change date for the commodity in all counties or states in which the policy or plan of insurance is sold; and
(ii) Significant changes will be considered a new 508(h) submission;
(3) Except as provided in paragraph (a)(4) of this section, the applicant is solely liable for any mistakes, errors, or flaws in the submitted policy, plan of insurance, their related materials, or the rates of premium that have been approved by the Board unless, or until, the policy or plan of insurance is transferred to FCIC in accordance with § 400.712(l) (the applicant remains liable for any mistakes, errors, or flaws that occurred prior to transfer of the policy or plan of insurance to FCIC);
(4) If the mistake, error, or flaw in the policy, plan of insurance, their related materials, or the rates of premium is discovered more than 45 days prior to the cancellation or termination date for the policy or plan of insurance, the applicant may request in writing that FCIC withdraw the approved policy, plan of insurance, or rates of premium:
(i) Such request must state the discovered mistake, error, or flaw in the policy, plan of insurance, or rates of premium, and the expected impact on the program; and
(ii) For all timely received requests for withdrawal, no liability will attach to such policies, plans of insurance, or rates of premium that have been withdrawn and no producer, approved insurance provider, or any other person will have a right of action against the applicant;
(5) Notwithstanding the policy provisions regarding cancellation, any policy, plan of insurance, or rates of premium that have been withdrawn by the applicant, in accordance with paragraph (a)(4) of this section is deemed canceled and applications are deemed not accepted as of the date that FCIC publishes the notice of withdrawal on its Web site at www.rma.usda.gov.
(i) Approved insurance providers will be notified in writing by FCIC that the policy, plan of insurance, or premium rates have been withdrawn; and
(ii) Producers will have the option of selecting any other policy or plan of insurance authorized under the Act that is available in the area by the sales closing date for such policy or plan of insurance; and
(6) Failure of the applicant to perform all of the applicant’s responsibilities may result in the withdrawal of approval for the policy or plan of insurance.
(b) With respect to FCIC:
(1) FCIC is responsible for:
(i) Conducting a review in accordance with § 400.706 and providing its recommendations to the Board;
(ii) With respect to 508(h) submissions:
(A) Ensuring that all approved insurance providers receive the approved policy or plan of insurance, and related material, for sale to producers in a timely manner (All such information shall be communicated to all approved insurance providers through FCIC’s official issuance system);
(B) As applicable, ensuring that approved insurance providers receive reinsurance under the same terms and conditions as the applicant (Approved insurance providers should contact FCIC to obtain and execute a copy of the reinsurance agreement) if required; and
(C) Reviewing the activities of approved insurance providers, agents, loss adjusters, and producers to ensure that they are in accordance with the terms of the policy or plan of insurance, the reinsurance agreement, and all applicable procedures;
(2) FCIC will not be liable for any mistakes, errors, or flaws in the policy, plan of insurance, their related materials, or the rates of premium and no cause of action may be taken against FCIC as a result of such mistake, error, or flaw in a 508(h) submission or index-based weather plan of insurance submitted under this subpart;
(3) If at any time prior to the cancellation date, FCIC discovers there is a mistake, error, or flaw in the policy, plan of insurance, their related materials, or the rates of premium, or any other reason for withdrawal of approval contained in § 400.706(k) exists, FCIC will withdraw reinsurance for such policy or plan of insurance to all AIPs for the subsequent crop year (If reinsurance is denied, a written notice will be provided on RMA’s Web site at www.rma.usda.gov);
(4) If maintenance of the policy or plan of insurance is transferred to FCIC in accordance with § 400.712(l), FCIC will assume liability for the policy or plan of insurance for any mistake, error, or flaw that occur after the date the policy is transferred.
(c) If approval by the Board is withdrawn or reinsurance is denied for any 508(h) submission, RMA will provide such notice on its Web site and the approved insurance provider must cancel the policy or plan of insurance in accordance with its terms.
A policy or plan of insurance that is approved by the Board for FCIC reinsurance is preempted from state and local taxation. This preemption does not apply to index-based weather plans of insurance approved for premium subsidy or A&O subsidy under this part.
§ 400.711 Right of review, modification, and the withdrawal of approval.
(a) At any time after approval, the Board may review any policy, plan of insurance, related material, or rates of premium approved under this subpart, including index-based weather plans of insurance and request additional information to determine whether the policy, plan of insurance, related material, or rates of premium comply with the requirements of this subpart.
(b) The Board will notify the applicant of any problem or issue that may arise and allow the applicant an opportunity to make any needed change. If the contract change date has passed, the applicant will be liable for such problems or issues for the crop year in accordance with § 400.709 until the policy may be changed.
(c) The Board may withdraw approval for the applicable policy, plan of insurance or rate of premium, including index-based weather plans of insurance, as applicable, if:
(1) The applicant fails to perform the responsibilities stated under § 400.709(a);
(2) The applicant does not timely and satisfactorily provide materials or resolve any issue to the Board’s satisfaction so that necessary changes can be made prior to the earliest contract change date;
(3) The Board determines the applicable policy, plan of insurance or rate of premium, including index-based weather plans of insurance is not in conformance with the Act, these regulations or the applicable procedures;
(4) The policy, plan of insurance, or rates of premium are not sufficiently marketable according to the applicant’s estimate or fails to perform sufficiently as determined by the Board; or
(5) The interest of producers or tax payers is not protected or the continuation of the program raises questions or issues of program integrity.
§ 400.712 Research and development reimbursement, maintenance reimbursement, advance payments for concept proposals, and user fees.
(a) For 508(h) submissions approved by the Board for reinsurance under section 508(h) of the Act:
(1) The 508(h) submission may be eligible for a one-time payment of research and development costs and reimbursement of maintenance costs for up to four reinsurance years, as determined by the Board;
(2) Reimbursement of research and development costs or maintenance costs will be considered as payment in full by FCIC for the 508(h) submission, and no additional amounts will be owed to the applicant if the 508(h) submission is transferred to FCIC in accordance with paragraph (l) of this section; and
(3) If the applicant elects at any time not to continue to maintain the 508(h) submission, it will automatically become the property of FCIC and the applicant will no longer have any property rights to the 508(h) submission and will not receive any user fees for the plan of insurance;
(b) The Board approved procedures and time-frames must be followed, or research and development costs and maintenance costs may not be reimbursed.
(1) After a 508(h) submission has been approved by the Board for reinsurance, to be considered for reimbursement of:
(i) Research and development costs, the applicant must submit the total amount requested and all supporting documentation to FCIC by electronic method or by hard copy and such information must be received by FCIC on or before August 1 immediately following the date the 508(h) submission was released to approved insurance providers through FCIC’s issuance system; or
(ii) Maintenance costs, the applicant must submit the total amount requested and all supporting documentation to FCIC by electronic method or by hard copy and such information must be received by FCIC on or before August 1 of each year of the maintenance period.
(2) Given the limitation on funds, regardless of when the request is received, no payment will be made prior to September 15 of the applicable fiscal year.
(c) Applicants submitting a concept proposal may request an advance payment of up to 50 percent of the projected total research and development costs, and after the applicant has begun research and development activities, the Board may, at its sole discretion, provide up to an additional 25 percent advance payment of the estimated research and development costs, if the requirements in the definition of advance payment are met and the additional advance payment is requested in accordance with Procedures Handbook 17030 – Approved Procedures for Submission of Concept Proposals Seeking Advance Payment of Research and Development Costs.
(1) If a concept proposal is approved by the Board for advance payment, the applicant is responsible for independently developing a 508(h) submission that is complete as specified in this subpart by the deadline set by the Board.
(i) If an applicant fails to fulfill the obligation to provide a 508(h) submission that is complete by the deadline set by the Board, the Board shall provide a notice of non-compliance to the applicant and allow not less than 30 days for the applicant to respond;
(ii) If the applicant fails to respond, to the satisfaction of the Board, with just cause as to why a 508(h) submission that is complete was not provided by the deadline set by the Board, the applicant shall return the amount of the advance payment plus interest at the rate of 1.25 percent simple interest per calendar month;
(iii) If the applicant responds, to the satisfaction of the Board, with just cause as to why a 508(h) submission that is complete was not provided by the deadline set by the Board, the applicant will be given a new deadline by which to provide a 508(h) submission that is complete; and
(iv) If the applicant fails to provide a 508(h) submission that is complete by the deadline, no additional extensions will be approved by the Board and the applicant shall return the amount of the advance payment plus interest at the rate of 1.25 percent simple interest per calendar month.
(2) If an applicant receives an advance payment for a portion of the expected research and development costs for a concept proposal that is developed into a 508(h) submission and determined by the Board to be complete, but the 508(h) submission is not approved by the Board following expert review, the Board will not:
(i) Seek a refund of any advance payments for research and development costs; and
(ii) Make any further research and development cost reimbursements associated with the 508(h) submission.
(d) Under section 522 of the Act, there are limited funds available on an annual fiscal year basis to pay for reimbursements of research and development costs (including advance payments for concept proposals) and maintenance costs. Consistent with paragraphs (e) through (j) of this section if all applicants’ requests for reimbursement of research and development costs (including advance payments for concept proposals) and maintenance costs in any fiscal year:
(1) Do not exceed the maximum amount authorized by law, the applicants may receive the full amount of reimbursement determined reasonable by the Board; or
(2) Exceed the amount authorized by law, each applicant’s reimbursement determined reasonable by the Board will be determined by dividing the total amount of each individual applicant’s reimbursable costs authorized in paragraphs (e) through (j) of this section by the total amount of the aggregate of all applicants’ reimbursable costs authorized in paragraphs (e) through (j) for the year and multiplying the result by the amount of reimbursement authorized under the Act.
(e) The amount of reimbursement for research and development costs and maintenance costs requested by the applicant may be reduced as necessary when the requested amount is not commensurate with the complexity or the size of the area proposed to be covered.
(f) Research and development costs and maintenance costs must be supported by itemized statements and supporting documentation (copies of contracts, billing statements, time sheets, travel vouchers, accounting ledgers, etc.).
(1) Actual costs submitted will be examined for reasonableness and may be adjusted at the sole discretion of the Board.
(2) Allowable research and development costs and maintenance costs (directly related to research and development or maintenance of the 508(h) submission only) may include the following:
(i) Wages and benefits, exclusive of bonuses, overtime pay, or shift differentials;
(A) One line per employee or contractor, include job title, total hours, and total dollars;
(B) The rates charged must be commensurate with the tasks performed (For example, a person performing the task of data entry should not be paid at the rate for performing data analysis);
(C) The wage rate and benefits shall not exceed two times the hourly wage rate plus benefits provided by the Bureau of Labor Statistics; and
(D) The applicant must report any familial or business relationship that exists between the applicant and the contractor or employee (Reimbursement may be limited or denied if the contractor or employee is associated to the applicant and they may be considered as one and the same. This includes a separate entity being created by the applicant to conduct research and development. Reimbursement may be limited or denied if the contractor is paid a salary or other compensation);
(ii) Travel and transportation (One line per event, include the job title, destination, purpose of travel, lodging cost, mileage, air or other identified transportation costs, food and miscellaneous expenses, other costs, and the total cost);
(iii) Software and computer programming developed specifically to determine appropriate rates, prices, or coverage amounts (Identify the item, include the purpose, and provide receipts or contract or straight-time hourly wage, hours, and total cost. Software developed to send or receive data between the producer, agent, approved insurance provider or RMA or such other similar software may not be included as an allowable cost);
(iv) Miscellaneous expenses such as postage, telephone, express mail, and printing (Identify the item, cost per unit, number of items, and total dollars); and
(v) Training costs expended to facilitate implementation of a new approved 508(h) submission (Include instructor(s) hourly rate, hours, and cost of materials and travel) conducted at a national level, directed to all approved insurance providers interested in selling the 508(h) submission, and approved prior to the training by RMA).
(3) The following expenses are specifically not eligible for research and development and maintenance cost reimbursement:
(i) Copyright fees, patent fees, or any other charges, costs or expenses related to the use of intellectual property;
(ii) Training costs, excluding training costs to facilitate implementation of the approved 508(h) submission in accordance with subsection (f)(2)(v);
(iii) State filing fees and expenses;
(iv) Normal ongoing administrative expenses or indirect overhead costs (for example, costs associated with the management or general functions of an organization, such as costs for internet service, telephone, utilities, and office supplies);
(v) Paid or incurred losses;
(vi) Loss adjustment expenses;
(vii) Sales commission;
(viii) Marketing costs;
(ix) Lobbying costs;
(x) Product or applicant liability resulting from the research, development, preparation or marketing of the policy;
(xi) Copyright infringement claims resulting from the research, development, preparation or marketing of the policy;
(xii) Costs of making program changes as a result of any mistakes, errors or flaws in the policy or plan of insurance;
(xiii) Costs associated with building rents or space allocation;
(xiv) Costs in paragraphs (i) and (j) of this section determined by the Board to be ineligible for reimbursement; and
(xv) Local, State, or Federal taxes.
(g) Requests for reimbursement of maintenance costs must be supported by itemized statements and supporting documentary evidence for each reinsurance year in the maintenance period.
(1) Actual costs submitted will be examined for reasonableness and may be adjusted at the sole discretion of the Board.
(2) Maintenance costs for the following activities may be reimbursed:
(i) Expansion of the original 508(h) submission into additional crops, counties or states;
(ii) Non-significant changes to the policy and any related material;
(iii) Non-significant or significant changes to the policy as necessary to protect program integrity or as required by Congress; and
(iv) Any other activity that qualifies as maintenance.
(h) Projected costs for research and development for concept proposals shall be based on a detailed estimate of the costs allowed in paragraph (f) of this section. Since costs are one measurement of the viability to develop an efficient policy, the Board may limit reimbursements for research and development to the estimated costs contained in the concept proposal, unless the submitter can justify a higher reimbursement in accordance with Board procedures.
(i) If a 508(h) submission is determined to be incomplete and is subsequently resubmitted and approved, the costs to perfect the 508(h) submission may not be considered reimbursable costs depending on the level of insufficiency or incompleteness of the 508(h) submission, as determined at the sole discretion of the Board.
(j) Reimbursement of costs associated with addressing issues raised by the Board, expert reviewers and RMA will be evaluated based on the substance of the issue and the amount of time reasonably necessary to address the specific issue. Delays and additional costs caused by the inability or refusal to adequately address issues may not be considered reimbursable, as determined at the sole discretion of the Board.
(k) If the Board withdraws its approval for reinsurance at any time during the period that reimbursement for maintenance is being made or user fees are being collected, no maintenance reimbursement shall be made nor any user fee be owed after the date of such withdrawal.
(l) Not later than 180 days prior to the end of the last reinsurance year in which a maintenance reimbursement will be paid for the approved 508(h) submission, the applicant must notify FCIC in writing regarding its decision on future ownership and maintenance of the policy or plan of insurance.
(1) The applicant must notify FCIC in writing whether it intends to:
(i) Continue to maintain the policy or plan of insurance and charge approved insurance providers a user fee to cover maintenance expenses for all policies earning premium; or
(ii) Transfer responsibility for maintenance to FCIC.
(2) If the applicant fails to notify FCIC in writing by the deadline, the policy or plan of insurance will automatically transfer to FCIC beginning with the next reinsurance year.
(3) If the applicant elects to:
(i) Continue to maintain the policy or plan of insurance, the applicant must submit a request for approval of the user fee by the Board at the time of the election; or
(ii) Transfer the policy or plan of insurance to FCIC, FCIC may at its sole discretion, continue to maintain the policy or plan of insurance or elect to withdraw the availability of the policy or plan of insurance.
(4) Requests for approval of the user fee must be accompanied by written documentation to support the amount requested will only cover direct costs to maintain the plan of insurance. Costs that are not eligible for research and development and maintenance reimbursements under this section are not eligible to be considered for determining the user fee.
(5) The Board will approve the amount of user fee, including the maximum amount of total maintenance that may be collected per year, that is payable to the applicant by approved insurance providers unless the Board determines that the user fee charged:
(i) Is unreasonable in relation to the maintenance costs associated with the policy or plan of insurance; or
(ii) Unnecessarily inhibits the use of the policy or plan of insurance by approved insurance providers.
(6) If the total user fee exceeds the maximum amount determined by the Board, the maximum amount determined by the Board will be divided by the number of policies earning premium to determine the amount to be paid by each approved insurance provider.
(7) Reasonableness of the initial request to charge a user fee will be determined by the Board based on a comparison of the amount of reimbursement for maintenance previously received, the number of policies, the number of approved insurance providers, and the expected total amount of user fees to be received in any reinsurance year.
(8) A user fee unnecessarily inhibits the use of a policy or plan of insurance if it is so high that approved insurance providers will not sell the policy, or the user fee represents an unreasonable portion of the A&O subsidy paid to the AIP such that it prevents the AIP from meeting its other obligations under the SRA.
(9) The user fee charged to each approved insurance provider will be considered payment in full for the use of such policy, plan of insurance or rate of premium for the reinsurance year in which payment is made.
(10) It is the sole responsibility of the applicant to collect such fees from an approved insurance provider and any indebtedness for such fees must be resolved by the applicant and approved insurance provider.
(i) Applicants may request that FCIC provide the number of policies sold by each approved insurance provider.
(ii) Such information will be provided not later than 90 days after such request is made or not later than 90 days after the requisite information has been provided to FCIC by the approved insurance provider, whichever is later.
(11) Every two years after approval of a user fee, or if the applicant has made a significant change to the approved 508(h) submission, applicants must submit documentation to the Board for review in determining if the user fee should be revised.
(12) The Board may review the amount of the user fee at any time at its sole discretion.
(m) The Board may consider information from the Equal Access to Justice Act, 5 U.S.C. 504, the Bureau of Labor Statistic’s Occupational Employment Statistics Survey, the Bureau of Labor Statistic’s Employment Cost Index, and any other information determined applicable by the Board, in making a determination whether to approve a 508(h) submission for reimbursement of research and development costs, maintenance costs, or user fees.
(n) For purposes of this section, rights to, or obligations of, research and development cost reimbursement, maintenance cost reimbursement, or user fees cannot be transferred from any individual or entity unless specifically approved in writing by the Board.
(o) Applicants requesting reimbursement for research and development costs, maintenance costs, or user fees, may present their request in person to the Board prior to consideration for approval.
(p) Index-based weather plans of insurance are not eligible for reimbursement from FCIC for maintenance costs or research and development costs. Submitters of approved index-based weather plans of insurance may collect user fees from other approved insurance providers in accordance with Procedures Handbook 17050 – Approved Procedures for Submission of Index-based Weather Plans of Insurance.
§ 400.713 Non-reinsured supplemental (NRS) policy.
(a) Unless otherwise specified by FCIC, any NRS policy that covers the same agricultural commodity as any policy reinsured by FCIC under the Act must be provided to RMA to ensure it does not shift any loss or risk that does not exist under the FCIC reinsured policy. Failure to provide such NRS policy or endorsement to RMA prior to its issuance shall result in the denial of reinsurance, A&O subsidy, and risk subsidy on all underlying FCIC reinsured policies unless the underlying FCIC policy was sold by another AIP. If the underlying FCIC reinsured policy is sold by another AIP, the AIP that sold the NRS may be required to pay FCIC an amount equal to the reinsurance, A&O subsidy, and risk subsidy on the underlying FCIC policy.
(b) An electronic copy in Microsoft Office compatible format, of the new or revised NRS policy and related materials must be submitted at least 150 days prior to the first sales closing date applicable to the NRS policy. At a minimum, examples that demonstrate how liability and indemnities are calculated under differing scenarios must be included. Electronic copies of the NRS must be sent to the Deputy Administrator for Product Management (or successor) at [email protected].
(c) RMA will review the NRS policy. If any of the conditions found in paragraphs (c)(1) through (5) of this section are found to occur, FCIC will notify the AIP that submitted the NRS policy that if they sell the NRS policy, it will result in denial of reinsurance, A&O subsidy, and risk subsidy on all underlying FCIC reinsured policies, unless the underlying FCIC policy was sold by another AIP. If the underlying FCIC reinsured policy is sold by another AIP, the AIP that sold the NRS may be required to pay FCIC an amount equal to the reinsurance, A&O subsidy, and risk subsidy on the underlying FCIC policy.
(1) If the NRS policy materially increases or shifts risk to the underlying policy or plan of insurance reinsured by FCIC.
(i) An NRS policy will be considered to materially increase or shift risk to the underlying policy or plan of insurance reinsured by FCIC if RMA determines it:
(A) Creates a moral hazard, such as a financial incentive for the policyholder to behave in a way that increases the number or size of losses;
(B) Results in the underlying FCIC policy either triggering a loss sooner, or paying a larger indemnity than would otherwise be allowed by the terms and conditions of the underlying reinsured policy; or
(C) Allows for combined indemnities between the underlying FCIC reinsured policy and the NRS that are in excess of the value a producer would reasonably expect to receive for the insured commodity if a normal crop was produced and sold at a reasonable market price.
(ii) The NRS must include language that clearly states no indemnity will be paid in excess of the initial value of the insured commodity.
(2) The NRS reduces or limits the rights of the insured with respect to the underlying policy or plan of insurance reinsured by FCIC. An NRS policy will be considered to reduce or limit the rights of the insured with respect to the underlying policy or plan of insurance if RMA determines it affects, alters, preempts, or undermines the terms or conditions of the underlying policy or procedures issued by FCIC.
(3) The NRS disrupts the marketplace. An NRS policy will be considered to disrupt the marketplace if RMA determines it encourages planting more acres of the insured commodity in excess of normal market demand, adversely affects the sales or administration of reinsured policies, undermines producers’ confidence in the Federal crop insurance program, or harms public perception of the Federal crop insurance program.
(4) The NRS is an impermissible rebate. An NRS may be considered to be an impermissible rebate if RMA determines that the premium rates charged are insufficient to cover the expected losses and a reasonable reserve or it offers other benefits that are generally provided at a cost.
(5) The NRS policy is conditioned upon or provides incentive for the purchase of the underlying policy or plan of insurance reinsured by FCIC with a specific agent or approved insurance provider.
(d) RMA will respond not less than 75 days before the first sales closing date or provide notice why RMA is unable to respond within the time frame allotted.
(e) NRS policies reviewed by RMA will need to be submitted once every five years unless a change is made to the NRS or the underlying policy. Once any changes are made to either policy, or the five year period has concluded, the NRS must be resubmitted for review.
Subpart W [Reserved]
Subpart X – Interpretations of Statutory Provisions, Policy Provisions, and Procedures
§ 400.765 Definitions.
The definitions in this section apply to this subpart.
Act. The Federal Crop Insurance Act, 7 U.S.C. 1501-1524.
Approved insurance provider. A private insurance company that has been approved by FCIC to sell and service Federal crop insurance policies under a reinsurance agreement with FCIC.
FCIC. The Federal Crop Insurance Corporation, a wholly owned government corporation within the United States Department of Agriculture.
FCIC interpretation. An interpretation of a policy provision not codified in the Code of Federal Regulations or any procedure used in the administration of the Federal crop insurance program.
Final agency determination. Matters of general applicability regarding FCIC’s interpretation of provisions of the Act or any regulation codified in the Code of Federal Regulations, including certain policy provisions, which are applicable to all participants in the Federal crop insurance program and the appeals process.
NAD. The USDA National Appeals Division. See 7 CFR part 11.
Participant. Any applicant for Federal crop insurance, an insured, or approved insurance provider or their agent, loss adjuster, employee or contractor.
Procedure. All FCIC issued handbooks, manuals, memoranda, and bulletins for any crop insurance policy reinsured by FCIC.
Proceeding. The process that starts with the filing of a complaint, notice of appeal, or other such document that commences the appeals process, and ends with the adjudicatory body issuing its decision, and includes all necessary activities, such as discovery, that occur within that time frame.
RMA. The Risk Management Agency, an agency of the United States Department of Agriculture.
You. The requestor of a final agency determination or FCIC interpretation.
§ 400.766 Basis and applicability.
(a) The regulations contained in this part prescribe the rules and criteria for obtaining a final agency determination or a FCIC interpretation.
(1) FCIC will provide a final agency determination or a FCIC interpretation, as applicable, for statutory, regulatory, or other policy provisions or procedures that were in effect during the four most recent crop years from the crop year in which your request was submitted. For example, for a request received in the 2014 crop year, FCIC will consider requests for the 2014, 2013, 2012, and 2011 crop years.
(2) If FCIC determines a request is outside the scope of crop years authorized in paragraph (a)(1) of this section, you will be notified within 30 days of the date of receipt by FCIC.
(3) If the statutory, regulatory or other policy provisions or procedures have changed for the time period you seek an interpretation you must submit a separate request for each policy provision or procedure by year. For example, if you seek an interpretation of section 6(b) of the Small Grains Crop Provisions for the 2012 through 2015 crop years but the policy provisions were revised starting with the 2014 crop year, you must submit two requests, one for the 2012 and 2013 crop years and another for the 2014 and 2015 crop years.
(b) With respect to a final agency determination or a FCIC interpretation:
(1) If there is a dispute between participants that involves a final agency determination or a FCIC interpretation:
(i) The parties are required to seek an interpretation of the disputed provision from FCIC in accordance with this subpart (This may require that the parties seek a stay of the proceedings until an interpretation is provided, if such proceedings have been initiated); and
(ii) The final agency determination or FCIC interpretation may take the form of a written interpretation or, at the sole discretion of FCIC, may take the form of testimony from an employee of RMA expressly authorized in writing to provide interpretations of policy or procedure on behalf of FCIC.
(2) All written final agency determinations issued by FCIC are binding on all participants in the Federal crop insurance program for the crop years the policy provisions are in effect. All written FCIC interpretations and testimony from an employee of RMA are binding on the parties to the dispute, including the arbitrator, mediator, judge, or NAD.
(3) Failure to request a final agency determination or FCIC interpretation when required by this subpart or failure of NAD, arbitrator, mediator, or judge to adhere to the final agency determination or FCIC interpretation provided under this subpart will result in the nullification of any award or agreement in arbitration or mediation in accordance with the provisions in the “Mediation, Arbitration, Appeal, Reconsideration, and Administrative and Judicial Review” section or similar section in all crop insurance policies.
(4) If either party believes an award or decision was rendered by NAD, arbitrator, mediator, or judge based on a disputed provision in which there was a failure to request a final agency determination or FCIC interpretation or NAD, arbitrator, mediator, or judge’s decision was not in accordance with the final agency determination or FCIC interpretation rendered with respect to the disputed provision, the party may request FCIC review the matter to determine if a final agency determination or FCIC interpretation should have been sought in accordance with § 400.767.
(i) Requests should be submitted through one of the methods contained in § 400.767(a)(1);
(ii) If FCIC determines that a final agency determination or FCIC interpretation should have been sought and it was not, or the decision was not in accordance with the final agency determination or FCIC interpretation rendered with respect to the disputed provision:
(A) The award is automatically nullified; and
(B) Either party may appeal FCIC’s determination that a final agency determination or FCIC interpretation should have been sought and it was not, or the decision was not in accordance with the final agency determination or FCIC interpretation rendered with respect to the disputed provision to NAD in accordance with 7 CFR part 11.
(5) All written final agency determinations that are published on RMA’s website are considered matters of general applicability and are not appealable to NAD. Before obtaining judicial review of any final agency determination, you must obtain an Administrative Final Determination from the Director of NAD on the issue of whether the final agency determination is a matter of general applicability.
(6) With respect to an administrative review of a FCIC interpretation:
(i) If either party to the proceeding does not agree with the written FCIC interpretation, a request for administrative review may be filed in accordance with 7 CFR part 400, subpart J. If you seek an administrative review from FCIC, such request must be submitted in accordance with § 400.767(a).
(ii) FCIC will not accept requests for administrative review from NAD, a mediator, or arbitrator.
(iii) The RMA Office of the Deputy Administrator for Product Management will make a determination on the request for administrative review not later than 30 days after receipt of the request.
(iv) Regardless of whether you have sought administrative review, you may appeal a FCIC interpretation under this subsection to NAD in accordance with 7 CFR part 11.
§ 400.767 Requestor obligations.
(a) All requests for a final agency determination or FCIC interpretation submitted under this subpart must:
(1) Be submitted to the Deputy Administrator using the guidelines provided on RMA’s website at www.rma.usda.gov through one of the following methods:
(i) In writing by certified mail or overnight delivery, to the Deputy Administrator, Risk Management Agency, United States Department of Agriculture, Beacon Facility, Stop 0801, Room 421, P.O. Box 419205, Kansas City, MO 64141-6205;
(ii) By facsimile at (816) 926-3049; or
(iii) By electronic mail at [email protected];
(2) State whether you are seeking a final agency determination or FCIC interpretation;
(3) Identify and quote the specific provision in the Act, regulations, procedure, or policy provision for which you are requesting a final agency determination or a FCIC interpretation;
(4) Contain no more than one request for an interpretation (You must make separate requests for each provision if more than one provision is at issue. For example, if there is a dispute with the interpretation of Paragraph 3 of the Loss Adjustment Manual, then one request for an interpretation is required. If there is a dispute with the interpretation of Paragraph 3 of the Loss Adjustment Manual and Paragraph 2 of the Macadamia Nut Loss Adjustment Standards Handbook, then two separate requests for an interpretation are required);
(5) State the crop, crop year(s), and plan of insurance applicable to the request;
(6) State the name, address, and telephone number of a contact person for the request;
(7) Contain your detailed interpretation of the specific provision of the Act, regulations, procedure, or policy provision for which the request for interpretation is being requested; and
(8) Not contain any specific facts, alleged conduct, or hypothetical situations or the request will be returned to the requestor without consideration.
(b) You must advise FCIC if the request for a final agency determination or FCIC interpretation will be used in a judicial review, mediation, or arbitration.
(1) You must identify the type of proceeding (e.g., mediation, arbitration, or litigation), if applicable, in which the interpretation will be used, and the date the proceeding is scheduled to begin, or the earliest possible date the proceeding would likely begin if a specific date has not been established;
(2) The name, address, telephone number, and if applicable, fax number, or email address of a contact person for both parties to the dispute;
(3) Unless the parties elect to use the expedited review process available under the AAA rules or the appeal is before NAD, requests must be submitted not later than 90 days before the date the mediation, arbitration, or litigation proceeding in which the interpretation will be used is scheduled to begin.
(i) If the rules of the court, mediation, or arbitration require the interpretation prior to the date the proceeding begins, add 90 days to the number of days required prior to the proceeding. For example, if a court requires the interpretation 20 days prior to the date the proceeding begins, you must submit the request 110 days before the proceeding is scheduled to begin.
(ii) Failure to timely submit a request for a final agency determination or FCIC interpretation may result in:
(A) FCIC issuing a determination that no interpretation could be made because the request was not timely submitted; and
(B) Nullification of any agreement or award in accordance with § 400.766 if no final agency determination or FCIC interpretation can be provided.
(iii) Notwithstanding paragraph (b) of this section, if during the mediation, arbitration, or litigation proceeding, an issue arises that requires a final agency determination or FCIC interpretation the mediator, arbitrator, judge, or magistrate must promptly request a final agency determination or FCIC interpretation in accordance with § 400.767(a).
(4) FCIC at its sole discretion may authorize personnel to provide an oral or written final agency determination or FCIC interpretation, as appropriate; and
(5) Any decision or settlement resulting from such mediation, arbitration, or litigation proceeding before FCIC provides its final agency determination or FCIC interpretation can be nullified in accordance with § 400.766.
(c) If multiple parties are involved and have opposing interpretations, a joint request for a final agency determination or FCIC interpretation including both requestor interpretations in one request is encouraged. If multiple insured persons are parties to the dispute, and the request for a final agency determination or FCIC interpretation applies to all parties, one request may be submitted for all insured persons instead of separate requests for each person. In this case, the information required in this section must be provided for each person.
§ 400.768 FCIC obligations.
(a) FCIC will not provide a final agency determination or FCIC interpretation for any request regarding, or that contains, specific factual information to situations or cases, such as acts or failures to act of any participant under the terms of a policy, procedure, or any reinsurance agreement.
(1) FCIC will not consider specific factual information to situations or cases in any final agency determination or FCIC interpretation.
(2) FCIC will not consider any examples or hypotheticals provided in your interpretation because those are fact-specific and could be construed as a finding of fact by FCIC. If an example or hypothetical is required to illustrate an interpretation, FCIC will provide the example in the interpretation.
(b) If, in the sole judgment of FCIC, the request is unclear, ambiguous, or incomplete, FCIC will not provide a final agency determination or FCIC interpretation, but will notify you within 30 days of the date of receipt by FCIC that the request is unclear, ambiguous, or incomplete.
(c) If FCIC notifies you that a request is unclear, ambiguous or incomplete under paragraph (b) of this section, the 90-day time period for FCIC to provide a response is stopped on the date FCIC notifies you. On the date FCIC receives a clear, complete, and unambiguous request, FCIC has the balance of the days remaining in the 90-day time period to provide a response to you. For example, FCIC receives a request for a final agency determination on January 10. On February 10, FCIC notifies you the request is unclear. On March 10, FCIC receives a clarified request that meets all requirements for FCIC to provide a final agency determination. FCIC has sixty days from March 10, the balance of the 90-day time period, to provide a response.
(d) FCIC reserves the right to modify the request if FCIC determines that a request for a final agency determination is really a request for a FCIC interpretation or vice versa.
(e) FCIC will provide you a written final agency determination or a FCIC interpretation within 90 days of the date of receipt for a request that meets all requirements in § 400.767.
(f) If FCIC does not provide a response within 90 days of receipt of a request, you may assume your interpretation is correct for the applicable crop year. However, your interpretation shall not be considered generally applicable and shall not be binding on any other program participants. Additionally, in the case of a joint request for a final agency determination or a FCIC interpretation, if FCIC does not provide a response within 90 days, neither party may assume their interpretations are correct.
(g) FCIC will publish all final agency determinations as specially numbered documents on the RMA website because they are generally applicable to all program participants.
(h) FCIC will not publish any FCIC interpretation because it is only applicable to the parties in the dispute. You are responsible for providing copies of the FCIC interpretation to all other parties.
(i) When issuing a final agency determination or a FCIC interpretation, FCIC will not evaluate the insured, insurance provider, agent, or loss adjuster as it relates to their performance of following FCIC policy provisions or procedures. Interpretations will not include any analysis of whether the insured, insurance provider, agent, or loss adjuster was in compliance with the policy provision or procedure in question.
PART 401 [RESERVED]
PART 402 – CATASTROPHIC RISK PROTECTION ENDORSEMENT
§ 402.1 General statement.
The Federal Crop Insurance Act, as amended by the Federal Crop Insurance Reform Act of 1994, requires the Federal Crop Insurance Corporation to implement a catastrophic risk protection plan of insurance that provides a basic level of insurance coverage to protect producers in the event of a catastrophic crop loss due to loss of yield or prevented planting, if provided by the Corporation, provided the crop loss or prevented planting is due to an insured cause of loss specified in the crop insurance policy. This Catastrophic Risk Protection Endorsement is a continuous endorsement that is effective in conjunction with a crop insurance policy for the insured crop. Catastrophic risk protection coverage will be offered through approved insurance providers if there are a sufficient number available to service the area. If there are an insufficient number available, as determined by the Secretary, local offices of the Farm Service Agency will provide catastrophic risk protection coverage.
§ 402.2 Applicability.
This Catastrophic Risk Protection Endorsement is applicable to each crop for which catastrophic risk protection coverage is available and for which the producer elects such coverage.
§ 402.3 OMB control numbers.
The information collection activity associated with this rule has been approved by the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) under OMB control number 0563-0053.
§ 402.4 Catastrophic Risk Protection Endorsement Provisions.
If a conflict exists among the policy, the order of priority is: (1) This Endorsement; (2) Special Provisions; (3) actuarial documents; (4) the Commodity Exchange Price Provisions, if applicable; and (5) any of the policies specified in section 2, with (1) controlling (2), etc. Insurance provider. A private insurance company that has been approved by FCIC to provide insurance coverage to producers participating in programs authorized by the Federal Crop Insurance Act. Zero acreage report. An acreage report filed by you that certifies you do not have a share in the crop for that crop year. (a) You must have one of the following policies in force to elect this Endorsement: (1) The Common Crop Insurance Policy Basic Provisions (7 CFR 457.8) and applicable Crop Provisions (catastrophic risk protection coverage is not available under individual revenue plans of insurance such as Revenue Protection and Revenue Protection with Harvest Price Exclusion); (2) The Area Risk Protection Insurance Basic Provisions (7 CFR 407.9) and applicable Crop Provisions (catastrophic risk protection coverage is not available under area revenue plans of insurance such as Area Revenue Protection or Area Revenue Protection with the Harvest Price Exclusion); or (3) Other crop policies only if catastrophic risk protection coverage is provided in the applicable crop policy. (b) You must have made application for catastrophic risk protection on or before the sales closing date for the crop in the county. (c) You must be a “person” as defined in the crop policy to be eligible for catastrophic risk protection coverage. (a) This section is not applicable if you are insured under the Area Risk Protection Insurance Basic Provisions (7 CFR 407.9) and applicable Crop Provisions. (b) This section is in lieu of the unit provisions specified in the applicable crop policy. For catastrophic risk protection coverage, a unit will be all insurable acreage of the insured crop in the county on the date coverage begins for the crop year: (1) In which you have one hundred percent (100%) crop share; or (2) Which is owned by one person and operated by another person on a share basis. (Example: If, in addition to the land you own, you rent land from five landlords, three on a crop share basis and two on a cash basis, you would be entitled to four units; one for each crop share lease and one that combines the two cash leases and the land you own.) (c) Further division of the units described in section 3(b) is not allowed under this Endorsement. (a) Unless otherwise specified in the Special Provisions, catastrophic risk protection coverage will offer protection equal to: (1) Fifty percent (50%) of your approved yield indemnified at fifty-five percent (55%) of the price election or projected price, as applicable, if you are insured under the Common Crop Insurance Policy Basic Provisions (7 CFR 457.8) and applicable Crop Provisions; (2) Sixty-five percent (65%) of the expected county yield indemnified at forty-five percent (45%) of the maximum protection per acre if you are insured under the Area Risk Protection Insurance Basic Provisions (7 CFR 407.9) and applicable Crop Provisions; or (3) A comparable coverage as established by FCIC for other crop policies only if catastrophic risk protection coverage is provided in the applicable crop policy. (b) If the crop policy denominates coverage in dollars per acre or other measure, or any other alternative method of coverage, such coverage will be converted to the amount of coverage that would be payable at fifty percent (50%) of your approved yield indemnified at fifty-five percent (55%) of the price election. (c) You may elect catastrophic coverage for any crop insured or reinsured by FCIC on either an individual yield and loss basis or an area yield and loss basis, if both options are offered as set out in the Special Provisions. (a) The report of crop acreage that you file in accordance with the crop policy must be signed on or before the acreage reporting date. For catastrophic risk protection, unless the other person with an insurable interest in the crop objects in writing prior to the acreage reporting date and provides a signed acreage report on their own behalf, the operator may sign the acreage report for all other persons with an insurable interest in the crop without a power of attorney. All persons with an insurable interest in the crop, and for whom the operator purports to sign and represent, are bound by the information contained in that acreage report. (b) For the purpose of determining the amount of indemnity only, your share will not exceed your insurable interest at the earlier of the time of loss or the beginning of harvest. Unless the accepted application clearly indicates that insurance is requested for a partnership or joint venture, insurance will only cover the crop share of the person completing the application. The share will not extend to any other person having an interest in the crop except as may otherwise be specifically allowed in this endorsement. Any acreage or interest reported by or for your spouse, child or any member of your household may be considered your share. A lease containing provisions for both a minimum payment (such as a specified amount of cash, bushels, pounds, etc.) and a crop share will be considered a crop share lease. A lease containing provisions for either a minimum payment (such as a specified amount of cash, bushels, pounds, etc.,) or a crop share will be considered a cash lease. Land rented for cash, a fixed commodity payment, or any consideration other than a share in the insured crop on such land will be considered as owned by the lessee. (a) Except as provided in sections 6(f) and (h) and notwithstanding any provision contained in any other policy document, you will not be responsible to pay a premium, nor will the policy be terminated because the premium has not been paid. FCIC will pay a premium subsidy equal to the premium established for the coverage provided under this endorsement. (b) In return for catastrophic risk protection coverage, you must pay an administrative fee and premium as specified in section 6(f) to us within 30 days after you have been billed, unless otherwise authorized in the Federal Crop Insurance Act (You will be billed by the date stated in the actuarial documents); (1) The administrative fee owed is $655 for each crop in the county unless otherwise specified in the Special Provisions. (2) Payment of an administrative fee will not be required if you file a bona fide zero acreage report on or before the acreage reporting date for the crop (if you falsely file a zero acreage report you may be subject to criminal and administrative sanctions). (c) The administrative fee provisions of section 6(b) do not apply if you are a “beginning farmer or “rancher,” “veteran farmer or rancher,” or “limited resource farmer” as defined in the applicable crop policy. The administrative fee will be waived if you request it and you meet the requirements contained in the annual premium provisions of the applicable crop policy. (d) When a crop policy has provisions to allow you the option to separately insure individual crop types or varieties, you must pay a separate administrative fee in accordance with section 6(b) for each type or variety you elect to separately insure. (e) If the administrative fee and premium as specified in section 6(f) is not paid when due, you, and all persons with an insurable interest in the crop under the same contract, may be ineligible for certain other USDA program benefits. (f) You will be responsible for payment of the premium established for the coverage provided under this endorsement if: (1) USDA determines you have committed a violation of the highly erodible land conservation or wetland conservation provisions of 7 CFR part 12 as amended by the Agricultural Act of 2014; or (2) You have not filed form AD-1026 with FSA for the reinsurance year by the premium billing date. (i) Notwithstanding section 6(f)(2), you may be eligible for premium subsidy without having a timely filed form AD-1026: (A) For the initial reinsurance year if you certify by the premium billing date for your policy that you meet the qualifications as outlined in FCIC approved procedures for producers who are new to farming, new to crop insurance, a new entity, or have not previously been required to file form AD-1026; or (B) If FSA approves relief for failure to timely file due to circumstances beyond your control or failure to timely provide adequate information to complete form AD-1026 in accordance with the provisions contained in 7 CFR part 12. (ii) To be eligible for premium subsidy paid on your behalf by FCIC, it is your responsibility to assure you meet all the requirements for: (A) Compliance with the conservation provisions specified in section 6(f)(1) of this section; and (B) Filing form AD-1026 to be properly identified as in compliance with the conservation provisions specified in section 6(f)(1) of this section. (g) If the Act expressly authorizes an option or endorsement to be available in addition to the coverage available under this Endorsement (for example, the Supplemental Coverage Option) or any other additional coverage offered under the Federal Crop Insurance Act (for example, the Stacked Income Protection Plan), you will owe a separate annual premium and administrative fee for such option or endorsement if the option or endorsement has been made available in the actuarial documents and you elect to purchase such coverage. (h) Failure to pay the premium specified in section 6(f) will result in the termination of the policy and all other policies in accordance with the termination provisions specified in the applicable Basic Provisions. The crop insured is specified in the applicable crop policy; however, for policies other than those insured under the Area Risk Protection Insurance Basic Provisions, notwithstanding any other policy provision requiring the same insurance coverage on all insurable acreage of the crop in the county, if you purchase additional coverage for a crop, you may separately insure acreage designated as “high-risk” land by FCIC under catastrophic risk protection coverage, provided that you execute a High-Risk Land Exclusion Option and obtain a catastrophic risk protection coverage policy with the same insurance provider on or before the applicable sales closing date. You will be required to pay a separate administrative fee for both the additional coverage policy and the catastrophic risk protection coverage policy. Notwithstanding any provision contained in any other crop insurance document, no replant payment will be paid whether or not replanting of the crop is required under the policy. If two or more insured crop types, varieties, or classes are insured within the same unit, and multiple price elections, projected prices, or amounts of insurance are applicable, the dollar amount of insurance and the dollar amount of production to be counted will be determined separately for each type, variety, class, etc., that have separate price elections, projected prices, or amounts of insurance and then totaled to determine the total liability or dollar amount of production to be counted for the unit. Notwithstanding any provision contained in any other crop insurance document, your CAT policy may be voided by us on all crops without waiving any of our rights, including the right to collect any amounts due: (a) If at any time you conceal or misrepresent any material fact or commit fraud relating to this or any other contract issued under the authority of the Federal Crop Insurance Act with any insurance provider; and (b) The voidance will be effective for the crop year during which any such act or omission occurred. (a) Options or endorsements that extend the coverage available under any crop policy offered by FCIC will not be available under this endorsement, except for the Supplemental Coverage Option and any other option or endorsement or other additional coverage expressly authorized in the Federal Crop Insurance Act and allowed in the actuarial documents (for example, the Stacked Income Protection Plan). Written agreements are not available for any crop insured under this endorsement. (b) Notwithstanding any provision contained in any other crop policy, hail and fire coverage and high-risk land may not be excluded under catastrophic risk protection.
PARTS 403-406 [RESERVED]
PART 407 – AREA RISK PROTECTION INSURANCE REGULATIONS
§ 407.1 Applicability.
The provisions of this part are applicable only to those crops for which a Crop Provision is contained in this part and the crop years specified.
§ 407.2 Availability of Federal crop insurance.
(a) Insurance shall be offered under the provisions of this part on the insured crop in counties within the limits prescribed by and in accordance with the provisions of the Federal Crop Insurance Act (7 U.S.C. 1501-1524) (Act). The crops and counties shall be designated by the Manager of the Federal Crop Insurance Corporation (FCIC) from those approved by the Board of Directors of FCIC.
(b) The insurance is offered through insurance providers reinsured by the FCIC that offer contracts containing the same terms and conditions as the contract set out in this part. These contracts are clearly identified as being reinsured by FCIC. FCIC may offer the contract for coverage contained in this part and part 402 of this chapter directly to the insured through the Department of Agriculture if the Secretary determines that the availability of local agents is not adequate. Those contracts are specifically identified as being offered by FCIC.
(c) No person may have in force more than one insurance policy issued or reinsured by FCIC on the same crop for the same crop year, in the same county, unless specifically approved in writing by FCIC.
(d) Except as specified in paragraph (c) of this section, if a person has more than one contract authorized under the Act that provides coverage for the same loss on the same crop for the same crop year in the same county, all such contracts shall be voided for that crop year and the person will be liable for the premium on all contracts, unless the person can show to the satisfaction of the FCIC that the multiple contracts of insurance were without the fault of the person.
(1) If the multiple contracts of insurance are shown to be without the fault of the person and:
(i) One contract is an additional coverage policy and the other contract is a Catastrophic Risk Protection policy, the additional coverage policy will apply if both policies are with the same insurance provider, or if not, both insurance providers agree, and the Catastrophic Risk Protection policy will be canceled (If the insurance providers do not agree, the policy with the earliest date of application will be in force and the other contract will be canceled); or
(ii) Both contracts are additional coverage policies or both are Catastrophic Risk Protection policies, the contract with the earliest signature date on the application will be valid and the other contract on that crop in the county for that crop year will be canceled, unless both policies are with the same insurance provider and the insurance provider agrees otherwise or both policies are with different insurance providers and both insurance providers agree otherwise.
(2) No liability for indemnity or premium will attach to the contracts canceled as specified in paragraphs (d)(1)(i) and (ii) of this section.
(e) The person must repay all amounts received in violation of this section with interest at the rate contained in the contract (see § 407.9, section 22).
(f) A person whose contract with FCIC or with an insurance provider reinsured by FCIC under the Act has been terminated because of violation of the terms of the contract is not eligible to obtain crop insurance under the Act with FCIC or with an insurance provider reinsured by FCIC unless the person can show that the termination was improper and should not result in subsequent ineligibility.
(g) All applicants for insurance under the Act must advise the insurance provider, in writing at the time of application, of any previous applications for insurance or contracts of insurance under the Act within the last 5 years and the present status of any such applications or insurance.
§ 407.3 Premium rates, amounts of protection, and coverage levels.
(a) The Manager of FCIC shall establish premium rates, amounts of protection, and coverage levels for the insured crop that will be included in the actuarial documents on file in the agent’s office. Premium rates, amounts of protection, and coverage levels may be changed from year to year in accordance with the terms of the policy.
(b) At the time the application for insurance is made, the person must elect an amount of protection and a coverage level from among those contained in the actuarial documents for the crop year.
§ 407.4 OMB control numbers.
The information collection activity associated with this rule has been submitted to OMB for their review and approval.
§ 407.5 Creditors.
An interest of a person in an insured crop existing by virtue of a lien, mortgage, garnishment, levy, execution, bankruptcy, involuntary transfer or other similar interest shall not entitle the holder of the interest to any benefit under the contract.
§ 407.6 [Reserved]
§ 407.7 The contract.
(a) The insurance contract shall become effective upon the acceptance by FCIC or the insurance provider of a complete, duly executed application for insurance on a form prescribed or approved by FCIC.
(b) The contract shall consist of the accepted application, Area Risk Protection Insurance Basic Provisions, Crop Provisions, Special Provisions, Actuarial Documents, and any amendments, endorsements, or options thereto.
(c) Changes made in the contract shall not affect its continuity from year to year.
(d) No indemnity shall be paid unless the person complies with all terms and conditions of the contract.
(e) The forms required under this part and by the contract are available at the office of the insurance provider, or such other location as specified by FCIC, if applicable.
§ 407.8 The application and policy.
(a) Application for insurance, developed in accordance with standards established by FCIC, must be made by any person who wishes to participate in the program in order to cover such person’s share in the insured crop as landlord, owner-operator, tenant, or other crop ownership interest.
(1) No other person’s interest in the crop may be insured under the application.
(2) To obtain coverage, the application must be submitted to the insurance provider on or before the applicable sales closing date on file in the insurance provider’s local office.
(b) FCIC or the insurance provider may reject, no longer accept applications, or cancel existing insurance contracts upon the FCIC’s determination that the insurance risk is excessive. Such determination must be made not later than 15 days before the cancellation date for the crop and may be made on an area, county, state, or crop basis.
§ 407.9 Area risk protection insurance policy.
Area Risk Protection Insurance (ARPI) provides protection against widespread loss of revenue or widespread loss of yield in a county. Individual farm revenues and yields are not considered under ARPI and it is possible that your individual farm may experience reduced revenue or reduced yield and you do not receive an indemnity under ARPI. This is an insurance policy issued by FCIC, under the provisions of the Federal Crop Insurance Act (7 U.S.C. 1501-1524) (Act). All provisions of the policy and rights and responsibilities of the parties are specifically subject to the Act. The provisions of the policy may not be waived or modified in any way by us, your insurance agent, or any employee of USDA. FCIC procedures (handbooks, underwriting rules, manuals, memoranda, and bulletins), and published on the Risk Management Agency’s (RMA) website at www.rma.usda.gov or a successor website, will be used in the administration of this policy, including the adjustment of any loss or claim submitted under this policy. Throughout this policy, “you” and “your” refer to the insured shown on the accepted application and “we,” “us,” and “our” refer to FCIC. Unless the context indicates otherwise, the use of the plural form of a word includes the singular and the singular form of the word includes the plural. AGREEMENT TO INSURE: In return for the commitment to pay a premium, and subject to all of the provisions of this policy, we agree with you to provide the insurance as stated in this policy. If there is a conflict between the Act, the regulations in 7 CFR chapter IV, and FCIC procedures, the order of precedence is: (1) The Act; (2) the regulations; and (3) FCIC procedures. If there is a conflict between the policy provisions in 7 CFR part 407 and the administrative regulations in 7 CFR part 400, the policy provisions published at 7 CFR part 407 apply. The order of precedence for the policy is: (1) The Catastrophic Risk Protection Endorsement, as applicable; (2) Special Provisions; (3) actuarial documents; (4) the applicable Commodity Exchange Price Provisions; (5) the Crop Provisions; and (6) these Basic Provisions. Area Risk Protection Insurance (ARPI) provides protection against widespread loss of revenue or widespread loss of yield in a county. Individual farm revenues and yields are not considered under ARPI and it is possible that your individual farm may experience reduced revenue or reduced yield and not receive an indemnity under ARPI. This insurance policy is reinsured by FCIC under the provisions of Subtitle A of the Federal Crop Insurance Act (7 U.S.C. 1501-1524) (Act). All provisions of the policy and rights and responsibilities of the parties are specifically subject to the Act. The provisions of the policy may not be waived or varied in any way by us, our insurance agent or any other contractor or employee of ours, or any employee of USDA. We will use FCIC procedures (handbooks, underwriting rules, manuals, memoranda, and bulletins), published on the Risk Management Agency (RMA’s) website at www.rma.usda.gov or a successor website, in the administration of this policy, including the adjustment of any loss or claim submitted under this policy. In the event that we cannot pay your loss because we are insolvent or are otherwise unable to perform our duties under our reinsurance agreement with FCIC, FCIC will become your insurer, make all decisions in accordance with the provisions of this policy, including any loss payments, and be responsible for any amounts owed. No state guarantee fund will be liable for your loss. Throughout this policy, “you” and “your” refer to the insured shown on the accepted application and “we,” “us,” and “our” refer to the insurance provider providing insurance. Unless the context indicates otherwise, the use of the plural form of a word includes the singular and the singular form of the word includes the plural. AGREEMENT TO INSURE: In return for the commitment to pay a premium, and subject to all of the provisions of this policy, we agree with you to provide the insurance as stated in this policy. If there is a conflict between the Act, the regulations in 7 CFR chapter IV, and FCIC procedures, the order of precedence is: (1) The Act; (2) the regulations; and (3) FCIC procedures. If there is a conflict between the policy provisions in 7 CFR part 407 and the administrative regulations in 7 CFR part 400, the policy provisions in 7 CFR part 407 apply. The order of precedence among the policy is: (1) The Catastrophic Risk Protection Endorsement, as applicable; (2) Special Provisions; (3) actuarial documents; (4) Commodity Exchange Price Provisions; (5) the Crop Provisions; and (6) these Basic Provisions. Abandon. Failure to continue to care for the crop, or providing care so insignificant as to provide no benefit to the crop. Acreage report. A report required by section 8 of these Basic Provisions that contains, in addition to other required information, your report of your share of all acreage of an insured crop in the county, whether insurable or not insurable. Acreage reporting date. The date contained in the Special Provisions by which you are required to submit your acreage report. Act. Subtitle A of the Federal Crop Insurance Act (7 U.S.C. 1501-1524). Actuarial documents. The part of the policy that contains information for the crop year which is available for public inspection in your agent’s office and published on RMA’s website and which shows available plans of insurance, coverage levels, information needed to determine amounts of insurance, prices, premium rates, premium adjustment percentages, type (commodity types, classes, subclasses, intended uses), practice (irrigated practices, cropping practices, organic practices, intervals), insurable acreage, and other related information regarding crop insurance in the county. Additional coverage. A level of coverage greater than catastrophic risk protection. Administrative fee. An amount you must pay for catastrophic risk protection, and additional coverage for each crop year as specified in section 7 of these provisions, the Catastrophic Risk Protection Endorsement, or the Special Provisions, as applicable. Agricultural experts. Persons who are employed by the Cooperative Extension System or the agricultural departments of universities, or other persons approved by FCIC, whose research or occupation is related to the specific crop or practice for which such expertise is sought. Persons who have a personal or financial interest in you or the crop will not qualify as an agricultural expert. For example, contracting with a person for consulting would be considered to have a financial interest and a person who is a neighbor would be considered to have a personal interest. Application. The form required to be completed by you and accepted by us before insurance coverage will commence. This form must be completed and filed in your agent’s office not later than the sales closing date of the initial insurance year for each crop for which insurance coverage is requested. Area. The general geographical region in which the insured acreage is located, designated generally as a county but may be a smaller or larger geographical area as specified in the actuarial documents. Area Revenue Protection. A plan of insurance that provides protection against loss of revenue due to a county level production loss, a price decline, or a combination of both. This plan also includes upside harvest price protection, which increases your policy protection at the end of the insurance period if the harvest price is greater than the projected price and if there is a production loss. Area Revenue Protection with the Harvest Price Exclusion. A plan of insurance that provides protection against loss of revenue due to a county level production loss, price decline, or a combination of both. This plan does not provide upside harvest price protection. Area Risk Protection Insurance (ARPI). Insurance coverage based on an area, not an individual, yield or revenue amount. There are three plans of insurance available under ARPI: Area Revenue Protection, Area Revenue Protection with the Harvest Price Exclusion, and Area Yield Protection. Area Yield Protection. A plan of insurance that provides protection against loss of yield due to a county level production loss. This plan does not provide protection against loss of revenue or upside harvest price protection. Assignment of indemnity. A transfer of policy rights, made on our form, and effective when approved by us in writing, whereby you assign your right to an indemnity payment for the crop year only to creditors or other persons to whom you have a financial debt or other pecuniary obligation. Beginning farmer or rancher. An individual who has not actively operated and managed a farm or ranch in any state, with an insurable interest in a crop or livestock as an owner-operator, landlord, tenant, or sharecropper for more than five crop years, as determined in accordance with FCIC procedures. Any crop year’s insurable interest may, at your election, be excluded if earned while under the age of 18, while in full-time military service of the United States, or while in post-secondary education, in accordance with FCIC procedures. A person other than an individual may be eligible for beginning farmer or rancher benefits if there is at least one individual substantial beneficial interest holder and all individual substantial beneficial interest holders qualify as a beginning farmer or rancher. Buffer zone. Acreage designated in your organic plan that separates agricultural commodities grown under organic farming practices from those grown under non-organic farming practices. A buffer zone must be sufficient in size or other features, as stated in the National Organic Program published in 7 CFR part 205, to prevent or minimize the possibility of unintended contact by prohibited substances or organisms applied to adjacent land acres with an area that is part of the certified organic farming operation. Cancellation date. The calendar date specified in the Crop Provisions on which coverage for the crop will automatically renew unless canceled in writing by either you or us or terminated in accordance with the policy terms. Catastrophic risk protection (CAT). Coverage equivalent to 65 percent of yield coverage and 45 percent of price coverage, unless otherwise specified in the Special Provisions, and is the minimum level of coverage offered by FCIC, as specified in the actuarial documents for the crop, type, and practice. CAT is not available with Area Revenue Protection or Area Revenue Protection with the Harvest Price Exclusion. Catastrophic Risk Protection Endorsement. The part of the crop insurance policy that contains provisions of insurance that are specific to CAT. Certified organic acreage. Acreage in the certified organic farming operation that has been certified by a certifying agent as conforming to organic standards in accordance with the Organic Foods Production Act of 1990 (7 U.S.C. 6501 et seq.) and 7 CFR part 205. Certifying agent. A private or governmental entity accredited by the USDA Secretary of Agriculture for the purpose of certifying a production, processing or handling operation as organic. Class. A specific subgroup of commodity type. Code of Federal Regulations (CFR). The codification of general rules published in the Commodity. An agricultural good or product that has economic value. Commodity Exchange Price Provisions (CEPP). A part of the policy that is used for crops for which ARPI is available, unless otherwise specified. This document includes the information necessary to derive the projected and harvest price for the insured crop, as applicable. Commodity type. A specific subgroup of a commodity having a characteristic or set of characteristics distinguishable from other subgroups of the same commodity. Consent. Approval in writing by us allowing you to take a specific action. Contract. (See “Policy”) Contract change date. The calendar date, as specified in the Crop Provisions, by which changes to the policy, if any, will be made available in accordance with section 3 of these Basic Provisions. Conventional farming practice. A system or process that is necessary to produce a commodity, excluding organic farming practices. Cooperative Extension System. A nationwide network consisting of a state office located at each state’s land-grant university, and local or regional offices. These offices are staffed by one or more agricultural experts who work in cooperation with the National Institute of Food and Agriculture, and who provide information to agricultural producers and others. County. Any county, parish, political subdivision of a state, or other area specified on the actuarial documents shown on your accepted application, including acreage in a field that extends into an adjoining county if the county boundary is not readily discernible. Cover crop. A crop generally recognized by agricultural experts as agronomically sound for the area for erosion control or other purposes related to conservation or soil improvement, unless otherwise specified in the Special Provisions. A cover crop may be considered a second crop (see the definition of “second crop”). Credible data. Data of sufficient quality and quantity to be representative of the county. Crop. The insurable commodity as defined in the Crop Provisions. Cropping practice. A method of using a combination of inputs such as fertilizer, herbicide, and pesticide, and operations such as planting, cultivation, etc. to produce the insured crop. The insurable cropping practices are specified in the actuarial documents. Crop Provisions. The part of the policy that contains the specific provisions of insurance for each insured crop. Crop year. The period within which the insured crop is normally grown and designated by the calendar year in which the crop is normally harvested. Days. Calendar days. Delinquent debt. Has the same meaning as the term defined in 7 CFR part 400, subpart U. Dollar amount of insurance per acre. The guarantee calculated by multiplying the expected county yield by the projected price and by the protection factor. Your dollar amount of insurance per acre is shown on your Summary of Protection. Following release of the harvest price, your dollar amount of insurance may increase if Area Revenue Protection was purchased and the harvest price is greater than the projected price. Double crop. Producing two or more crops for harvest on the same acreage in the same crop year. Expected county revenue. The expected county yield multiplied by the projected price. Expected county yield. The yield, established in accordance with section 15, contained in the actuarial documents on which your coverage for the crop year is based. Farm management record. A contemporaneous record provided by you that documents your actual production recorded at the time of harvest, storing of the crop, or use of the crop for feed, and can be used to substantiate your actual production reported on the production report. FCIC. The Federal Crop Insurance Corporation, a wholly owned corporation within USDA. Final county revenue. The revenue determined by multiplying the final county yield by the harvest price with the result used to determine whether an indemnity will be due for Area Revenue Protection and Area Revenue Protection with the Harvest Price Exclusion, and released by FCIC at a time specified in the Crop Provisions. Final county yield. The yield, established in accordance with section 15, for each insured crop, type, and practice, used to determine whether an indemnity will be due for Area Yield Protection, and released by FCIC at a time specified in the Crop Provisions. Final planting date. The date contained in the actuarial documents for the insured crop by which the crop must be planted in order to be insured. Final policy protection. For Area Revenue Protection only, the amount calculated in accordance with section 12(e). First insured crop. With respect to a single crop year and any specific crop acreage, the first instance that a commodity is planted for harvest or prevented from being planted and is insured under the authority of the Act. For example, if winter wheat that is not insured is planted on acreage that is later planted to soybeans that are insured, the first insured crop would be soybeans. If the winter wheat was insured, it would be the first insured crop. FSA. The Farm Service Agency, an agency of the USDA, or a successor agency. FSA farm number. The number assigned to the farm by the local FSA office. Generally recognized. When agricultural experts or organic agricultural experts, as applicable, are aware of the production method or practice and there is no genuine dispute regarding whether the production method or practice allows the crop to make normal progress toward maturity. Good farming practices. The production methods utilized to produce the insured crop, type, and practice and allow it to make normal progress toward maturity, which are those generally recognized by agricultural experts or organic agricultural experts, depending on the practice, for the area. We may, or you may request us to, contact FCIC to determine if production methods will be considered “good farming practices.” Harvest price. A price determined in accordance with the CEPP and used to determine the final county revenue. Household. A domestic establishment including the members of a family (parents, brothers, sisters, children, spouse, grandchildren, aunts, uncles, nieces, nephews, first cousins, or grandparents, related by blood, adoption or marriage, are considered to be family members) and others who live under the same roof. Insurable interest. Your percentage of the insured crop that is at financial risk. Insurable loss. Damage for which coverage is provided under the terms of your policy, and for which you accept an indemnity payment. Insurance provider. A private insurance company that has been approved by FCIC to provide insurance coverage to producers participating in programs authorized by the Act. Insured. The named person as shown on the application accepted by us. This term does not extend to any other person having an insurable interest in the crop (e.g., a partnership, landlord, or any other person) unless specifically indicated on the accepted application. Insured crop. The crop in the county for which coverage is available under your policy as shown on the application accepted by us. Intended use. The expected end use or disposition of the commodity at the time the commodity is reported. Interval. A period of time designated in the actuarial documents. Irrigated practice. A method of producing a crop by which water, from an adequate water source, is artificially applied in sufficient amounts by appropriate and adequate irrigation equipment and facilities and at the proper times necessary to produce at least the (1) yield expected for the area; (2) yield used to establish the production guarantee or amount of insurance/coverage on the irrigated acreage planted to the commodity; or (3) producer’s established approved yield, as applicable. Acreage adjacent to water, such as but not limited to a pond, lake, river, stream, creek or brook, shall not be considered irrigated based solely on the proximity to the water. The insurable irrigation practices are specified in the actuarial documents. Liability. (See “Policy protection.”) Limited resource farmer. Has the same meaning as the term defined by USDA at http://lrftool.sc.egov.usda.gov/LRP_Definition.aspx. Loss limit factor. Unless otherwise specified in the Special Provisions a factor of .18 is used to calculate the payment factor. This factor represents the percentage of the expected county yield or expected county revenue at which no additional indemnity amount is payable. For example, if the expected county yield is 100 bushels and the final county yield is 18 bushels, then no additional indemnity is due even if the yield falls below 18 bushels. The total indemnity will never be more than 100 percent of the final policy protection. NAP. Noninsured Crop Disaster Assistance Program published in 7 CFR part 1437, administered by FSA. Native sod. Acreage that has no record of being tilled (determined in accordance with information collected and maintained by an agency of the USDA or other verifiable records that you provide and are acceptable to us) for the production of an annual crop on or before February 7, 2014, and on which the plant cover is composed principally of native grasses, grass-like plants, forbs, or shrubs suitable for grazing and browsing. Offset. The act of deducting one amount from another amount. Organic agricultural experts. Persons who are employed by the following organizations: Appropriate Technology Transfer for Rural Areas, Sustainable Agriculture Research and Education or the Cooperative Extension System, the agricultural departments of universities, or other persons approved by FCIC, whose research or occupation is related to the specific organic crop or practice for which such expertise is sought. Organic crop. A commodity that is organically produced consistent with section 2103 of the Organic Foods Act of 1990 (7 U.S.C. 6502). Organic farming practice. A system of plant production practices used on organic acreage and transitional acreage to produce an organic crop that is approved by a certifying agent in accordance with 7 CFR part 205. Organic plan. A written plan, in accordance with the National Organic Program published in 7 CFR part 205, that describes the organic farming practices that you and a certifying agent agree upon annually or at such other times as prescribed by the certifying agent. Organic practice. The insurable organic farming practices specified in the actuarial documents. Organic standards. Standards in accordance with the Organic Foods Production Act of 1990 (7 U.S.C. 6501 et seq.) and 7 CFR part 205. Payment factor. A factor no greater than 1.0 used to determine the amount of indemnity to be paid in accordance with section 12(g). Perennial crop. A plant, bush, tree or vine crop that has a life span of more than one year. Person. An individual, partnership, association, corporation, estate, trust, or other legal entity, and wherever applicable, a State or a political subdivision or agency of a State. “Person” does not include the United States Government or any agency thereof. Planted acreage. Except as otherwise specified in the Special Provisions, land in which seed, plants, or trees have been placed, appropriate for the insured crop and planting method, at the correct depth, into a seedbed that has been properly prepared for the planting method and production practice in accordance with good farming practices for the area. Policy. The agreement between you and us to insure a commodity and consisting of the accepted application, these Basic Provisions, the Crop Provisions, the Special Provisions, the CEPP, other applicable endorsements or options, the actuarial documents for the insured commodity, the CAT Endorsement, if applicable, and the applicable regulations published in 7 CFR chapter IV. Insurance for each commodity in each county will constitute a separate policy. Policy protection. The liability amount calculated in accordance with section 6(f) unless otherwise specified in the Special Provisions. Practice. Production methodologies used to produce the insured crop consisting of unique combinations of irrigated practice, cropping practice, organic practice, and interval as shown on the actuarial documents as insurable. Premium billing date. The earliest date upon which you will be billed for insurance coverage based on your acreage report. The premium billing date is contained in the actuarial documents. Production record. A written record that documents your actual production reported on the production report. The record must be an acceptable verifiable record or an acceptable farm management record as authorized by FCIC procedures. Production report. A written report provided by you showing your annual production in accordance with section 8. The report contains yield information for the current year, including planted acreage and production. This report must be supported by acceptable production records. Production reporting date. The date contained in the actuarial documents by which you are required to submit your production report. Prohibited substance. Any biological, chemical, or other agent that is prohibited from use or is not included in the organic standards for use on any certified organic, transitional or buffer zone acreage. Lists of such substances are contained at 7 CFR part 205. Projected price. A price for each crop, type, and practice as shown in the actuarial documents, as applicable, determined in accordance with the CEPP, Special Provisions or the Crop Provisions, as applicable. Protection factor (PF). The percentage you choose that is used to calculate the dollar amount of insurance per acre and policy protection. Replanted crop. The same commodity replanted on the same acreage as the first insured crop for harvest in the same crop year. ARPI does not have a replant provision, therefore, it is only used for first and second crop determinations. RMA. Risk Management Agency, an agency within USDA. RMA’s website. A website hosted by RMA and located at www.rma.usda.gov or a successor website. Sales closing date. The date contained in the actuarial documents by which an application must be filed and the last date by which you may change your crop insurance coverage for a crop year. Second crop. With respect to a single crop year, the next occurrence of planting any agricultural commodity for harvest following a first insured crop on the same acreage. The second crop may be the same or a different agricultural commodity as the first insured crop, except the term does not include a replanted crop. If following a first insured crop, a cover crop that is planted on the same acreage and harvested for grain or seed, is considered a second crop. A crop that is covered by NAP or receives other USDA benefits associated with forage crops is considered a second crop. A crop meeting the conditions in this definition is considered a second crop regardless of whether it is insured. Share. Your insurable interest in the insured crop as an owner, operator, or tenant. Special Provisions. The part of the policy that contains specific provisions of insurance for each insured crop that may vary by geographic area, and is available for public inspection in your agent’s office and published on RMA’s website. State. The state shown on your accepted application. Subclass. A specific subgroup of class. Subsidy. The portion of the total premium that FCIC will pay in accordance with the Act. Subsidy factor. The percentage of the total premium paid by FCIC as a subsidy. Substantial beneficial interest. An interest held by any person of at least 10 percent in you (e.g., there are two partnerships that each have a 50 percent interest in you and each partnership is made up of two individuals, each with a 50 percent share in the partnership. In this case, each individual would be considered to have a 25 percent interest in you, and both the partnerships and the individuals would have a substantial beneficial interest in you. The spouses of the individuals would not be considered to have a substantial beneficial interest unless the spouse was one of the individuals that made up the partnership. However, if each partnership is made up of six individuals with equal interests, then each would only have an 8.33 percent interest in you and although the partnership would still have a substantial beneficial interest in you, the individuals would not for the purposes of reporting in section 2). The spouse of any individual applicant or individual insured will be presumed to have a substantial beneficial interest in the applicant or insured unless the spouses can prove they are legally separated or otherwise legally separate under the applicable state dissolution of marriage laws. Any child of an individual applicant or individual insured will not be considered to have a substantial beneficial interest in the applicant or insured unless the child has a separate legal interest in such person. Summary of protection. Our statement to you specifying the insured crop, dollar amount of insurance per acre, policy protection, premium and other information obtained from your accepted application, acreage report, and the actuarial documents. Sustainable farming practice. A system or process for producing a commodity, excluding organic farming practices, that is necessary to produce the crop and is generally recognized by agricultural experts for the area to conserve or enhance natural resources and the environment. Tenant. A person who rents land from another person for a share of the crop or a share of the proceeds of the crop (see the definition of “share” above). Termination date. The calendar date contained in the Crop Provisions upon which your insurance ceases to be in effect because of nonpayment of any amount due us under the policy. Tilled. The termination of existing plants by plowing, disking, burning, application of chemicals, or by other means to prepare acreage for the production of a crop. Total premium. The amount of premium before subsidy, calculated in accordance with section 7(d)(1). Transitional acreage. Acreage in transition to organic where organic farming practices are being followed, but the acreage does not yet qualify as certified organic acreage. Trigger revenue. The revenue amount calculated in accordance with section 12(b). Trigger yield. The yield amount calculated in accordance with section 12(c). Type. Categories of the insured crop consisting of unique combinations of commodity type, class, subclass, and intended use as shown on the actuarial documents as insurable. Upside harvest price protection. Coverage provided automatically under the Area Revenue Protection plan of insurance. This coverage increases your final policy protection when the harvest price is greater than the projected price. This coverage is not available under either the Area Revenue Protection with the Harvest Price Exclusion or the Area Yield Protection plans of insurance. USDA. United States Department of Agriculture. Verifiable record. A contemporaneous record from a disinterested third party that substantiates your actual production reported on the production report. The record must be a document or evidence from a disinterested third party that is accurate and can be validated or verified by us. Veteran farmer or rancher. (1) An individual who has served active duty in the United States Army, Navy, Marine Corps, Air Force, or Coast Guard, including the reserve components; was discharged or released under conditions other than dishonorable; and: (i) Has not operated a farm or ranch; (ii) Has operated a farm or ranch for not more than 5 years; or (iii) First obtained status as a veteran during the most recent 5-year period. (2) A person, other than an individual, may be eligible for veteran farmer or rancher benefits if all substantial beneficial interest holders qualify individually as a veteran farmer or rancher in accordance with paragraph (1) of this definition; except in cases in which there is only a married couple, then a veteran and non-veteran spouse are considered a veteran farmer or rancher. Void. When the policy is considered not to have existed for a crop year. Volatility factor. A measure of variation of price over time found in the actuarial documents. Volunteer crop. A crop that was planted in a previous crop year on the applicable acreage or drifted from other acreage, successfully self-seeded, and is growing this crop year on the applicable acreage without being intentionally sown or managed. (a) This is a continuous policy and will remain in effect for each crop year following the acceptance of the original application until canceled by you in accordance with the terms of the policy or terminated by operation of the terms of the policy or by us. In accordance with section 3, FCIC may change the coverage provided from year to year. (b) The following information must be included on your application for insurance or your application will not be accepted and no coverage will be provided: (1) Your election of Area Revenue Protection, Area Revenue Protection with the Harvest Price Exclusion, or Area Yield Protection; (2) The crop with all type and practice combinations insured as shown on the actuarial documents; (3) Your elected coverage level; (4) Your elected protection factor; (5) Identification numbers for you as follows: (i) You must include your social security number (SSN) if you are an individual (if you are an individual applicant operating as a business, you must provide an employer identification number (EIN) and you must also provide your SSN); or (ii) You must include your EIN if you are a person other than an individual; (6) Identification numbers for all persons who have a substantial beneficial interest in you: (i) The SSN for individuals; or (ii) The EIN for persons other than individuals and the SSNs for all individuals that comprise the person with the EIN if such individuals also have a substantial beneficial interest in you; and (7) All other information required on the application to insure the crop. (c) With respect to SSNs or EINs required on your application: (1) Your application will not be accepted and no insurance will be provided for the year of application if the application does not contain your SSN or EIN. If your application contains an incorrect SSN or EIN for you, your application will be considered not to have been accepted, no insurance will be provided for the year of application and for any subsequent crop years, as applicable, and such policies will be void if: (i) Such number is not corrected by you; or (ii) You correct the SSN or EIN but: (A) You cannot prove that any error was inadvertent (Simply stating the error was inadvertent is not sufficient to prove the error was inadvertent); or (B) It is determined that the incorrect number would have allowed you to obtain disproportionate benefits under the crop insurance program, you are determined to be ineligible for insurance or you could avoid an obligation or requirement under any State or Federal law; (2) With respect to persons with a substantial beneficial interest in you: (i) The insurance coverage for all crops included on your application will be reduced proportionately by the percentage interest in you of persons with a substantial beneficial interest in you (presumed to be 50 percent for spouses of individuals) if the SSNs or EINs of such persons are included on your application, the SSNs or EINs are correct, and the persons with a substantial beneficial interest in you are ineligible for insurance; (ii) Your policies for all crops included on your application, and for all applicable crop years, will be void if the SSN or EIN of any person with a substantial beneficial interest in you is incorrect or is not included on your application and: (A) Such number is not corrected or provided by you, as applicable; (B) You cannot prove that any error or omission was inadvertent (Simply stating the error or omission was inadvertent is not sufficient to prove the error or omission was inadvertent); or (C) Even after the correct SSN or EIN is provided by you, it is determined that the incorrect or omitted SSN or EIN would have allowed you to obtain disproportionate benefits under the crop insurance program, the person with a substantial beneficial interest in you is determined to be ineligible for insurance, or you or the person with a substantial beneficial interest in you could avoid an obligation or requirement under any State or Federal law; or (iii) Except as provided in sections 2(c)(2)(ii)(B) and (C), your policies will not be voided if you subsequently provide the correct SSN or EIN for persons with a substantial beneficial interest in you and the persons are eligible for insurance; (d) When any of your policies are void under section 2(c): (1) You must repay any indemnity that may have been paid for all applicable crops and crop years; (2) Even though the policies are void, you will still be required to pay an amount equal to 20 percent of the premium that you would otherwise be required to pay; and (3) If you previously paid premium or administrative fees, any amount in excess of the amount required in section 2(d)(2) will be returned to you. (e) Notwithstanding any of the provisions in this section, you may be subject to civil, criminal or administrative sanctions if you certify to an incorrect SSN or EIN or any other information under this policy. (f) If any of the information regarding persons with a substantial beneficial interest in you, changes: (1) After the sales closing date for the previous crop year, you must revise your application by the sales closing date for the current crop year to reflect the correct information; or (2) Less than 30 days before the sales closing date for the current crop year, you must revise your application by the sales closing date for the next crop year; (3) And you fail to provide the required revisions, the provisions in section 2(c)(2) will apply; and (g) If you are, or a person with a substantial beneficial interest in you is, not eligible to obtain an SSN or EIN, whichever is required, you must request an assigned number for the purposes of this policy from us: (1) A number will be provided only if you can demonstrate you are, or a person with a substantial beneficial interest in you is, eligible to receive Federal benefits; (2) If a number cannot be provided for you in accordance with section (2)(g)(1), your application will not be accepted; or (3) If a number cannot be provided for any person with a substantial beneficial interest in you in accordance with section 2(g)(1), the amount of coverage for all crops on the application will be reduced proportionately by the percentage interest of such person in you. (h) After acceptance of the application, you may not cancel this policy for the initial crop year unless you choose to insure the entire crop under another Federally reinsured plan of insurance with the same insurance provider on or before the sales closing date. After the first year, the policy will continue in force for each succeeding crop year unless canceled, voided or terminated as provided in this section. (i) Either you or we may cancel this policy after the initial crop year by providing written notice to the other on or before the cancellation date shown in the Crop Provisions. (j) Any amount owed to us for any policy authorized under the Act will be offset from any indemnity due you for this or any other crop insured with us under the authority of the Act. (1) Even if your claim has not yet been paid, you must still pay the premium and administrative fee on or before the termination date for you to remain eligible for insurance. (2) If we offset any amount due us from an indemnity owed to you, the date of payment for the purpose of determining whether you have a delinquent debt will be the date FCIC publishes the final county yield for the applicable crop year. (3) For this agricultural commodity policy, your premium and administrative fees will be offset from any indemnity payment due to you even if it is prior to the premium billing date. (4) For any other agricultural commodity policy insured with us and it is: (i) Prior to the premium billing date, and you agree, your premium and administrative fees will be offset from any indemnity payment due to you; or (ii) On or after the premium billing date, your premium and administrative fees will be offset from any indemnity payment due to you. (k) A delinquent debt for any policy will make you ineligible to obtain crop insurance authorized under the Act for any subsequent crop year and result in termination of all policies in accordance with section 2(k)(2). (1) With respect to ineligibility: (i) Ineligibility for crop insurance will be effective on: (A) The date that a policy was terminated in accordance with section 2(k)(2) for the crop for which you failed to pay premium, an administrative fee, or any related interest owed, as applicable; (B) The payment due date contained in any notification of indebtedness for overpaid indemnity and any other amounts due, including but not limited to, premium billed with a due date after the termination date for the crop year in which premium is earned, if you fail to pay the amount owed, including any related interest owed, as applicable, by such due date; or (C) The termination date for the crop year prior to the crop year in which a scheduled payment is due under a written payment agreement if you fail to pay the amount owed by any payment date in any agreement to pay the debt. (ii) If you are ineligible and a policy has been terminated in accordance with section 2(k)(2), you will not receive any indemnity, and such ineligibility and termination of the policy may affect your eligibility for benefits under other USDA programs. Any indemnity that may be owed for the policy before it has been terminated will remain owed to you, but may be offset in accordance with section 2(j), unless your policy was terminated in accordance with sections 2(k)(2)(i)(A), (B), or (D). (2) With respect to termination: (i) Termination will be effective on: (A) For a policy with unpaid administrative fees or premiums, the termination date immediately subsequent to the premium billing date for the crop year (For policies for which the sales closing date is prior to the termination date, such policies will terminate for the current crop year even if insurance attached prior to the termination date. Such termination will be considered effective as of the sales closing date and no insurance will be considered to have attached for the crop year and no indemnity will be owed); (B) For a policy with other amounts due, including but not limited to, premium billed with a due date after the termination date for the crop year in which premium is earned, the termination date immediately following the date you have a delinquent debt (For policies for which the sales closing date is prior to the termination date, such policies will terminate for the current crop year even if insurance attached prior to the termination date. Such termination will be considered effective as of the sales closing date and no insurance will be considered to have attached for the crop year and no indemnity will be owed); (C) For all other policies that are issued by us under the authority of the Act, the termination date that coincides with the termination date for the policy with the delinquent debt, or if there is no coincidental termination date, the termination date immediately following the date you become ineligible; or (D) For execution of a written payment agreement and failure to make any scheduled payment, the termination date for the crop year prior to the crop year in which you failed to make the scheduled payment (for this purpose only, the crop year will start the day after the termination date and end on the next termination date, e.g., if the termination date is November 30 and you fail to make a payment on November 15, 2019, your policy will terminate on November 30, 2018, for the 2019 crop year). (ii) For all policies terminated under section 2(k)(2)(i)(A), (B), or (D), any indemnities paid subsequent to the termination date must be repaid. (iii) Once the policy is terminated, it cannot be reinstated for the current crop year unless: (A) The termination was in error; (B) The Administrator of the Risk Management Agency, at his or her sole discretion, determines that the following conditions are met: (1) In accordance with 7 CFR part 400, subpart U, and FCIC procedures, you provide documentation that your inadvertent failure to pay your debt is due to an unforeseen or unavoidable event or other extenuating circumstances that created the inadvertent failure for you to make timely payment; (2) You remit full payment of the delinquent debt owed to us or FCIC with your request submitted in accordance with section 2(k)(2)(iii)(B)(3); and (3) You submit a written request for reinstatement of your policy to us no later than 60 days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in the notice to you of the amount due, if applicable. (i) If authorization for reinstatement, as defined in 7 CFR part 400, subpart U, is granted, your policies will be reinstated effective at the beginning of the crop year for which you were determined ineligible, and you will be entitled to all applicable benefits under such policies, provided you meet all eligibility requirements and comply with the terms of the policy; and (ii) There is no evidence of fraud or misrepresentation; or (C) We determine that, in accordance with 7 CFR part 400, subpart U, and FCIC procedures, the following are met: (1) You can demonstrate: (i) You made timely payment for the amount of premium owed but you inadvertently omitted some small amount, such as the most recent month’s interest or a small administrative fee; (ii) The amount of the payment was clearly transposed from the amount that was otherwise due (For example, you owed $892 but you paid $829); (iii) You timely made the full payment of the amount owed but the delivery of that payment was delayed, and was postmarked no more than seven calendar days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in a notice to you of an amount due, as applicable; or (iv) For previously executed written payment agreements, you made the full payment of the scheduled payment amount owed within 15 calendar days after the missed payment date. (2) You remit full payment of the delinquent debt owed to us; and (3) You submit a written request for reinstatement of your policy to us in accordance with 7 CFR part 400, subpart U, and applicable procedures no later than 30 days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in the notice to you of the amount due, if applicable; and (4) If authorization for reinstatement, as defined in 7 CFR part 400, subpart U, is granted, your policies will be reinstated effective at the beginning of the crop year for which you were determined ineligible, and you will be entitled to all applicable benefits under such policies, provided you meet all eligibility requirements and comply with the terms of the policy; and (5) There is no evidence of fraud or misrepresentation. (iv) A determination made under: (A) Section 2(k)(2)(iii)(B) may only be appealed to the National Appeals Division in accordance with 7 CFR part 11; and (B) Section 2(k)(2)(iii)(C) may only be appealed in accordance with section 23. (3) To regain eligibility, you must: (i) Repay the delinquent debt in full; (ii) Execute a written payment agreement in accordance with 7 CFR part 400, subpart U, and make payments in accordance with the agreement; or (iii) Have your debts discharged in bankruptcy. (4) If you are determined to be ineligible under section 2(k), persons with a substantial beneficial interest in you may also be ineligible until you become eligible again. (l) In cases where there has been a death, disappearance, judicially declared incompetence, or dissolution of any insured person: (1) If any married insured dies, disappears, or is judicially declared incompetent, the insured on the policy will automatically convert to the name of the spouse if: (i) The spouse was included on the policy as having a substantial beneficial interest in the insured; and (ii) The spouse has a share of the crop. (2) The provisions in section 2(l)(3) will only be applicable if: (i) Any partner, member, shareholder, etc., of an insured entity dies, disappears, or is judicially declared incompetent, and such event automatically dissolves the entity; or (ii) An individual whose estate is left to a beneficiary other than a spouse or left to the spouse and the criteria in section 2(l)(1) are not met, dies, disappears, or is judicially declared incompetent. (3) If the death, disappearance, or judicially declared incompetence occurred: (i) More than 30 days before the cancellation date, the policy is automatically canceled as of the cancellation date and a new application must be submitted; or (ii) Thirty days or less before the cancellation date, or on after the cancellation date, the policy will continue in effect through the crop year immediately following the cancellation date and be automatically canceled as of the cancellation date immediately following the end of the insurance period for the crop year, unless canceled by the cancellation date prior to the start of the insurance period: (A) A new application for insurance must be submitted on or before the sales closing date for coverage for the subsequent crop year; and (B) Any indemnity will be paid to the person or persons determined to be beneficially entitled to the payment provided such person or persons comply with all policy provisions and timely pays the premium. (4) If any insured entity is dissolved for reasons other than death, disappearance, or judicially declared incompetence: (i) Before the cancellation date, the policy is automatically canceled as of the cancellation date and a new application must be submitted; or (ii) On or after the cancellation date, the policy will continue in effect through the crop year immediately following the cancellation date and be automatically canceled as of the cancellation date immediately following the end of the insurance period for the crop year, unless canceled by the cancellation date prior to the start of the insurance period. (A) A new application for insurance must be submitted on or before the sales closing date for coverage for the subsequent crop year; and (B) Any indemnity will be paid to the person or persons determined to be beneficially entitled to the payment provided such person or persons comply with all policy provisions and timely pays the premium. (5) If section 2(k)(2) or (4) applies, a remaining member of the insured person or the beneficiary is required to report to us the death, disappearance, judicial incompetence, or other event that causes dissolution of the entity not later than the next cancellation date, except if section 2(k)(3)(ii) applies, notice must be provided by the cancellation date for the next crop year. (m) We may cancel your policy if no premium is earned for 3 consecutive years. (n) The cancellation and termination dates are contained in the Crop Provisions. (o) Any person may sign any document relative to crop insurance coverage on behalf of any other person covered by such a policy, provided that the person has a properly executed power of attorney or such other legally sufficient document authorizing such person to sign. You are still responsible for the accuracy of all information provided on your behalf and may be subject to the consequences in section 8(g), and any other consequences, including administrative, criminal or civil sanctions, if any information has been misreported. (p) If voidance, cancellation or termination of insurance coverage occurs for any reason, including but not limited to indebtedness, suspension, debarment, disqualification, cancellation by you or us or your policy is voided due to a conviction of the controlled substance provisions of the Food Security Act of 1985 or Title 21, a new application must be filed for the crop. (1) Insurance coverage will not be provided if you are ineligible under the contract or under any Federal statute or regulation. (2) Since applications for crop insurance cannot be accepted after the sales closing date, if you make any payment, or you otherwise become eligible, after the sales closing date, you cannot apply for insurance until the next crop year. For example, for the 2018 crop year, if crop A, with a termination date of October 31, 2018, and crop B, with a termination date of March 15, 2019, are insured and you do not pay the premium for crop A by the termination date, you are ineligible for crop insurance as of October 31, 2018, and crop A’s policy is terminated as of that date. Crop B’s policy does not terminate until March 15, 2019, and an indemnity for the 2018 crop year may still be owed. You will not be eligible to apply for crop insurance for any crop until after the amounts owed are paid in full or you have your debts discharged in bankruptcy. (a) We may change the terms and conditions of this policy from year to year. (b) Any changes in policy provisions, the CEPP, amounts of insurance, expected county yields, premium rates, and program dates can be viewed on RMA’s website not later than the contract change date contained in the Crop Provisions. We may only revise this information after the contract change date to correct obvious errors (e.g., the expected county revenue for a county was announced at $2,500 per acre instead of $250 per acre). (c) After the contract change date, all changes specified in section 3(b) will also be available upon request from your crop insurance agent. (d) Not later than 30 days prior to the cancellation date for the insured crop you will be notified, in accordance with section 20, a copy of the changes to the Basic Provisions, Crop Provisions, CEPP, if applicable, and Special Provisions. (e) Acceptance of all the changes will be conclusively presumed in the absence of notice from you to change or cancel your insurance coverage. (a) The insured crop will be that shown on your accepted application and as specified in the Crop Provisions or Special Provisions, and must be grown on insurable acreage. (b) A crop which will NOT be insured will include, but will not be limited to, any crop: (1) That is not grown on planted acreage; (2) That is a type not generally recognized for the area; (3) For which the information necessary for insurance (projected price, expected county yield, premium rate, etc.) is not included in the actuarial documents; (4) That is a volunteer crop; (5) Planted following the same crop on the same acreage and the first planting of the crop has been harvested in the same crop year unless specifically permitted by the Crop Provisions or the Special Provisions (For example, the second planting of grain sorghum would not be insurable if grain sorghum had already been planted and harvested on the same acreage during the crop year); (6) That is planted for experimental purposes; or (7) That is used solely for wildlife protection or management. If the lease states that specific acreage must remain unharvested, only that acreage is uninsurable. If the lease specifies that a percentage of the crop must be left unharvested, your share will be reduced by such percentage. (c) Although certain policy documents may state that a specific crop, type, or practice is not insurable, it does not mean all other crops, types, or practices are insurable. To be insurable, the use of such crop, type, or practice must be a good faming practice, have been widely used in the county, and meet all the conditions in the Basic Provisions, the Crop Provisions, Special Provisions, and the actuarial documents. (a) Except as provided in section 5(c), the insurable acreage is all of the acreage of the insured crop for which a premium rate is provided by the actuarial documents, in which you have a share, and which is planted in the county listed on your accepted application. The dollar amount of insurance per acre, amount of premium, and indemnity will be calculated separately for each crop, type, and practice shown on the actuarial documents. (1) The acreage must have been planted and harvested (grazing is not considered harvested for the purposes of this section) or insured (excluding pasture, rangeland, and forage, vegetation and rainfall insurance or any other specific policy listed in the Special Provisions) in at least one of the three previous crop years unless: (i) Such acreage was not planted: (A) In at least two of the three previous crop years to comply with any other USDA program; (B) Due to the crop rotation, the acreage would not have been planted in the previous three years (e.g., a crop rotation of corn, soybeans, and alfalfa; and the alfalfa remained for four years before the acreage was planted to corn again); or (C) Because a perennial crop was on the acreage in at least two of the previous three crop years; (ii) Such acreage constitutes five percent or less of the insured planted acreage of the crop, type and practice as shown on the actuarial documents in the county; (iii) Such acreage was not planted or harvested because it was pasture or rangeland and the crop to be insured is also pasture or rangeland; or (iv) The Crop Provisions or Special Provisions specifically allow insurance for such acreage. (b) Only the acreage planted to the insured crop on or before the final planting date, as shown in the actuarial documents, and reported by the acreage reporting date and physically located in the county shown on your accepted application will be insured. (c) We will not insure any acreage (and any uninsured acreage and production from uninsured acreage will not be included for the purposes of establishing the final county yield): (1) Where the crop was destroyed or put to another use during the crop year for the purpose of conforming with, or obtaining a payment under, any other program administered by the USDA; (2) Where we determine you have failed to follow good farming practices for the insured crop; (3) Where the conditions under which the crop is planted are not generally recognized for the area (for example, where agricultural experts determine that planting a non-irrigated corn crop after a failed small grain crop on the same acreage in the same crop year is not appropriate for the area); (4) Of a second crop, if you elect not to insure such acreage when an indemnity for a first insured crop may be subject to reduction in accordance with the provisions of section 13 and you intend to collect an indemnity payment that is equal to 100 percent of the insurable loss for the first insured crop acreage. This election must be made for all first insured crop acreage that may be subject to an indemnity reduction if the first insured crop is insured under this policy, or on a first insured crop unit basis if the first insured crop is not insured under this policy (e.g., if the first insured crop under this policy consists of 40 acres, or the first insured crop unit insured under another policy contains 40 planted acres, then no second crop can be insured on any of the 40 acres). In this case: (i) If the first insured crop is insured under ARPI, you must provide written notice to us of your election not to insure acreage of a second crop by the acreage reporting date for the second crop if it is insured under ARPI, or before planting the second crop if it is insured under any other policy; (ii) If the first insured crop is not insured under ARPI, at the time the first insured crop acreage is released by us or another insurance provider who insures the first insured crop (if no acreage in the first insured crop unit is released, this election must be made by the earlier of acreage reporting date for the second crop or when you sign the claim for the first insured crop); (iii) If you fail to provide a notice as specified in section 5(c)(5)(i) or 5(c)(5)(ii), the second crop acreage will be insured in accordance with applicable policy provisions and you must repay any overpaid indemnity for the first insured crop; (iv) In the event a second crop is planted and insured with a different insurance provider, or planted and insured by a different person, you must provide written notice to each insurance provider that a second crop was planted on acreage on which you had a first insured crop; and (v) You must report the crop acreage that will not be insured on the applicable acreage report; and (5) Of a crop planted following a second crop or following an insured crop that is prevented from being planted after a first insured crop, unless it is a practice that is generally recognized by agricultural experts or organic agricultural experts for the area to plant three or more crops for harvest on the same acreage in the same crop year, and additional coverage insurance provided under the authority of the Act is offered for the third or subsequent crop in the same crop year. Insurance will only be provided for a third or subsequent crop as follows: (i) You must provide records acceptable to us that show: (A) You have produced and harvested the insured crop following two other crops harvested on the same acreage in the same crop year in at least two of the last four years in which you produced the insured crop; or (B) The applicable acreage has had three or more crops produced and harvested on it in the same crop year in at least two of the last four years in which the insured crop was grown on the acreage; and (ii) The amount of insurable acreage will not exceed 100 percent of the greatest number of acres for which you provide the records required in section 5(c)(5)(i). (d) Except as provided in section 5(e), and in accordance with section 5(f), in the states of Iowa, Minnesota, Montana, Nebraska, North Dakota, or South Dakota, native sod acreage may be insured if the requirements of section 5(a) have been met but will: (1) Notwithstanding the provisions in section 6, receive a liability that is based on 65 percent of the protection factor; and (2) For additional coverage policies, receive a premium subsidy that is 50 percentage points less than would otherwise be provided on acreage not qualifying as native sod. If the premium subsidy applicable to these acres is less than 50 percent before the reduction, you will receive no premium subsidy. (e) Section 5(d) is not applicable to cumulative native sod acreage that is five acres or less in the county. (f) Section 5(d) is applicable during the first 4 crop years of planting on native sod acreage that has been tilled beginning on February 8, 2014, and ending on December 20, 2018. Section 5(d) is applicable during 4 cumulative crop years of insurance within the first 10 crop years after initial tillage on native sod acreage tilled after December 20, 2018. (a) For all acreage of the insured crop in the county, you must select the same plan of insurance (e.g., all Area Revenue Protection, all Area Revenue Protection with the Harvest Price Exclusion, or all Area Yield Protection), if such plans are available on the actuarial documents. (b) You must choose a protection factor: (1) Unless otherwise specified in the Special Provisions from a range of 80 percent to 120 percent; (2) As a whole percentage from amounts specified; and (3) For each crop, type, and practice (you may choose a different protection factor for each crop, type, and practice). (c) You may select any coverage level shown on the actuarial documents for each crop, type, and practice. (1) For Area Revenue Protection and Area Revenue Protection with the Harvest Price Exclusion: (i) CAT level of coverage is not available; and (ii) With respect to additional level of coverage, you may select any coverage level specified in the actuarial documents for each crop, type, and practice. For example: You may choose a 75 percent coverage level for one crop, type, and practice (such as corn irrigated practice) and a 90 percent coverage level for another crop, type, and practice (corn non-irrigated practice). (2) For Area Yield Protection: (i) CAT level of coverage is available, and you may select the CAT level of coverage for any crop, type, and practice; (ii) With respect to additional level of coverage, you may select any coverage level specified in the actuarial documents for each crop, type, and practice. For example: You may choose a 75 percent coverage level for one crop, type, and practice (corn irrigated practice) and a 90 percent coverage level for another crop, type, and practice (corn non-irrigated practice); and (iii) You may have CAT level of coverage on one type and practice shown on the actuarial documents for the crop, and additional coverage on another type and practice for the same crop. You may also have different additional levels of coverage by type and practice. (d) You may change the plan of insurance, protection factor, or coverage level, for the following crop year by giving written notice to us not later than the sales closing date for the insured crop. (e) Since this is a continuous policy, if you do not select a new plan of insurance, protection factor, and coverage level on or before the sales closing date, we will assign the same plan of insurance, protection factor, and coverage level as the previous year. (f) Policy protection for ARPI plans of insurance is calculated as follows: (1) Multiply the dollar amount of insurance per acre for each crop, type, and practice by the number of acres insured for such crop, type and practice; and (2) Multiply the result of paragraph (1) by your share. (g) If the projected price cannot be calculated for the current crop year under the provisions contained in the CEPP and you previously chose Area Revenue Protection or Area Revenue Protection with the Harvest Price Exclusion: (1) Area Revenue Protection and Area Revenue Protection with the Harvest Price Exclusion will not be provided and you will automatically be covered under the Area Yield Protection plan of insurance for the current crop year unless you cancel your coverage by the cancellation date or change your plan of insurance by the sales closing date; (2) Notice of availability of the projected price will be provided on RMA’s website by the date specified in the applicable projected price definition contained in the CEPP; (3) The projected price will be determined by FCIC and will be released by the date specified in the applicable projected price definition contained in the CEPP; and (4) Your coverage will automatically revert back to Area Revenue Protection or Area Revenue Protection with the Harvest Price Exclusion, whichever is applicable, for the next crop year that revenue protection is available unless you cancel your coverage by the cancellation date or change your plan of insurance by the sales closing date. (a) The administrative fee: (1) For CAT level of coverage will be an amount specified in the CAT Endorsement or the Special Provisions, as applicable; (2) For additional levels of coverage is $30, or an amount specified in the Special Provisions, as applicable; (3) Is payable to us on the premium billing date for the crop; (4) Must be paid no later than the time premium is due or the amount will be considered a delinquent debt; (5) If you select coverage in accordance with section 6(c)(2)(iii): (i) Will be charged for both CAT and additional level of coverage if a producer elects both for the crop in the county; but (ii) Will not be more than one additional and one CAT administrative fee no matter how many different coverage levels you choose for different type and practice combinations you insure for the crop in the county; (6) Will be waived if you request it and: (i) You qualify as a beginning farmer or rancher, or veteran farmer or rancher; (ii) You qualify as a limited resource farmer; or (iii) You were insured prior to the 2005 crop year or for the 2005 crop year and your administrative fee was waived for one or more of those crop years because you qualified as a limited resource farmer under a policy definition previously in effect, and you remain qualified as a limited resource farmer under the definition that was in effect at the time the administrative fee was waived; (7) Will not be required if you file a bona fide zero acreage report on or before the acreage reporting date for the crop. If you falsely file a zero acreage report you may be subject to criminal, civil and administrative sanctions; and (8) If not paid when due, may make you ineligible for crop insurance and certain other USDA benefits. (b) The premium is based on the policy protection calculated in section 6(f). (c) The information needed to determine the premium rate and any premium adjustment percentages that may apply are contained in the actuarial documents. (d) To calculate the premium and subsidy amounts for ARPI plans of insurance: (1) Multiply your policy protection from section 6(f) by the applicable premium rate and any premium adjustment percentages that may apply; (2) Multiply the result of paragraph (1) by the applicable subsidy factor (This is the amount of premium FCIC will pay); (3) Subtract the result of paragraph (2) from the result of paragraph (1) to calculate the amount of premium you will pay. (e) The amount of premium calculated in accordance with section 7(d)(3) is earned and payable at the time coverage begins. You will be billed for such premium and applicable administrative fees not earlier than the premium billing date specified in the actuarial documents. (f) If the amount of premium calculated in accordance with section 7(d)(3) and administrative fees you are required to pay for any acreage exceeds the amount of policy protection for the acreage, coverage for those acres will not be provided (No premium or administrative fee will be due and no indemnity will be paid for such acreage). (g) Premium or administrative fees owed by you will be offset from an indemnity due you in accordance with section 2(j). (h) If you qualify as a beginning farmer or rancher, or veteran farmer or rancher, your premium subsidy will be 10 percentage points greater than the premium subsidy that you would otherwise receive, unless otherwise specified in the Special Provisions. (i) You will be ineligible for any premium subsidy paid on your behalf by FCIC for any policy issued by us if: (1) USDA determines you have committed a violation of the highly erodible land conservation or wetland conservation provisions of 7 CFR part 12 as amended by the Agricultural Act of 2014; or (2) You have not filed form AD-1026 with FSA for the reinsurance year by the premium billing date. (i) Notwithstanding section 7(i)(2), you may be eligible for premium subsidy without having a timely filed form AD-1026: (A) For the initial reinsurance year if you certify by the premium billing date for your policy that you meet the qualifications as outlined in FCIC procedures for producers who are new to farming, new to crop insurance, a new entity, or have not previously been required to file form AD-1026; or (B) If FSA approves relief for failure to timely file due to circumstances beyond your control or failure to timely provide adequate information to complete form AD-1026 in accordance with the provisions contained in 7 CFR part 12. (ii) To be eligible for premium subsidy paid on your behalf by FCIC, it is your responsibility to assure you meet all the requirements for: (A) Compliance with the conservation provisions specified in section 7(i)(1) of this section; and (B) Filing form AD-1026 to be properly identified as in compliance with the conservation provisions specified in section 7(i)(1) of this section. (a) An annual acreage report must be submitted to us on our form for each insured crop (separate lines for each type and practice) in the county on or before the acreage reporting date contained in the actuarial documents. (b) If you do not have a share in an insured crop in the county for the crop year, you must submit an acreage report, on or before the acreage reporting date, so indicating. (c) Your acreage report must include the following information, if applicable: (1) The amount of acreage of the crop in the county (insurable and not insurable) in which you have a share, the last date any acreage of the insured crop was planted, and the number of acres planted by such date (Acreage initially planted after the final planting date must be reported as uninsurable); (2) Your share at the time coverage begins; (3) The practice; (4) The type; and (5) The land identifier for the crop acreage (e.g., legal description, FSA farm number or common land unit number if provided to you by FSA, etc.) as required on our form. (d) We will not insure any acreage of the insured crop planted after the final planting date. (e) Regarding the ability to revise an acreage report you have submitted to us: (1) You cannot revise any information pertaining to the planted acreage after the acreage reporting date without our consent; (2) Consent may only be provided: (i) If the information on the acreage report is clearly transposed; (ii) If you provide adequate evidence that we have or someone from USDA has committed an error regarding the information on your acreage report; (iii) If allowed in the Crop Provisions; or (iv) As otherwise provided in the Special Provisions; and (3) The provisions in section 8(e)(1) and (2) also pertain to land acquired after the acreage reporting date, and we may choose to insure or not insure the acreage, provided the crop meets the requirements in section 5 and section 8. This requirement does not apply to any acreage acquired through a transfer of coverage in accordance with section 17. (f) Except as provided in section 8(h), your premium and indemnity, if any, will be based on your insured acreage and share on your acreage report or section 8(e), if applicable. (g) We may elect to determine all premiums and indemnities based on the information you submit on the acreage report or upon the factual circumstances we determine to have existed, subject to the provisions contained in section 8. (h) You must provide all required reports and you are responsible for the accuracy of all information contained in those reports. You should verify the information on all such reports prior to submitting them to us. (1) Except as provided in section 8(h)(2), if you submit information on any report that is different than what is determined to be correct and the information reported on the acreage report results in: (i) A lower liability than the actual, correct liability determined, the policy protection will be reduced to an amount consistent with the information reported on the acreage report; or (ii) A higher liability than the actual, correct liability determined, the information contained in the acreage report will be revised to be consistent with the correct information. (2) If your share is misreported and the share is: (i) Under-reported at the time of the acreage report, any claim will be determined using the share you reported; or (ii) Over-reported at the time of the acreage report, any claim will be determined using the share we determine to be correct. (i) If we discover you have incorrectly reported any information on the acreage report for any crop year, you may be required to provide documentation in subsequent crop years substantiating your report of acreage for those crop years, including, but not limited to, an acreage measurement service at your own expense. If the correction of any misreported information would affect an indemnity that was paid in a prior crop year, such claim will be adjusted and you will be required to repay any overpaid amounts. (j) You may request an acreage measurement from FSA or a business that provides such measurement service prior to the acreage reporting date, submit documentation of such request and an acreage report with estimated acreage by the acreage reporting date, and if the acreage measurement shows the estimated acreage was incorrect, we will revise your acreage report to reflect the correct acreage: (1) If an acreage measurement is only requested for a portion of the insured crop, type, and practice, you must separately designate the acreage for which an acreage measurement has been requested; (2) If an acreage measurement is not provided to us by the time the final county revenue or final county yield, as applicable, is calculated, we may: (i) Elect to measure the acreage, and finalize your claim in accordance with applicable policy provisions; (ii) Defer finalization of the claim until the measurement is completed with the understanding that if you fail to provide the measurement prior to the termination date, your claim will not be paid; or (iii) Finalize the claim in accordance with applicable policy provisions after you provide the acreage measurement to us; and (3) Premium will still be due in accordance with sections 2(k) and 7 (If the acreage is not measured as specified in section 8(j) and the acreage measurement is not provided to us at least 15 days prior to the premium billing date, your premium will be based on the estimated acreage and will be revised, if necessary, when the acreage measurement is provided); (4) If the acreage measurement is not provided by the termination date, you will be precluded from providing any estimated acreage for all subsequent crop years; (5) If there is an irreconcilable difference between: (i) The acreage measured by FSA or a measuring service and our on-farm measurement, our on-farm measurement will be used; or (ii) The acreage measured by a measuring service, other than our on-farm measurement, and FSA, the FSA measurement will be used; and (6) If the acreage report has been revised in accordance with sections 8(g) and 8(j), the information on the initial acreage report will not be considered misreported for the purposes of section 8(h). (k) If you do not submit an acreage report by the acreage reporting date, or if you fail to report all acreage, we may elect to determine the insurable acreage, by crop, type, practice, and share, or to deny liability on such acreage. If we deny liability for the unreported acreage, no premium will be due on such acreage and no indemnity will be paid. (l) An annual production report must be submitted, unless otherwise specified in the Special Provisions, to us on our form for each insured crop (separate lines for each type and practice) in the county by the production reporting date specified in the actuarial documents. (m) Unless otherwise authorized by FCIC, if you do not submit a production report to us by the production reporting date specified in the actuarial documents, your protection factor for your policy in the following crop year will be limited to the lowest protection factor available. (n) You must certify to the accuracy of the information on your production report and if you fail to accurately report your production, you will be subject to the provisions in 8(m), unless the information is corrected: (1) On or before the production reporting date; or (2) Because the incorrect information was the result of our error or the error of someone from USDA. (o) If you do not have acceptable production records to support the information you certified on your production report, you will be subject to the provisions in 8(m). (p) At any time we discover you have misreported any material information on your production report, you will be subject to the provisions in 8(m). (q) If you do not submit a production report or you misreported your production report and you switch to another plan of insurance in the following crop year, you will be subject to having a yield assigned in accordance with FCIC procedures. (r) Errors in reporting acreage, share, and other information required in this section, may be corrected by us at the time we become aware of such errors. However, the provisions regarding incorrect information in this section will apply. (a) Insurance will attach: (1) Only if the person completing the application has a share in the insured crop; and (2) Only to that person’s share, except that insurance may attach to another person’s share of the insured crop if the other person has a share of the crop and: (i) The application clearly states the insurance is requested for a person other than an individual (e.g., a partnership or a joint venture); or (ii) The application clearly states you as a landlord will insure your tenant’s share, or you as a tenant will insure your landlord’s share. If you as a landlord will insure your tenant’s share, or you as a tenant will insure your landlord’s share, you must provide evidence of the other party’s approval (lease, power of attorney, etc.) and such evidence will be retained by us: (A) You also must clearly set forth the percentage shares of each person on the acreage report; and (B) For each landlord or tenant, you must report the landlord’s or tenant’s SSN, EIN, or other identification number we assigned for the purposes of this policy, as applicable. (b) With respect to your share: (1) We will consider included in your share under your policy, any acreage or interest reported by or for: (i) Your spouse, unless such spouse can prove he/she has a separate farming operation, which includes, but is not limited to, separate land (transfers of acreage from one spouse to another is not considered separate land), separate capital, separate inputs, separate accounting, and separate maintenance of proceeds; or (ii) Your child who resides in your household or any other member of your household, unless such child or other member of the household can demonstrate such person has a separate share in the crop (Children who do not reside in your household are not included in your share); and (2) If it is determined that the spouse, child or other member of the household has a separate policy but does not have a separate farming operation or share of the crop, as applicable: (i) The policy for the spouse or child or other member of the household will be void and the policy remaining in effect will be determined in accordance with section 18(c)(1) and (2); (ii) The acreage or share reported under the policy that is voided will be included under the remaining policy; and (iii) No premium will be due and no indemnity will be paid for the voided policy. (c) Acreage rented for a percentage of the crop, or a lease containing provisions for both a minimum payment (such as a specified amount of cash, bushels, pounds, etc.) and a crop share will be considered a crop share lease. (d) Acreage rented for cash, or a lease containing provisions for either a minimum payment or a crop share (such as a 50/50 share or $100.00 per acre, whichever is greater) will be considered a cash lease. Unless specified otherwise in the Crop Provisions, coverage begins at the later of: (a) The date we accept your application (For the purposes of this paragraph, the date of acceptance is the date that you submit a properly executed application in accordance with section 2); or (b) The date the insured crop is planted. (a) ARPI provides protection against loss of revenue or against loss of yield in a county resulting from natural causes of loss that cause the final county yield or the final county revenue to be less than the trigger yield or the trigger revenue. (b) Failure to follow good farming practices, or planting or producing a crop using a practice that has not been widely recognized as used to establish the expected county yield, is not an insurable cause of loss under ARPI. (a) Individual farm revenues and yields are not considered when calculating losses under ARPI. It is possible that your individual farm may experience reduced revenue or reduced yield and you do not receive an indemnity under ARPI. (b) To calculate the trigger revenue: (1) For Area Revenue Protection, multiply the expected county yield by the greater of the projected or harvest price and by the coverage level. (2) For Area Revenue Protection with the Harvest Price Exclusion, multiply the expected county yield by the projected price and by the coverage level. (c) To calculate the Trigger Yield for Area Yield Protection, multiply the expected county yield by the coverage level. (d) If the harvest price cannot be calculated for the current crop year under the provisions contained in the CEPP: (1) Revenue protection will continue to be available; and (2) The harvest price will be determined and announced by FCIC. (e) The final policy protection for: (1) Area Revenue Protection is calculated by: (i) Multiplying the expected county yield by the greater of the harvest price or the projected price; (ii) Multiplying the result of subparagraph (i) by your protection factor; and (iii) Multiplying the result of subparagraph (ii) by your acres and by your share. (2) Area Revenue Protection with the Harvest Price Exclusion and Area Yield Protection are equal to the policy protection and are calculated by: (i) Multiplying the expected county yield by the projected price; (ii) Multiplying the result of subparagraph (i) by your protection factor; and (iii) Multiplying the result of subparagraph (ii) by your acres and by your share. (f) An indemnity is due for: (1) Area Revenue Protection and Area Revenue Protection with the Harvest Price Exclusion if the final county revenue is less than the trigger revenue. (2) Area Yield Protection if the final county yield is less than the trigger yield. (g) The payment factor is calculated for: (1) Area Revenue Protection by: (i) Subtracting the final county revenue from the trigger revenue to determine the amount of loss; (ii) Multiplying the expected county yield by the greater of the projected or harvest price and by the loss limit factor; (iii) Subtracting the result of subparagraph (ii) from the trigger revenue; and (iv) Dividing the result of subparagraph (i) by the result of subparagraph (iii) to obtain the payment factor. (2) Area Revenue Protection with the Harvest Price Exclusion by: (i) Subtracting the final county revenue from the trigger revenue to determine the amount of loss; (ii) Multiplying the expected county yield by the projected price and by the loss limit factor; (iii) Subtracting the result of subparagraph (ii) from the trigger revenue; and (iv) Dividing the result of subparagraph (i) by the result of subparagraph (iii) to obtain the payment factor. (3) Area Yield Protection by: (i) Subtracting the final county yield from the trigger yield to determine the amount of loss; (ii) Multiplying the expected county yield by the loss limit factor; (iii) Subtracting the result of subparagraph (ii) from the trigger yield; and (iv) Dividing the result of subparagraph (i) by the result of subparagraph (iii) to obtain the payment factor. (h) Indemnities for all three ARPI plans of insurance are calculated by multiplying the final policy protection by the payment factor. (i) Indemnities for all three ARPI plans of insurance are calculated following release of the final county yield and harvest price as specified in the Crop Provisions. (a) With respect to acreage where you are due an indemnity for your first insured crop in the crop year, except in the case of double cropping described in section 13(c): (1) You may elect to not plant or to plant and not insure a second crop on the same acreage for harvest in the same crop year and collect an indemnity payment that is equal to 100 percent of the insurable loss for the first insured crop; or (2) You may elect to plant and insure a second crop on the same acreage for harvest in the same crop year (you will pay the full premium and if there is an insurable loss to the second crop, receive the full amount of indemnity that may be due for the second crop, regardless of whether there is a subsequent crop planted on the same acreage) and: (i) Collect an indemnity payment that is 35 percent of the insurable loss for the first insured crop; (ii) Be responsible for a premium that is 35 percent of the premium that you would otherwise owe for the first insured crop; and (iii) If the second crop does not suffer an insurable loss: (A) Collect an indemnity payment for the other 65 percent of insurable loss that was not previously paid under section 13(a)(2)(i); and (B) Be responsible for the remainder of the premium for the first insured crop that you did not pay under section 13(a)(2)(ii). (b) In lieu of the priority contained in the Agreement to Insure section, which states that the Crop Provisions have priority over the Basic Provisions, the reduction in the amount of indemnity and premium specified in section 13(a) of these Basic Provisions, as applicable, will apply to any premium owed or indemnity paid in accordance with the Crop Provisions, and any applicable endorsement. This will apply: (1) Even if another person plants the second crop on any acreage where the first insured crop was planted; or (2) If you fail to provide any records we require to determine whether an insurable loss occurred for the second crop. (c) You may receive a full indemnity for a first insured crop when a second crop is planted on the same acreage in the same crop year, regardless of whether or not the second crop is insured or sustains an insurable loss, if each of the following conditions are met: (1) It is a practice that is generally recognized by agricultural experts or organic agricultural experts for the area to plant two or more crops for harvest in the same crop year; (2) The second or more crops are customarily planted after the first insured crop for harvest on the same acreage in the same crop year in the area; (3) Additional coverage insurance offered under the authority of the Act is available in the county on the two or more crops that are double cropped; and (4) You provide records acceptable to us of acreage and production that show you have double cropped acreage in at least two of the last four crop years in which the first insured crop was planted, or that show the applicable acreage was double cropped in at least two of the last four crop years in which the first insured crop was grown on it; (5) If you do not have records of acreage and production specific to the double cropped acreage, as required in section 13(h)(4), but instead have records that combine production from acreage you double cropped with records of production from acreage you did not double crop, we will allocate the first and second crop production to the specific acreage in proportion to the liability for the acreage that was and was not double cropped; and (6) With respect to double cropped acreage for which one of the crops you have double cropped is insured under a plan of insurance not covered under these Basic Provisions, each insured crop must follow its own Basic Provisions, Crop Provisions, and Special Provisions to determine if the double cropping requirements have been met. If the double cropping requirements in the applicable Basic Provisions, Crop Provisions, or Special Provisions have not been met for each insured crop, section 13(a) of these Basic Provisions apply. (d) If you provided acceptable records in accordance with section 13(c), your double cropping history is limited to the highest number of acres double cropped within the applicable four-year period as determined in section 13(c)(4). (1) If the records you provided are from acreage you double cropped in at least two of the last four crop years, you may apply your history of double cropping to any acreage of the insured crop in the county (for example you have 100 cropland acres in the county and have double cropped wheat and soybeans on all 100 acres in the county and you acquire an additional 100 acres in the county, you can apply your history of 100 double cropped acres to any of the 200 acres in the county); or (2) If the records you provided are from acreage that another producer double cropped in at least two of the last four crop years, you may only use the history of double cropping for the same physical acres from which double cropping records were provided (e.g., if a neighbor has double cropped 100 acres of wheat and soybeans in the county and you acquire your neighbor’s 100 double cropped acres and an additional 100 acres in the county, you can only apply your neighbor’s history of double cropped acreage to the same 100 acres that your neighbor double cropped). (3) If you acquired additional land for the current crop year and the following calculation results in a greater number of double cropping acres than determined in section 13(c), you may apply the percentage of acres that you have previously double cropped to the total cropland acres that you are farming this year (if greater): (i) Determine the number of acres of the first insured crop that were double cropped in each of the years for which double cropping records are provided (for example, records are provided showing: 100 acres of wheat planted in 2019 and 50 of those acres were double cropped with soybeans; and 100 acres of wheat planted in 2020 and 70 of those acres were double cropped with soybeans); (ii) Divide each result of section 13(d)(3)(i) by the number of acres of the first insured crop that were planted in each respective year (in the example in section 13(d)(3)(i), 50 divided by 100 equals 50 percent of the first insured crop acres that were double cropped in 2019 and 70 divided by 100 equals 70 percent of the first insured crop acres that were double cropped in 2020); (iii) Add the results of section 13(d)(3)(ii) and divide by the number of years the first insured crop was double cropped (in the example in section 13(d)(3)(i), 50 plus 70 equals 120 divided by 2 equals 60 percent); and (iv) Multiply the result of section 13(d)(3)(iii) by the number of insured acres of the first insured crop (in the example in section 13(d)(3)(i), 60 percent multiplied by the number of wheat acres insured in 2021); (e) If any Federal or State agency requires destruction of any insured crop or crop production, as applicable, because it contains levels of a substance, or has a condition, that is injurious to human or animal health in excess of the maximum amounts allowed by the Food and Drug Administration, other public health organizations of the United States or an agency of the applicable State, you must destroy the insured crop or crop production, as applicable, and certify that such insured crop or crop production has been destroyed prior to receiving an indemnity payment. Failure to destroy the insured crop or crop production, as applicable, will result in you having to repay any indemnity paid and you may be subject to administrative sanctions in accordance with section 515(h) of the Act and 7 CFR part 400, subpart R, and any applicable civil or criminal sanctions. (a) Insurance will be provided for a crop grown using an organic farming practice for only those acres of the crop that meet the requirements for an organic crop on the acreage reporting date. (b) If an organic type or practice is shown on the actuarial documents, the projected price, dollar amount of insurance, policy protection, premium rate, etc., for such organic crop, type and practice will be used unless otherwise specified in the actuarial documents. If an organic type or practice is not shown on the actuarial documents, the projected price, dollar amount of insurance, policy protection, premium rate, etc., for the non-organic crop, type and practice will be used. (c) If insurance is provided for an organic farming practice as specified in section 14(a) and (b), only the following acreage will be insured under such practice: (1) Certified organic acreage; (2) Transitional acreage being converted to certified organic acreage in accordance with an organic plan; and (3) Buffer zone acreage. (d) On the date you report your acreage, you must have: (1) For certified organic acreage, a written certification in effect from a certifying agent indicating the name of the entity certified, effective date of certification, certificate number, types of commodities certified, and name and address of the certifying agent (A certificate issued to a tenant may be used to qualify a landlord or other similar arrangement); (2) For transitional acreage, a certificate as described in section 14(d)(1), or written documentation from a certifying agent indicating an organic plan is in effect for the acreage; and (3) Records from the certifying agent showing the specific location of each field of certified organic, transitional, buffer zone, and acreage not maintained under organic management. (a) The data source used for the county yields will be based on the best available data and will be specified in the actuarial documents. (b) Except as otherwise provided in this section, the data source used to establish the expected county yield will be the data source used to establish the final county yield. (c) If the data source used to establish the expected county yield is not able to provide credible data to establish the final county yield because the data is no longer available, credible, or reflect changes that may have occurred after the yield was established; (1) FCIC will determine the final county yield based on the most accurate data available from subsection (g), as determined by FCIC; or (2) To the extent that practices used during the crop year change from those upon which the expected county yield is based, the final county yield may be adjusted to reflect the yield that would have resulted but for the change in practice. For example, if the county is traditionally 90 percent irrigated and 10 percent non-irrigated, but this year the county is now 50 percent irrigated and 50 percent non-irrigated, the final county yield will be adjusted to an amount as if the county had 90 percent irrigated acreage. (d) If the final county yield is established from a data source other than that used to establish the expected county yield, FCIC will provide notice of the data source and the reason for the change at the time the final county yield is published. (e) The final county yield determined by FCIC is considered final for the purposes of establishing whether an indemnity is due and will not be revised for any reason. (f) Yields used under this insurance program for a crop may be based on crop insurance data, other USDA data, or other data sources, if elected by FCIC. (a) You may assign your right to an indemnity for the crop year only to creditors or other persons to whom you have a financial debt or other pecuniary obligation. You may be required to provide proof of the debt or other pecuniary obligation before we will accept the assignment of indemnity. (b) All assignments must be on our form and must be provided to us. Each assignment form may contain more than one creditor or other person to whom you have a financial debt or other pecuniary obligation. (c) Unless you have provided us with a properly executed assignment of indemnity, we will not make any payment to a lienholder or other person to whom you have a financial debt or other pecuniary obligation even if you may have a lien or other assignment recorded elsewhere. Under no circumstances will we be liable: (1) To any lienholder or other person to whom you have a financial debt or other pecuniary obligation where you have failed to include such lienholder or person on a properly executed assignment of indemnity provided to us; or (2) To pay to all lienholders or other persons to whom you have a financial debt or other pecuniary obligation any amount greater than the total amount of indemnity owed under the policy. (d) If we have received the properly executed assignment of indemnity form: (1) Only one payment will be issued jointly in the names of all assignees and you; and (2) Any assignee will have the right to submit all notices and forms as required by the policy. If you transfer any part of your share during the crop year, you may transfer your coverage rights, if the transferee is eligible for crop insurance. (a) We will not be liable for any more than the liability determined in accordance with your policy that existed before the transfer occurred. (b) The transfer of coverage rights must be on our form and will not be effective until approved by us in writing. (c) Both you and the transferee are jointly and severally liable for the payment of the premium and administrative fees. (d) The transferee has all rights and responsibilities under this policy consistent with the transferee’s interest. (a) Nothing in this section prevents you from obtaining other insurance not authorized under the Act. However, unless specifically required by policy provisions, you must not obtain any other crop insurance authorized under the Act on your share of the insured crop. (b) If you cannot demonstrate that you did not intend to have more than one policy in effect, you may be subject to the consequences authorized under this policy, the Act, or any other applicable statute. (c) If you can demonstrate that you did not intend to have more than one policy in effect (For example, an application to transfer your policy or written notification to an insurance provider that states you want to purchase, or transfer, insurance and you want any other policies for the crop canceled would demonstrate you did not intend to have duplicate policies) and: (1) One is an additional coverage policy and the other is a CAT policy: (i) The additional coverage policy will apply if both policies are with the same insurance provider or, if not, both insurance providers agree; or (ii) The policy with the earliest date of application will be in force if both insurance providers do not agree; or (2) Both are additional coverage policies or both are CAT policies, the policy with the earliest date of application will be in force and the other policy will be void, unless both policies are with: (i) The same insurance provider and the insurance provider agrees otherwise; or (ii) Different insurance providers and both insurance providers agree otherwise. You must not abandon any crop to us. We will not accept any crop as compensation for payments due us. (a) All notices required to be given by you must be in writing and received by your crop insurance agent within the designated time unless otherwise provided by the notice requirement. (1) Notices required to be given immediately may be by telephone or in person and confirmed in writing. (2) The time the notice is provided will be determined by the time of our receipt of the written notice. (3) If the date by which you are required to submit a report or notice falls on Saturday, Sunday, or a Federal holiday, or if your agent’s office is, for any reason, not open for business on the date you are required to submit such notice or report, such notice or report must be submitted on the next business day. (b) All policy provisions, notices, and communications required to be sent by us to you will be: (1) Provided by electronic means, unless: (i) We do not have the ability to transmit such information to you by electronic means; or (ii) You elect to receive a paper copy of such information; (2) Sent to the location specified in your records with your crop insurance agent; and (3) Conclusively presumed to have been received by you. (a) We, and any employee of USDA authorized to investigate or review any matter relating to crop insurance (authorized employee of USDA), have the right to examine the insured crop and all records related to the insured crop and this policy, and any mediation, arbitration or litigation involving the insured crop as often as reasonably required during the record retention period. (b) You must retain, and provide upon our request, or the request of any authorized employee of USDA, complete records pertaining to the planting, acres, share, replanting, inputs, production, harvesting and disposition of the insured crop for a period of three years after the end of the crop year or three years after the date of final payment of indemnity, whichever is later. This requirement also applies to all such records for acreage that is not insured. (c) We, or any authorized employee of USDA, may extend the record retention period beyond three years by notifying you of such extension in writing. (d) By signing the application for insurance authorized under the Act or by continuing insurance for which you have previously applied, you authorize us or USDA, or any person acting for us or USDA authorized to investigate or review any matter relating to crop insurance, to obtain records relating to the planting, acres, share, replanting, inputs, production, harvesting, and disposition of the insured crop from any person who may have custody of such records, including but not limited to, FSA offices, banks, warehouses, gins, cooperatives, marketing associations, and accountants. You must assist in obtaining all records we or any authorized employee of USDA request from third parties. (e) Failure to provide access to the insured crop or the farm, authorize access to the records maintained by third parties, or assist in obtaining all such records will result in a determination that no indemnity is due for the crop year in which such failure occurred. (a) Any amount illegally or erroneously paid to you or that is owed to us but is delinquent may be recovered by us through offset by deducting it from any loan or payment due you under any Act of Congress or program administered by any United States Government Agency, or by other collection action. (b) Interest will accrue at the rate of 1.25 percent simple interest per calendar month, or any part thereof, on any unpaid premium amount or administrative fee due us. With respect to any premiums or administrative fees owed, interest will start to accrue on the first day of the month following the issuance of the notice by us, provided that a minimum of 30 days have passed from the premium billing date specified in the actuarial documents, provided a minimum of 30 days have passed from the premium billing date. (c) For the purpose of any other amounts due us, such as repayment of indemnities found not to have been earned: (1) Interest will start on the date that notice is issued to you for the collection of the unearned amount; (2) Amounts found due under this paragraph will not be charged interest if payment is made within 30 days of issuance of the notice by us; (3) The amount will be considered delinquent if not paid within 30 days of the date the notice is issued by us; (4) Penalties and interest will be charged in accordance with 31 U.S.C. 3717 and 4 CFR part 102; and (5) The penalty for accounts more than 90 days delinquent is an additional 6 percent per annum. (d) Interest on any amount due us found to have been received by you because of fraud, misrepresentation or presentation by you of a false claim will start on the date you received the amount with the additional 6 percent penalty beginning on the 31st day after the notice of amount due is issued to you. This interest is in addition to any other amount found to be due under any other federal criminal or civil statute. (e) If we determine that it is necessary to contract with a collection agency, refer the debt to government collection centers, the Department of Treasury Offset Program, or to employ an attorney to assist in collection, you agree to pay all the expenses of collection. (f) All amounts paid will be applied first to expenses of collection if any, second to the reduction of any penalties which may have been assessed, then to reduction of accrued interest, and finally to reduction of the principal balance. (a) Interest will accrue at the rate of 1.25 percent simple interest per calendar month on any unpaid amount owed to us or on any unpaid administrative fees owed to FCIC. (1) For the purpose of premium amounts owed to us or administrative fees owed to FCIC, interest will start to accrue on the first day of the month following the issuance of the notice by us, provided that a minimum of 30 days have passed from the premium billing date specified in the actuarial documents, provided a minimum of 30 days have passed from the premium billing date. (2) We will collect any unpaid amounts owed to us and any interest owed thereon and, prior to the termination date, we will collect any administrative fees and interest owed thereon to FCIC. After the termination date, FCIC will collect any unpaid administrative fees and any interest owed thereon for any CAT policy and we will collect any unpaid administrative fees and any interest owed thereon for additional coverage policies. (b) For the purpose of any other amounts due us, such as repayment of indemnities found not to have been earned, interest will start to accrue on the date that notice is issued to you for the collection of the unearned amount. (1) Amounts found due under this paragraph will not be charged interest if payment is made within 30 days of issuance of the notice by us. (2) The amount will be considered delinquent if not paid within 30 days of the date the notice is issued by us. (c) All amounts paid will be applied first to expenses of collection (see subsection (d) of this section), if any, second to the reduction of accrued interest, and then to the reduction of the principal balance. (d) If we determine that it is necessary to contract with a collection agency or to employ an attorney to assist in collection, you agree to pay all of the expenses of collection. (e) The portion of the amounts owed by you for a policy authorized under the Act that are owed to FCIC may be collected in part through administrative offset from payments you receive from United States government agencies in accordance with 31 U.S.C. chapter 37. Such amounts include all administrative fees, and the share of the overpaid indemnities and premiums retained by FCIC plus any interest owed thereon. (a) All determinations required by the policy will be made by us. All expected county yields and final county yields are calculated by us in accordance with section 15. However, calculations of expected county yields and final county yields are matters of general applicability. (1) Any matter of general applicability is not subject to appeal under 7 CFR part 400, subpart J or 7 CFR part 11. (2) Your only remedy is judicial review but if you want to seek judicial review of any determination by us that is a matter of general applicability, you must request a determination of non-appealability from the Director of the National Appeals Division in accordance with 7 CFR 11.6 before seeking judicial review. (3) The timeframe to request a determination of non-appealability from the Director of the National Appeals Division is not later than 30 days after the date the yields are published on the RMA website. (b) If you disagree with our determinations: (1) Except for determinations specified in section 23(b)(2), obtain an administrative review in accordance with 7 CFR part 400, subpart J or appeal in accordance with 7 CFR part 11; or (2) For determinations regarding whether you have used good farming practices, request reconsideration in accordance with the reconsideration process established for this purpose and published at 7 CFR part 400, subpart J. (c) If you fail to exhaust your administrative remedies under 7 CFR part 11 or the reconsideration process for determinations of good farming practices described in section 23(b)(2), as applicable, you will not be able to resolve the dispute through judicial review. (d) If reconsideration for good farming practices under 7 CFR part 400, subpart J or appeal under 7 CFR part 11 has been initiated within the time frames specified in those sections and judicial review is sought, any suit against us must be: (1) Filed not later than one year after the date of the decision rendered in the reconsideration process for good farming practices or administrative review process under 7 CFR part 11; and (2) Brought in the United States district court for the district in which the insured farm involved in the decision is located. (e) You may only recover contractual damages from us. Under no circumstances can you recover any attorney fees or other expenses, or any punitive, compensatory or any other damages from us in administrative review, appeal or litigation. (a) All expected county yields and final county yields are calculated by FCIC in accordance with section 15. However, calculations of expected county yields and final county yields are matters of general applicability. (1) Any matter of general applicability is not subject to appeal under 7 CFR part 400, subpart J or 7 CFR part 11. (2) Your only remedy is judicial review but if you want to seek judicial review of any FCIC determination that is a matter of general applicability, you must request a determination of non-appealability from the Director of the National Appeals Division in accordance with 7 CFR 11.6 before seeking judicial review. (3) The timeframe to request a determination of non-appealability from the Director of the National Appeals Division is not later than 30 days after the date the yields are published on RMA’s website. (b) With respect to good farming practices: (1) We will make preliminary decisions regarding what constitutes a good farming practice. (i) If you disagree with our decision of what constitutes a good farming practice you may request through us that FCIC review our decision. Requests for FCIC review must be made within 30 days of the postmark date on the written notice of the determination regarding good farming practices. (ii) You may not sue us for our decisions regarding whether good farming practices were used by you. You must request a determination from FCIC of what constitutes a good farming practice before filing any suit against FCIC. (2) If you do not agree with any determination made by FCIC regarding what constitutes a good farming practice: (i) You may request reconsideration by FCIC of this determination in accordance with the reconsideration process established for this purpose and published at 7 CFR part 400, subpart J; or (ii) You may file suit against FCIC as follows: (A) You are not required to request reconsideration from FCIC before filing suit; (B) Any suit must be brought against FCIC in the United States district court for the district in which the insured acreage is located; and (C) Suit must be filed against FCIC not later than one year after the date: (1) Of the determination made by FCIC regarding what constitutes a good farming practice; or (2) Reconsideration is completed, if reconsideration was requested under section 23(b)(2)(i). (c) If you elect to bring suit against FCIC after seeking a Director’s Review in accordance with section 23(a), such suit must be filed against FCIC in the United States district court for the district in which the insured acreage is located not later than one year after the date of the decision rendered by the Director. Under no circumstances can you recover any punitive, compensatory or any other damages from FCIC. (d) With respect to any other determination under this policy: (1) If you do not agree with any determination not covered by sections 23(a) and (c), the disagreement may be resolved through mediation. To resolve any dispute through mediation, you and we must both: (i) Agree to mediate the dispute; (ii) Agree on a mediator; and (iii) Be present or have a designated representative who has authority to settle the case present, at the mediation. (2) If the disagreement cannot be resolved through mediation, or you and we do not agree to mediation, you must timely seek resolution through arbitration in accordance with the rules of the American Arbitration Association (AAA), unless otherwise stated in this subsection or rules are established by FCIC for this purpose. Any mediator or arbitrator with a familial, financial or other business relationship to you or us, or our agent or loss adjuster, is disqualified from hearing the dispute. (3) If the dispute in any way involves a policy or procedure interpretation, regarding whether a specific policy provision or procedure is applicable to the situation, how it is applicable, or the meaning of any policy provision or procedure, either you or we must obtain an interpretation from FCIC in accordance with 7 CFR part 400, subpart X or such other procedures as established by FCIC. (i) Any interpretation by FCIC will be binding in any mediation or arbitration. (ii) Failure to obtain any required interpretation from FCIC will result in the nullification of any agreement or award. (iii) An interpretation by FCIC of a policy provision is considered a determination that is a matter of general applicability. However, before such interpretation may be challenged in the courts, you must request a determination of non-appealability from the Director of the National Appeals Division not later than 30 days after the date the interpretation was published on RMA’s website. (4) Unless the dispute is resolved through mediation, the arbitrator must provide to you and us a written statement describing the issues in dispute, the factual findings, the determinations and the amount and basis for any award and breakdown by claim for any award. (i) The statement must also include any amounts awarded for interest. (ii) Failure of the arbitrator to provide such written statement will result in the nullification of all determinations of the arbitrator. (iii) All agreements reached through settlement, including those resulting from mediation, must be in writing and contain at a minimum a statement of the issues in dispute and the amount of the settlement. (5) Regardless of whether mediation is elected: (i) You must initiate arbitration proceedings within 1 year of the date we denied your claim or rendered the determination with which you disagree, whichever is later; (ii) If you fail to initiate arbitration in accordance with section 23(d)(5)(i) and complete the process, you will not be able to resolve the dispute through judicial review; (iii) If arbitration has been initiated in accordance with section 23(d)(5)(i) and completed, and judicial review is sought, suit must be filed not later than one year after the date the arbitration decision was rendered; and (iv) In any suit, if the dispute in any way involves a policy or procedure interpretation, regarding whether a specific policy provision or procedure is applicable to the situation, how it is applicable, or the meaning of any policy provision or procedure, an interpretation must be obtained from FCIC in accordance with 7 CFR part 400, subpart X or such other procedures as established by FCIC. Such interpretation will be binding on all parties. (6) Any decision rendered in arbitration is binding on you and us unless judicial review is sought in accordance with section 23(d)(5)(iii). Notwithstanding any provision in the rules of the AAA, you and we have the right to judicial review of any decision rendered in arbitration. (e) In any mediation, arbitration, appeal, administrative review, reconsideration or judicial process, the terms of this policy, the Act, and the regulations published at 7 CFR chapter IV, including the provisions of 7 CFR part 400, subpart P, are binding. Conflicts between this policy and any state or local laws will be resolved in accordance with section 27. If there are conflicts between any rules of the AAA and the provisions of your policy, the provisions of your policy will control. (f) Except as provided in section 23(g), no award or settlement in mediation, arbitration, appeal, administrative review or reconsideration process or judicial review can exceed the amount of liability established or which should have been established under the policy, except for interest awarded in accordance with section 24. (g) In a judicial review only, you may recover attorney fees or other expenses, or any punitive, compensatory or any other damages from us only if you obtain a determination from FCIC that we, our agent or loss adjuster failed to comply with the terms of this policy or procedures issued by FCIC and such failure resulted in you receiving a payment in an amount that is less than the amount to which you were entitled. Requests for such a determination should be addressed to the following: USDA/RMA/Deputy Administrator for Compliance/Stop 0806, 1400 Independence Avenue, SW., Washington, DC 20250-0806. We will pay simple interest computed on the net indemnity ultimately found to be due by us or by a final judgment of a court of competent jurisdiction, from and including the 61st day after the final county yield or final county revenue release date as specified in the applicable Crop Provision. (a) Interest will be paid only if the reason for our failure to timely pay is NOT due to your failure to provide information or other material necessary for the computation or payment of the indemnity. (b) The interest rate will be that established by the Secretary of the Treasury under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) and published in the The descriptive headings of the various policy provisions are formulated for convenience only and are not intended to affect the construction or meaning of any of the policy provisions. Although your violation of a number of federal statutes, including the Act, may cause cancellation, termination, or voidance of your insurance contract, you should be specifically aware that your policy will be canceled if you are determined to be ineligible to receive benefits under the Act due to violation of the controlled substance provisions (title XVII) of the Food Security Act of 1985 (Pub. L. 99-198) and the regulations promulgated under the Act by USDA. (a) Your insurance policy will be canceled if you are determined, by the appropriate Agency, to be in violation of these provisions. (b) We will recover any and all monies paid to you or received by you during your period of ineligibility, and your premium will be refunded, less an amount for expenses and handling equal to 20 percent of the premium paid or to be paid by you. If the provisions of this policy conflict with statutes of the State or locality in which this policy is issued, the policy provisions will prevail. State and local laws and regulations in conflict with federal statutes, this policy, and the applicable regulations do not apply to this policy. (a) If you have falsely or fraudulently concealed the fact that you are ineligible to receive benefits under the Act or if you or anyone assisting you has intentionally concealed or misrepresented any material fact relating to this policy: (1) This policy will be voided; and (2) You may be subject to remedial sanctions in accordance with 7 CFR part 400, subpart R. (b) Even though the policy is void, you will still be required to pay 20 percent of the premium that you would otherwise be required to pay to offset costs incurred by us in the service of this policy. If previously paid, the balance of the premium will be returned. (c) Voidance of this policy will result in you having to reimburse all indemnities paid for the crop year in which the voidance was effective. (d) Voidance will be effective on the first day of the insurance period for the crop year in which the act occurred and will not affect the policy for subsequent crop years unless a violation of this section also occurred in such crop years. (e) If you willfully and intentionally provide false or inaccurate information to us or FCIC, or you fail to comply with a requirement of FCIC, in accordance with 7 CFR part 400, subpart R, FCIC may impose on you: (1) A civil fine for each violation in an amount not to exceed the greater of: (i) The amount of the pecuniary gain obtained as a result of the false or inaccurate information provided or the noncompliance with a requirement of this title; or (ii) $10,000; and (2) A disqualification for a period of up to 5 years from receiving any monetary or nonmonetary benefit provided under each of the following: (i) Any crop insurance policy offered under the Act; (ii) The Farm Security and Rural Investment Act of 2002 (7 U.S.C. 7333 et seq.); (iii) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.); (iv) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et seq.); (v) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.); (vi) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et seq.); (vii) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921 et seq.); and (viii) Any federal law that provides assistance to a producer of a commodity affected by a crop loss or a decline in the prices of commodities. (a) If you are eligible to receive an indemnity under an additional coverage plan of insurance and are also eligible to receive benefits for the same loss under any other USDA program, you may receive benefits under both programs, unless specifically limited by the crop insurance contract or by law. (b) Any amount received for the same loss from any USDA program, in addition to the crop insurance payment, will not exceed the difference between the crop insurance payment and the amount of the loss, unless otherwise provided by law. The amount of loss is the difference between the total value of the insured crop before the loss and the total value of the insured crop after the loss. (c) FSA or another USDA agency, as applicable, will determine and pay the additional amount due you for any applicable USDA program, after first considering the amount of any crop insurance indemnity. The following are examples of the calculation of the premium, amount of insurance and indemnity for each of the three plans of insurance under ARPI. Your information will likely be different and you should consult the actuarial documents in your county and the policy information. The following facts are for illustration purposes only and apply to each of the examples. Producer A farms 100 acres in county X and has a 100 percent share, or 1.000, in those acres. From the actuarial documents in county X, Producer A elects the 75 percent coverage level and a protection factor of 110 percent or 1.10. The actuarial documents in county X also show that the expected county yield is 141.4 bushels per acre, the projected price is $4.00, and the expected county revenue is $565.60. The subsidy factor for the 75 percent coverage level is .55 for revenue coverage and .59 for yield coverage. The loss limit factor is 18 percent or .18. At the end of the insurance period, for county X, FCIC releases a harvest price of $4.57 and a final county yield for county X of 75.0 bushels. The premium rate is based on the published volatility factor and for this example is .0166 for Area Revenue Protection, .0146 for Area Revenue Protection with Harvest Price Exclusion, and .0116 for Area Yield Protection. Area Revenue Protection example: Area Revenue Protection with Harvest Price Exclusion example: (a) In addition to any other corrections allowed in your policy subject to section 31(b), we may correct: (1) Within 60 days after the sales closing date, any incorrect information on your application or provided by the sales closing date, including identification numbers for you and any person with a substantial beneficial interest in you, to ensure that the eligibility information is correct and consistent with information reported by you to any USDA agency; (2) Within 30 days after the acreage reporting date, information reported to reconcile errors in the information with correct information that has been determined by any USDA agency; (3) Within 30 days of any subsequent correction of data by FSA, erroneous information corrected as a result of verification of information; and (4) At any time, any incorrect information if the incorrect information was caused by electronic transmission errors by us or errors made by any agency within USDA in transmitting the information provided by you for purposes of other USDA programs. (b) Corrections may be made but will not take effect for the current crop year if the correction would allow you to: (1) Avoid ineligibility requirements for insurance or obtain a disproportionate benefit under the crop insurance program or any related program administered by the Secretary; (2) Obtain, enhance, or increase an insurance guarantee or indemnity if a cause of loss exists or has occurred before any correction has been made, or avoid premium owed if no loss is likely to occur; or (3) Avoid an obligation or requirement under any Federal or State law.
§ 407.10 Area risk protection insurance for barley.
The barley crop insurance provisions for Area Risk Protection Insurance for the 2014 and succeeding crop years are as follows:
Harvest. Combining or threshing the barley for grain.
Planted acreage. In addition to the definition contained in the Area Risk Protection Insurance Basic Provisions, land on which seed is initially spread onto the soil surface by any method and which subsequently is mechanically incorporated into the soil in a timely manner and at the proper depth will also be considered planted.
The insured crop will be all barley:
(a) Grown on insurable acreage in the county listed on the accepted application;
(b) Properly planted by the final planting date and reported on or before the acreage reporting date;
(c) Planted with the intent to be harvested;
(d) Not planted into an established grass or legume;
(e) Not interplanted with another crop; and
(f) Not planted as a nurse crop, unless seeded at the normal rate and intended for harvest as grain.
(a) Unless otherwise specified in the Special Provisions the final county revenues and final county yields will be determined prior to April 1 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the Special Provisions we will issue any payment to you prior to May 1 following the crop year and following the determination of the final county revenue or the final county yield, as applicable.
| State and county | Cancellation and termination dates | Contract change date |
|---|---|---|
| Kit Carson, Lincoln, Elbert, El Paso, Pueblo, Las Animas Counties, Colorado and all Colorado Counties south and east thereof; all New Mexico counties except Taos County; Kansas; Missouri; Illinois; Indiana; Ohio; Pennsylvania; New York; Massachusetts; and all states south and east thereof | September 30 | June 30. |
| Arizona; California; and Clark and Nye Counties, Nevada | October 31 | June 30. |
| All Colorado counties except Kit Carson, Lincoln, Elbert, El Paso, Pueblo, and Las Animas Counties and all Colorado counties south and east thereof; all Nevada counties except Clark and Nye Counties; Taos County, New Mexico; and all other states except: Arizona, California, and (except) Kansas, Missouri, Illinois, Indiana, Ohio, Pennsylvania, New York, and Massachusetts and all States south and east thereof | March 15 | November 30. |
§ 407.11 Area risk protection insurance for corn.
The corn crop insurance provisions for Area Risk Protection Insurance for the 2014 and succeeding crop years are as follows:
Harvest. Combining or picking corn for grain or cutting for hay, silage, fodder, or earlage.
Planted acreage. In addition to the definition contained in the Area Risk Protection Insurance Basic Provisions, corn seed that is broadcast and subsequently mechanically incorporated will not be considered planted.
(a) The insured crop will be all field corn that is:
(1) Yellow dent or white corn, including mixed yellow and white, waxy or high-lysine corn, high-oil corn blends containing mixtures of at least 90 percent high yielding yellow dent female plants with high-oil male pollinator plants, or commercial varieties of high-protein hybrids.
(2) Grown on insurable acreage in the county listed on the accepted application;
(3) Properly planted by the final planting date and reported on or before the acreage reporting date;
(4) Planted with the intent to be harvested; and
(5) Not planted into an established grass or legume or interplanted with another crop.
(b) Corn other than that specified in section 2(a)(1) including but not limited to high-amylose, high-oil or high-protein (except as authorized in section 2(a)(1)), flint, flour, hybrid seed corn, Indian, or blue corn, or a variety genetically adapted to provide forage for wildlife or any other open pollinated corn may be insurable under this policy if specified in the Special Provisions:
(1) The insurability requirements in 2(a) apply to this other corn and additional requirements for insurability may be stated for this other corn in the Special Provisions; and
(2) This other corn will be insured using the yields, rates, and prices for field corn unless otherwise specified in the actuarial documents.
(a) Unless otherwise specified in the Special Provisions the final county revenues and final county yields will be determined prior to April 16 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the Special Provisions we will issue any payment to you prior to May 16 following the crop year and following the determination of the final county revenue or the final county yield, as applicable.
| State and county | Cancellation and termination dates | Contract change date |
|---|---|---|
| Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, Karnes, Goliad, Victoria, and Jackson Counties, Texas, and all Texas counties lying south thereof | January 31 | November 30. |
| El Paso, Hudspeth, Culberson, Reeves, Loving, Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom Green, Concho, McCulloch, San Saba, Mills, Hamilton, Bosque, Johnson, Tarrant, Wise, and Cooke Counties, Texas, and all Texas Counties lying south and east thereof to and including Terrell, Crockett, Sutton, Kimble, Gillespie, Blanco, Comal, Guadalupe, Gonzales, De Witt, Lavaca, Colorado, Wharton, and Matagorda Counties, Texas | February 15 | November 30. |
| Alabama; Arizona; Arkansas; California; Florida; Georgia; Louisiana; Mississippi; Nevada; North Carolina; South Carolina | February 28 | November 30. |
| All other Texas counties and all other states | March 15 | November 30. |
§ 407.12 Area risk protection insurance for cotton.
The cotton crop insurance provisions for Area Risk Protection Insurance for the 2014 and succeeding crop years are as follows:
Harvest. Removal of the seed cotton from the stalk.
Planted acreage. In addition to the definition contained in the Area Risk Protection Insurance Basic Provisions, cotton seed broadcast and subsequently mechanically incorporated will not be considered planted.
(a) The insured crop will be all upland cotton:
(1) Grown on insurable acreage in the county listed on the accepted application;
(2) Properly planted by the final planting date and reported on or before the acreage reporting date;
(3) Planted with the intent to be harvested.
(b) That is not (unless allowed by the Special Provisions):
(1) Colored cotton lint;
(2) Planted into an established grass or legume;
(3) Interplanted with another spring planted crop;
(4) Grown on acreage in which a hay crop was harvested in the same calendar year unless the acreage is irrigated; or
(5) Grown on acreage on which a small grain crop reached the heading stage in the same calendar year unless the acreage is irrigated or adequate measures are taken to terminate the small grain crop prior to heading and less than 50 percent of the small grain plants reach the heading stage.
(c) Cotton other than upland cotton may be insurable under this policy if specified in the Special Provisions:
(1) The insurability requirements in 2(a) apply to other cotton and additional requirements for insurability may be stated for other cotton in the Special Provisions; and
(2) Other cotton will be insured using the yields, rates, and prices for cotton unless otherwise specified in the actuarial documents.
(a) Unless otherwise specified in the Special Provisions the final county revenues and final county yields will be determined prior to July 16 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the Special Provisions we will issue any payment to you prior to August 15 following the crop year and following the determination of the final county revenue or the final county yield, as applicable.
| State and county | Cancellation and termination dates | Contract change date |
|---|---|---|
| Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, Karnes, Goliad, Victoria, and Jackson Counties, Texas, and all Texas counties lying south thereof | January 31 | November 30. |
| Alabama; Arizona; Arkansas; California; Florida; Georgia; Louisiana; Mississippi; Nevada; North Carolina; South Carolina; El Paso, Hudspeth, Culberson, Reeves, Loving, Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom Green, Concho, McCulloch, San Saba, Mills, Hamilton, Bosque, Johnson, Tarrant, Wise, and Cooke Counties, Texas, and all Texas counties lying south and east thereof to and including Terrell, Crockett, Sutton, Kimble, Gillespie, Blanco, Comal, Guadalupe, Gonzales, De Witt, Lavaca, Colorado, Wharton, and Matagorda Counties, Texas | February 28 | November 30. |
| All other Texas counties and all other States | March 15 | November 30. |
§ 407.13 Area risk protection insurance for forage.
The forage crop insurance provisions for Area Risk Protection Insurance for the 2017 and succeeding crop years are as follows:
Forage. Planted perennial alfalfa, perennial red clover, perennial grasses, or a mixture thereof, or other species as shown in the actuarial documents.
Harvest. Removal of the forage from the field. Harvest does not include grazing.
The insured crop will be the forage types shown on the actuarial documents:
(a) Grown on insurable acreage in the county listed on the accepted application;
(b) Properly planted by the final planting date and reported on or before the acreage reporting date;
(c) Intended for harvest; and
(d) Not grown with another crop.
In addition to section 5 of the Area Risk Protection Insurance Basic Provisions, acreage seeded to forage after July 1 of the previous crop year will not be insurable.
(a) Unless otherwise specified in the Special Provisions the final county yields will be determined prior to May 1 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the Special Provisions we will issue any payment to you prior to May 31 following the crop year and following the determination of the final county yield.
September 30 is the cancellation and termination date for all states, unless the date is specified differently in the Special Provisions. The contract change date is June 30 for all states, unless the date is specified differently in the Special Provisions.
In addition to section 8(e)(2) of the Area Risk Protection Insurance Basic Provisions, regarding the ability to revise an acreage report you have submitted to us, we may provide you consent to revise your acreage report to indicate acreage damaged by winterkill that was not harvested (no cutting taken) as uninsurable acreage. You must submit a revised acreage report on or before the date specified in the Special Provisions.
§ 407.14 Area risk protection insurance for peanuts
The peanut crop insurance provisions for Area Risk Protection Insurance for the 2014 and succeeding crop years are as follows:
Harvest. The completion of digging and threshing and removal of peanuts from the field.
Planted acreage. In addition to the definition contained in the Area Risk Protection Insurance Basic Provisions, peanuts must initially be planted in a row pattern which permits mechanical cultivation, or that allows the peanuts to be cared for in a manner recognized by agricultural experts as a good farming practice. Acreage planted in any other manner will not be insurable unless otherwise provided by the Special Provisions.
(a) The insured crop will be all peanuts:
(1) Grown on insurable acreage in the county listed on the accepted application;
(2) Properly planted by the final planting date and reported on or before the acreage reporting date;
(3) Planted with the intent to be harvested as peanuts; and
(4) Not planted into an established grass or legume or interplanted with another crop.
(a) Unless otherwise specified in the Special Provisions the final county revenues and or final county yields will be determined prior to June 16 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the Special Provisions we will issue any payment to you prior to July 16 and following the determination of the final county revenue or the final county yield, as applicable.
| State and county | Cancellation and termination dates | Contract change date |
|---|---|---|
| Jackson, Victoria, Goliad, Bee, Live Oak, McMullen, La Salle, and Dimmit Counties, Texas and all Texas Counties lying south thereof | January 15 | November 30. |
| El Paso, Hudspeth, Culberson, Reeves, Loving, Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom Green, Concho, McCulloch, San Saba, Mills, Hamilton, Bosque, Johnson, Tarrant, Wise, and Cooke Counties, Texas, and all Texas counties south and east thereof; and all other states except New Mexico, Oklahoma, and Virginia | February 28 | November 30. |
| New Mexico; Oklahoma; Virginia; and all other Texas Counties | March 15 | November 30. |
§ 407.15 Area risk protection insurance for grain sorghum.
The grain sorghum crop insurance provisions for Area Risk Protection Insurance for the 2014 and succeeding crop years are as follows:
Harvest. Combining or threshing the sorghum for grain or cutting for hay, silage, or fodder.
Planted acreage. In addition to the definition contained in the Area Risk Protection Insurance Basic Provisions, sorghum seed broadcast and subsequently mechanically incorporated will not be considered planted.
(a) The insured crop will be all sorghum excluding hybrid sorghum seed:
(1) Grown on insurable acreage in the county listed on the accepted application;
(2) Properly planted by the final planting date and reported on or before the acreage reporting date;
(3) Planted with the intent to be harvested; and
(4) Not planted into an established grass or legume or interplanted with another crop.
(b) Other sorghum including hybrid sorghum seed may be insurable under this policy if specified in the Special Provisions:
(1) The insurability requirements in 2(a) apply to these other sorghum and additional requirements for insurability may be stated for these crops in the Special Provisions; and
(2) This other sorghum will be insured using the yields, rates, and prices for sorghum unless otherwise specified in the actuarial documents.
(a) Unless otherwise specified in the Special Provisions the final county revenues and final county yields will be determined prior to April 16 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the Special Provisions we will issue any payment to you prior to May 16 following the crop year and following the determination of the final county revenue or the final county yield, as applicable.
| State and county | Cancellation and termination dates | Contract change date |
|---|---|---|
| Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, Karnes, Goliad, Victoria, and Jackson Counties, Texas, and all Texas counties lying south thereof | January 31 | November 30. |
| El Paso, Hudspeth, Culberson, Reeves, Loving, Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom Green, Concho, McCulloch, San Saba, Mills, Hamilton, Bosque, Johnson, Tarrant, Wise, and Cooke Counties, Texas, and all Texas counties south and east thereof to and including Terrell, Crockett, Sutton, Kimble, Gillespie, Blanco, Comal, Guadalupe, Gonzales, De Witt, Lavaca, Colorado, Wharton, and Matagorda Counties, Texas | February 15 | November 30. |
| Alabama; Arizona; Arkansas; California; Florida; Georgia; Louisiana; Mississippi; Nevada; North Carolina; and South Carolina | February 28 | November 30. |
| All other Texas counties and all other states | March 15 | November 30. |
§ 407.16 Area risk protection insurance for soybean.
The soybean crop insurance provisions for Area Risk Protection Insurance for the 2014 and succeeding crop years are as follows:
Harvest. Combining or threshing the soybeans.
Planted acreage. In addition to the definition contained in the Area Risk Protection Insurance Basic Provisions, land on which seed is initially spread onto the soil surface by any method and which subsequently is mechanically incorporated into the soil in a timely manner and at the proper depth, will also be considered planted, unless specified otherwise in the Special Provisions.
The insured crop will be all soybeans:
(a) Grown on insurable acreage in the county listed on the accepted application;
(b) Properly planted by the final planting date and reported on or before the acreage reporting date;
(c) Planted with the intent to be harvested; and
(d) Not planted into an established grass or legume or interplanted with another crop.
(a) Unless otherwise specified in the Special Provisions final county revenues and final county yields will be determined prior to April 16 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the Special Provisions we will issue any payment to you prior to May 16 following the crop year and following the determination of the final county revenue or the final county yield, as applicable.
| State and county | Cancellation and termination dates | Contract change date |
|---|---|---|
| Jackson, Victoria, Goliad, Bee, Live Oak, McMullen, La Salle, and Dimmit Counties, Texas and all Texas counties lying south thereof | January 31 | November 30. |
| Alabama; Arizona; Arkansas; California; Florida; Georgia; Louisiana; Mississippi; Nevada; North Carolina; South Carolina; and El Paso, Hudspeth, Culberson, Reeves, Loving, Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom Green, Concho, McCulloch, San Saba, Mills, Hamilton, Bosque, Johnson, Tarrant, Wise, and Cooke Counties, Texas, and all Texas counties lying south and east thereof to and including Maverick, Zavala, Frio, Atascosa, Karnes, De Witt, Lavaca, Colorado, Wharton, and Matagorda Counties, Texas | February 28 | November 30. |
| All other Texas counties and all other states | March 15 | November 30. |
§ 407.17 Area risk protection insurance for wheat.
The wheat crop insurance provisions for Area Risk Protection Insurance for the 2014 and succeeding crop years are as follows:
Harvest. Combining or threshing the wheat for grain.
Planted acreage. In addition to the definition contained in the Area Risk Protection Insurance Basic Provisions, land on which seed is initially spread onto the soil surface by any method and which subsequently is mechanically incorporated into the soil in a timely manner and at the proper depth will also be considered planted.
The insured crop will be all wheat:
(a) Grown on insurable acreage in the county listed on the accepted application;
(b) Properly planted by the final planting date and reported on or before the acreage reporting date;
(c) Planted with the intent to be harvested;
(d) Not planted into an established grass or legume;
(e) Not interplanted with another crop; and
(f) Not planted as a nurse crop, unless seeded at the normal rate and intended for harvest as grain.
(a) Unless otherwise specified in the Special Provisions the final county revenues and final county yields will be determined prior to April 1 following the crop year.
(b) If an indemnity is due, unless otherwise specified in the Special Provisions we will issue any payment to you prior to May 1 following the crop year and following the determination of the final county revenue or the final county yield, as applicable.
| State and county | Cancellation and termination dates | Contract change date |
|---|---|---|
| All Colorado counties except Alamosa, Conejos, Costilla, Rio Grande, and Saguache; all Montana counties except Daniels and Sheridan Counties; all South Dakota counties except Corson, Walworth, Edmonds, Faulk, Spink, Beadle, Kingsbury, Miner, McCook, Turner, and Yankton Counties and all South Dakota counties east thereof; all Wyoming counties except Big Horn, Fremont, Hot Springs, Park, and Washakie Counties; and all other states except Alaska, Arizona, California, Maine, Minnesota, Nevada, New Hampshire, North Dakota, Utah, and Vermont | September 30 | June 30. |
| Arizona; California; Nevada; and Utah | October 31 | June 30 |
| Alaska; Alamosa, Conejos, Costilla, Rio Grande, and Saguache Counties, Colorado; Maine; Minnesota; Daniels and Sheridan Counties, Montana; New Hampshire; North Dakota; Corson, Walworth, Edmunds, Faulk, Spink, Beadle, Kingsbury, Miner, McCook, Turner, and Yankton Counties, South Dakota, and all South Dakota counties east thereof; Vermont; and Big Horn, Fremont, Hot Springs, Park, and Washakie Counties, Wyoming | March 15 | November 30. |
PARTS 408-411 [RESERVED]
PART 412 – PUBLIC INFORMATION – FREEDOM OF INFORMATION
§ 412.1 General statement.
This part is issued in accordance with the regulations of the Secretary of Agriculture published at 7 CFR 1.1-1.23, and appendix A, implementing the Freedom of Information Act (5 U.S.C. 552). The Secretary’s regulations, as implemented by this part, and the Risk Management Agency (RMA) govern availability of records of the Federal Crop Insurance Corporation (FCIC) as administration of the crop insurance program for FCIC.
§ 412.2 Public inspection and copying.
(a) Members of the public may request access to the information specified in § 412.2(d) for inspection and copying.
(b) To obtain access to specified information, the public should submit a written request, in accordance with 7 CFR 1.6, to the Appeals, Litigation and Legal Liaison Staff, Risk Management Agency, United States Department of Agriculture, 1400 Independence Avenue, SW, STOP 0807, room 6618-S, Washington, DC 20250-0807, from 9:00 a.m.-4:00 pm., EDT Monday through Friday, except holidays.
(c) When the information requested is not located at the office of the Appeals, Litigation and Legal Liaison Staff, the Appeals, Litigation and Legal Liaison Staff will direct the request to the appropriate office where the information can be obtained. The requester will be informed that the request has been forwarded to the appropriate office.
(d) FCIC will make available for inspection and copying, unless otherwise exempt from publication under sections 552(a)(2)(C) and 552(b):
(1) Final opinions, including concurring and dissenting opinions and orders made in the adjudication of cases; and
(2) Those statements of policy and interpretations that have been adopted by FCIC and RMA and are not published in the
(3) Administrative staff manuals and instructions to staff that affect a member of the public.
§ 412.3 Index.
5 U.S.C. 552(a)(2) requires that each agency publish, or otherwise make available, a current index of all materials available for public inspection and copying. RMA and FCIC will maintain a current index providing identifying information for the public as to any material issued, adopted, or promulgated by the Agency since July 4, 1967, and required by section 552(a)(2). Pursuant to the Freedom of Information Act provisions, RMA and FCIC have determined that in view of the small number of public requests for such index, publication of such an index would be unnecessary and impracticable. Copies of the index will be available upon request in person or by mail at the address stated in § 412.2(b).
§ 412.4 Requests for records.
The Director of the Appeals, Litigation and Legal Liaison staff, RMA located at the above stated address, is the person authorized to receive Freedom of Information Act and to determine whether to grant or deny such requests in accordance with 7 CFR 1.8.
§ 412.5 Appeals.
Any person whose request under § 412.4 is denied shall have the right to appeal such denial. This appeal shall be submitted in accordance with 7 CFR 1.13 and addressed to the Manager, Federal Crop Insurance Corporation, United States Department of Agriculture, 1400 Independence Avenue, SW., STOP 0807, room 6618-S, Washington, DC 20250-0807.
§ 412.6 Timing of responses to requests.
(a) In general, FCIC will respond to requests according to their order of receipt.
(b) Existing responsive documents or information may be maintained in RMA’s field offices. Therefore, extra time may be necessary to search and collect the documents.
PARTS 413-456 [RESERVED]
PART 457 – COMMON CROP INSURANCE REGULATIONS
§ 457.1 Applicability.
The provisions of this part are applicable only to crops for which a crop provision is published as a section to 7 CFR part 457 and then only for the crops and crop year designated by the application section.
§ 457.2 Availability of Federal crop insurance.
(a) Insurance shall be offered under the provisions of this section on the insured crop in counties within the limits prescribed by and in accordance with the provisions of the Federal Crop Insurance Act, as amended (the Act). The crops and counties shall be designated by the Manager of the Corporation from those approved by the Board of Directors of the Corporation.
(b) The insurance is offered through companies reinsured by the Federal Crop Insurance Corporation (FCIC) that offer contracts containing the same terms and conditions as the contract set out in this part. These contracts are clearly identified as being reinsured by FCIC. FCIC may offer the contract for the catastrophic level of coverage contained in this part and part 402 directly to the insured through local offices of the Department of Agriculture only if the Secretary determines that the availability of local agents is not adequate. Those contracts are specifically identified as being offered by FCIC.
(c) Except as specified in the Crop Provisions, the Catastrophic Risk Protection Endorsement (part 402 of this chapter) and part 400, subpart T of this chapter, no person may have in force more than one contract on the same crop for the same crop year in the same county.
(d) Except as specified in paragraph (c) of this section, if a person has more than one contract authorized under the Act that provides coverage for the same loss on the same crop for the same crop year in the same county, all such contracts shall be voided for that crop year and the person will be liable for the premium on all contracts, unless the person can show to the satisfaction of the Corporation that the multiple contracts of insurance were without the fault of the person.
(1) If the multiple contracts of insurance are shown to be without the fault of the person and:
(i) One contract is an additional coverage policy and the other contract is a Catastrophic Risk Protection policy, the additional coverage policy will apply if both policies are with the same insurance provider, or if not, both insurance providers agree, and the Catastrophic Risk Protection policy will be canceled (If the insurance providers do not agree, the policy with the earliest date of application will be in force and the other contract will be canceled); or
(ii) Both contracts are additional coverage policies or both are Catastrophic Risk Protection policies, the contract with the earliest signature date on the application will be valid and the other contract on that crop in the county for that crop year will be canceled, unless both policies are with the same insurance provider and the insurance provider agrees otherwise or both policies are with different insurance providers and both insurance providers agree otherwise.
(2) No liability for any indemnity, prevented planting payment, replanting payment or premium will attach to the contracts canceled as specified in paragraphs (d)(1)(i) and (ii) of this section.
(e) The person must repay all amounts received in violation of this section with interest at the rate contained in the contract (see § 457.8, paragraph 24).
(f) An insured whose contract with the Corporation or with a company reinsured by the Corporation under the Act has been terminated because of violation of the terms of the contract is not eligible to obtain multiple peril crop insurance under the Act with the Corporation or with a company reinsured by the Corporation unless the insured can show that the default in the prior contract was cured prior to the sales closing date of the contract applied for or unless the insured can show that the termination was improper and should not result in subsequent ineligibility.
(g) All applicants for insurance under the Act must advise the agent, in writing, at the time of application, of any previous applications for insurance or policies of insurance under the Act and the present status of any such applications or insurance.
§ 457.3 Premium rates, production guarantees or amounts of insurance, coverage levels, and prices at which indemnities shall be computed.
(a) The Manager shall establish premium rates, production guarantees or amounts of insurance, coverage levels, and prices at which indemnities shall be computed for the insured crop which will be included in the actuarial table on file in the applicable agents’ office for the county and which may be changed from year to year.
(b) At the time the application for insurance is made, the applicant will elect an amount of insurance or a coverage level and price from among those contained in the actuarial table for the crop year.
§ 457.4 OMB control numbers.
The information collection requirements contained in these regulations have been approved by the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. chapter 35 and have been assigned OMB number 0563-0053.
§ 457.5 Creditors.
An interest of a person in an insured crop existing by virtue of a lien, mortgage, garnishment, levy, execution, bankruptcy, involuntary transfer or other similar interest shall not entitle the holder of the interest to any benefit under the contract.
§ 457.6 [Reserved]
§ 457.7 The contract.
The insurance contract shall become effective upon the acceptance by the Corporation or the reinsured company of a duly executed application for insurance on a form prescribed by the Corporation. Changes made in the contract shall not affect its continuity from year to year. No indemnity shall be paid unless the insured complies with all terms and conditions of the contract, except as provided in the policy. The forms referred to in the contract are available at the offices of the crop insurance agent.
§ 457.8 The application and policy.
(a) Application for insurance on a form prescribed by the Corporation, or approved by the Corporation, must be made by any person who wishes to participate in the program, to cover such person’s share in the insured crop as landlord, owner-operator, crop ownership interest, or tenant. No other person’s interest in the crop may be insured under an application unless that person’s interest is clearly shown on the application and unless that other person’s interest is insured in accordance with the procedures of the Corporation. The application must be submitted to the Corporation or the reinsured company through the crop insurance agent and must be submitted on or before the applicable sales closing date on file.
(b) FCIC or the reinsured company may reject or discontinue the acceptance of applications in any county or of any individual application upon FCIC’s determination that the insurance risk is excessive.
This is an insurance policy issued by the Federal Crop Insurance Corporation (FCIC). The provisions of the policy may not be waived or modified in any way by us, your insurance agent or any employee of USDA unless the policy specifically authorizes a waiver or modification by written agreement. FCIC procedures (handbooks, manuals, memoranda, and bulletins), published on RMA’s website at www.rma.usda.gov or a successor website will be used in the administration of this policy, including the adjustment of any loss or claim submitted under this policy.
Throughout this policy, “you” and “your” refer to the named insured shown on the accepted application and “we,” “us,” and “our” refer to the Federal Crop Insurance Corporation. Unless the context indicates otherwise, use of the plural form of a word includes the singular and use of the singular form of the word includes the plural.
AGREEMENT TO INSURE: In return for the payment of the premium, and subject to all of the provisions of this policy, we agree with you to provide the insurance as stated in this policy. If there is a conflict between the Act, the regulations in 7 CFR chapter IV, and FCIC procedures, the order of precedence is: (1) The Act; (2) the regulations; and (3) FCIC procedures. If there is a conflict between the policy provisions in 7 CFR part 457 and the administrative regulations in 7 CFR part 400, the policy provisions in 7 CFR part 457 control. If a conflict exists among the policy provisions, the order of precedence is: (1) The Catastrophic Risk Protection Endorsement, as applicable; (2) the Special Provisions; (3) the Commodity Exchange Price Provisions, as applicable; (4) the Crop Provisions; and (5) these Basic Provisions.
This insurance policy is reinsured by the Federal Crop Insurance Corporation (FCIC) under the provisions of the Federal Crop Insurance Act (Act) (7 U.S.C. 1501-1524). All provisions of the policy and rights and responsibilities of the parties are specifically subject to the Act. The provisions of the policy may not be waived or varied in any way by us, our insurance agent or any other contractor or employee of ours, or any employee of USDA unless the policy specifically authorizes a waiver or modification by written agreement. We will use FCIC procedures (handbooks, manuals, memoranda and bulletins), published on RMA’s website at www.rma.usda.gov or a successor website, in the administration of this policy, including the adjustment of any loss or claim submitted under this policy. In the event that we cannot pay your loss because we are insolvent or are otherwise unable to perform our duties under our reinsurance agreement with FCIC, your claim will be settled in accordance with the provisions of this policy and FCIC will be responsible for any amounts owed. No state guarantee fund will be liable for your loss.
Throughout this policy, “you” and “your” refer to the named insured shown on the accepted application and “we,” “us,” and “our” refer to the insurance company providing insurance. Unless the context indicates otherwise, use of the plural form of a word includes the singular and use of the singular form of the word includes the plural.
AGREEMENT TO INSURE: In return for the payment of the premium, and subject to all of the provisions of this policy, we agree with you to provide the insurance as stated in this policy. If there is a conflict between the Act, the regulations in 7 CFR chapter IV, and FCIC procedures, the order of precedence is: (1) The Act; (2) the regulations; and (3) FCIC procedures. If there is a conflict between the policy provisions in 7 CFR part 457 and the administrative regulations in 7 CFR part 400, the policy provisions in 7 CFR part 457 apply. If a conflict exists among the policy, the order of precedence is: (1) The Catastrophic Risk Protection Endorsement, as applicable; (2) the Special Provisions; (3) the actuarial documents; (4) the Commodity Exchange Price Provisions, as applicable; (5) the Crop Provisions; and (6) these Basic Provisions.
Abandon. Failure to continue to care for the crop, providing care so insignificant as to provide no benefit to the crop, or failure to harvest in a timely manner, unless an insured cause of loss prevents you from properly caring for or harvesting the crop or causes damage to it to the extent that most producers of the crop on acreage with similar characteristics in the area would not normally further care for or harvest it.
Acreage report. A report required by section 6 of these Basic Provisions that contains, in addition to other required information, your report of your share of all acreage of an insured crop in the county, whether insurable or not insurable.
Acreage reporting date. The date contained in the Special Provisions or as provided in section 6 by which you are required to submit your acreage report.
Act. The Federal Crop Insurance Act (7 U.S.C. 1501 et seq.).
Actual Production History (APH). A process used to determine production guarantees in accordance with 7 CFR part 400, subpart G.
Actual yield. The yield per acre for a crop year calculated from the production records or claims for indemnities. The actual yield is determined by dividing total production (which includes harvested and appraised production) by planted acres.
Actuarial documents. The information for the crop year which is available for public inspection in your agent’s office and published on RMA’s website and which shows available crop insurance policies, coverage levels, information needed to determine amounts of insurance, prices, premium rates, premium adjustment percentages, practices, particular types or varieties of the insurable crop, insurable acreage, and other related information regarding crop insurance in the county.
Additional coverage. A level of coverage greater than catastrophic risk protection.
Administrative fee. An amount you must pay for catastrophic risk protection, and additional coverage for each crop year as specified in section 7 and the Catastrophic Risk Protection Endorsement.
Agricultural commodity. Any crop or other commodity produced, regardless of whether or not it is insurable.
Agricultural experts. Persons who are employed by the Cooperative Extension System or the agricultural departments of universities, or other persons approved by FCIC, whose research or occupation is related to the specific crop or practice for which such expertise is sought.
Annual crop. An agricultural commodity that normally must be planted each year.
Application. The form required to be completed by you and accepted by us before insurance coverage will commence. This form must be completed and filed in your agent’s office not later than the sales closing date of the initial insurance year for each crop for which insurance coverage is requested. If cancellation or termination of insurance coverage occurs for any reason, including but not limited to indebtedness, suspension, debarment, disqualification, cancellation by you or us or violation of the controlled substance provisions of the Food Security Act of 1985, a new application must be filed for the crop. Insurance coverage will not be provided if you are ineligible under the contract or under any Federal statute or regulation.
Approved yield. The actual production history (APH) yield, calculated and approved by the verifier, used to determine the production guarantee by summing the yearly actual, assigned, adjusted or unadjusted transitional yields and dividing the sum by the number of yields contained in the database, which will always contain at least four yields. The database may contain up to 10 consecutive crop years of actual or assigned yields. The approved yield may have yield options elected under section 36, revisions according to section 3, or other limitations according to FCIC procedures applied when calculating the approved yield.
Area. Land surrounding the insured acreage with geographic characteristics, topography, soil types and climatic conditions similar to the insured acreage.
Assignment of indemnity. A transfer of policy rights, made on our form, and effective when approved by us in writing, whereby you assign your right to an indemnity payment for the crop year only to creditors or other persons to whom you have a financial debt or other pecuniary obligation.
Average yield. The yield calculated by totaling the yearly actual yields, assigned yields in accordance with sections 3(f)(1) (failure to provide production report), 3(h)(1) (excessive yields), and 3(i) (second crop planted without double cropping history on prevented planting acreage), and adjusted or unadjusted transitional yields, and dividing the total by the number of yields contained in the database.
Basic unit. All insurable acreage of the insured crop in the county on the date coverage begins for the crop year excluding acreage reported and insured as an enterprise unit in which the remaining insurable acreage is reported and insured as a basic or optional unit:
(1) In which you have 100 percent crop share; or
(2) That is owned by one person and operated by another person on a share basis. (Example: If, in addition to the land you own, you rent land from five landlords, three on a crop share basis and two on a cash basis, you would be entitled to four units; one for each crop share lease and one that combines the two cash leases and the land you own.) Land that would otherwise be one unit may, in certain instances, be divided according to guidelines contained in section 34 of these Basic Provisions and in the applicable Crop Provisions.
Beginning farmer or rancher. An individual who has not actively operated and managed a farm or ranch in any state, with an insurable interest in a crop or livestock as an owner-operator, landlord, tenant, or sharecropper for more than five crop years, as determined in accordance with FCIC procedures. Any crop year’s insurable interest may, at your election, be excluded if earned while under the age of 18, while in full-time military service of the United States, or while in post-secondary education, in accordance with FCIC procedures. A person other than an individual may be eligible for beginning farmer or rancher benefits if there is at least one individual substantial beneficial interest holder and all individual substantial beneficial interest holders qualify as a beginning farmer or rancher.
Buffer zone. Acreage designated in your organic plan that separates agricultural commodities grown under organic farming practices from those grown under non-organic farming practices. A buffer zone must be sufficient in size or other features, as stated in the National Organic Program published in 7 CFR part 205, to prevent or minimize the possibility of unintended contact by prohibited substances or organisms applied to adjacent land acres with an area that is part of the certified organic farming operation.
Cancellation date. The calendar date specified in the Crop Provisions on which coverage for the crop will automatically renew unless canceled in writing by either you or us or terminated in accordance with the policy terms.
Catastrophic risk protection. The minimum level of coverage offered by FCIC. Catastrophic risk protection is not available with revenue protection.
Catastrophic Risk Protection Endorsement. The part of the crop insurance policy that contains provisions of insurance that are specific to catastrophic risk protection.
Certified organic acreage. Acreage in the certified organic farming operation that has been certified by a certifying agent as conforming to organic standards in accordance with the Organic Foods Production Act of 1990 (7 U.S.C. 6501 et seq.) and 7 CFR part 205.
Certifying agent. A private or governmental entity accredited by the USDA Secretary of Agriculture for the purpose of certifying a production, processing or handling operation as organic.
Claim for indemnity. A claim made on our form that contains the information necessary to pay the indemnity, as specified in the applicable FCIC procedures, and complies with the requirements in section 14.
Code of Federal Regulations (CFR). The codification of general and permanent rules published in the
Commodity Exchange Price Provisions (CEPP). A part of the policy that is used for all crops for which revenue protection is available, regardless of whether you elect revenue protection or yield protection for such crops. This document includes the information necessary to derive the projected price and the harvest price for the insured crop, as applicable.
Consent. Approval in writing by us allowing you to take a specific action.
Contract. (See “policy”).
Contract change date. The calendar date by which changes to the policy, if any, will be made available in accordance with section 4 of these Basic Provisions.
Conventional farming practice. A system or process that is necessary to produce an agricultural commodity, excluding organic farming practices.
Cooperative Extension System. A nationwide network consisting of a State office located at each State’s land-grant university, and local or regional offices. These offices are staffed by one or more agricultural experts, who work in cooperation with the National Institute of Food and Agriculture, and who provide information to agricultural producers and others.
County. Any county, parish, or other political subdivision of a state shown on your accepted application, including acreage in a field that extends into an adjoining county if the county boundary is not readily discernible.
Coverage. The insurance provided by this policy, against insured loss of production or value, by unit as shown on your summary of coverage.
Coverage begins, date. The calendar date insurance begins on the insured crop, as contained in the Crop Provisions, or the date planting begins on the unit (see section 11 of these Basic Provisions for specific provisions relating to prevented planting).
Cover crop. A crop generally recognized by agricultural experts as agronomically sound for the area for erosion control or other purposes related to conservation or soil improvement, unless otherwise specified in the Special Provisions. A cover crop may be considered a second crop (see the definition of “second crop”).
Crop Provisions. The part of the policy that contains the specific provisions of insurance for each insured crop.
Crop year. The period within which the insured crop is normally grown, regardless of whether or not it is actually grown, and designated by the calendar year in which the insured crop is normally harvested, unless otherwise specified in the Crop Provisions.
Damage. Injury, deterioration, or loss of production of the insured crop due to insured or uninsured causes.
Days. Calendar days.
Deductible. The amount determined by subtracting the coverage level percentage you choose from 100 percent. For example, if you elected a 65 percent coverage level, your deductible would be 35 percent (100% − 65% = 35%).
Delinquent debt. Has the same meaning as the term defined in 7 CFR part 400, subpart U.
Direct marketing. The sale of the insured crop directly to consumers without the intervention of an intermediary such as a wholesaler, retailer, packer, processor, shipper, buyer, or broker. Production records are controlled exclusively by the policyholder. Examples of direct marketing include selling through an on-farm or roadside stand, a farmer’s market, or permitting the general public to enter the acreage for the purpose of harvesting or picking all or a portion of the crop. Only the portion of the crop sold directly to consumers will be considered direct marketed.
Disinterested third party. A person that does not have any familial relationship (parents, brothers, sisters, children, spouse, grandchildren, aunts, uncles, nieces, nephews, first cousins, or grandparents, related by blood, adoption or marriage, are considered to have a familial relationship) with you or who will not benefit financially from the sale of the insured crop. Persons who are authorized to conduct quality analysis in accordance with the Crop Provisions are considered disinterested third parties unless there is a familial relationship.
Double crop. Producing two or more crops for harvest on the same acreage in the same crop year.
Earliest planting date. The initial planting date contained in the Special Provisions, which is the earliest date you may plant an insured agricultural commodity and qualify for a replanting payment if such payments are authorized by the Crop Provisions.
End of insurance period, date of. The date upon which your crop insurance coverage ceases for the crop year (see Crop Provisions and section 11).
Enterprise unit. All insurable acreage of the same insured crop or all insurable irrigated or non-irrigated acreage of the same insured crop in the county in which you have a share on the date coverage begins for the crop year, provided the requirements of section 34 are met.
Farm management record. A contemporaneous record provided by you that documents your actual production recorded at the time of harvest, storing of the crop, or use of the crop for feed, and can be used to substantiate your actual production reported on the production report.
Field. All acreage of tillable land within a natural or artificial boundary (e.g., roads, waterways, fences, etc.). Different planting patterns or planting different crops do not create separate fields.
Final planting date. The date contained in the Special Provisions for the insured crop by which the crop must initially be planted in order to be insured for the full production guarantee or amount of insurance per acre.
First insured crop. With respect to a single crop year and any specific crop acreage, the first instance that an agricultural commodity is planted for harvest or prevented from being planted and is insured under the authority of the Act. For example, if winter wheat that is not insured is planted on acreage that is later planted to soybeans that are insured, the first insured crop would be soybeans. If the winter wheat was insured, it would be the first insured crop.
FSA. The Farm Service Agency, an agency of the USDA, or a successor agency.
FSA farm number. The number assigned to the farm by the local FSA office.
Generally recognized. When agricultural experts or organic agricultural experts, as applicable, are aware of the production method or practice and there is no genuine dispute regarding whether the production method or practice allows the crop to make normal progress toward maturity and produce at least the yield used to determine the production guarantee or amount of insurance.
Good farming practices. The production methods utilized to produce the insured crop and allow it to make normal progress toward maturity and produce at least the yield used to determine the production guarantee or amount of insurance, including any adjustments for late planted acreage, which are those generally recognized by agricultural experts or organic agricultural experts, depending on the practice, for the area. We may, or you may request us to, contact FCIC to determine if production methods will be considered “good farming practices.”
Harvest price. A price determined in accordance with the Commodity Exchange Price Provisions and used to value production to count for revenue protection.
Harvest price exclusion. Revenue protection with the use of the harvest price excluded when determining your revenue protection guarantee. This election is continuous unless canceled by the cancellation date.
Household. A domestic establishment including the members of a family (parents, brothers, sisters, children, spouse, grandchildren, aunts, uncles, nieces, nephews, first cousins, or grandparents, related by blood, adoption or marriage, are considered to be family members) and others who live under the same roof.
Insurable interest. Your percentage of the insured crop that is at financial risk.
Insurable loss. Damage for which coverage is provided under the terms of your policy, and for which you accept an indemnity payment.
Insured. The named person as shown on the application accepted by us. This term does not extend to any other person having a share or interest in the crop (for example, a partnership, landlord, or any other person) unless specifically indicated on the accepted application.
Insured crop. The crop in the county for which coverage is available under your policy as shown on the application accepted by us.
Intended acreage report. A report of the acreage you intend to plant, by crop, for the current crop year and used solely for the purpose of establishing eligible prevented planting acreage, as required in section 17.
Interplanted. Acreage on which two or more crops are planted in a manner that does not permit separate agronomic maintenance or harvest of the insured crop.
Irrigated practice. A method of producing a crop by which water is artificially applied during the growing season by appropriate systems and at the proper times, with the intention of providing the quantity of water needed to produce at least the yield used to establish the irrigated production guarantee or amount of insurance on the irrigated acreage planted to the insured crop.
Late planted. Acreage initially planted to the insured crop after the final planting date.
Late planting period. The period that begins the day after the final planting date for the insured crop and ends 25 days after the final planting date, unless otherwise specified in the Crop Provisions or Special Provisions.
Liability. Your total amount of insurance, value of your production guarantee, or revenue protection guarantee for the unit determined in accordance with the Settlement of Claim provisions of the applicable Crop Provisions.
Limited resource farmer. Has the same meaning as the term defined by USDA at http://lrftool.sc.egov.usda.gov/LRP_Definition.aspx or successor website.
NAP. Noninsured Crop Disaster Assistance Program published in 7 CFR part 1437, administered by FSA.
Native sod. Acreage that has no record of being tilled (determined in accordance with information collected and maintained by an agency of the USDA or other verifiable records that you provide and are acceptable to us) for the production of an annual crop on or before February 7, 2014, and on which the plant cover is composed principally of native grasses, grass-like plants, forbs, or shrubs suitable for grazing and browsing.
Negligence. The failure to use such care as a reasonably prudent and careful person would use under similar circumstances.
Non-contiguous. Acreage of an insured crop that is separated from other acreage of the same insured crop by land that is neither owned by you nor rented by you for cash or a crop share. However, acreage separated by only a public or private right-of-way, waterway, or an irrigation canal will be considered as contiguous.
Offset. The act of deducting one amount from another amount.
Organic agricultural experts. Persons who are employed by the following organizations: Appropriate Technology Transfer for Rural Areas, Sustainable Agriculture Research and Education or the Cooperative Extension System, the agricultural departments of universities, or other persons approved by FCIC, whose research or occupation is related to the specific organic crop or practice for which such expertise is sought.
Organic crop. An agricultural commodity that is organically produced consistent with section 2103 of the Organic Foods Production Act of 1990 (7 U.S.C. 6502).
Organic farming practice. A system of plant production practices used on organic acreage and transitional acreage to produce an organic crop that is approved by a certifying agent in accordance with 7 CFR part 205.
Organic plan. A written plan, in accordance with the National Organic Program published in 7 CFR part 205, that describes the organic farming practices that you and a certifying agent agree upon annually or at such other times as prescribed by the certifying agent.
Organic standards. Standards in accordance with the Organic Foods Production Act of 1990 (7 U.S.C. 6501 et seq.) and 7 CFR part 205.
Perennial crop. A plant, bush, tree or vine crop that has a life span of more than one year.
Person. An individual, partnership, association, corporation, estate, trust, or other legal entity, and wherever applicable, a State or a political subdivision or agency of a State. “Person” does not include the United States Government or any agency thereof.
Planted acreage. Land in which seed, plants, or trees have been placed, appropriate for the insured crop and planting method, at the correct depth, into a seedbed that has been properly prepared for the planting method and production practice.
Policy. The agreement between you and us to insure an agricultural commodity and consisting of the accepted application, these Basic Provisions, the Crop Provisions, the Special Provisions, the Commodity Exchange Price Provisions, if applicable, other applicable endorsements or options, the actuarial documents for the insured agricultural commodity, the Catastrophic Risk Protection Endorsement, if applicable, and the applicable regulations published in 7 CFR chapter IV. Insurance for each agricultural commodity in each county will constitute a separate policy.
Practical to replant. Our determination, after loss or damage to the insured crop, that you are able to replant to the same crop in such areas and under such circumstances as it is customary to replant and that replanting the insured crop will allow the crop to attain maturity prior to the calendar date for the end of the insurance period. We may consider circumstances as to whether: (1) It is physically possible to replant the acreage; (2) seed germination, emergence, and formation of a healthy plant is likely; (3) field, soil, and growing conditions allow for proper planting and growth of the replanted crop to reach maturity; or (4) other conditions exist, as provided by the Crop Provisions or Special Provisions. Unless we determine it is not practical to replant, based on the circumstances listed above, it will be considered practical to replant through: (1) The final planting date if no late planting period is applicable; (2) the end of the late planting period if the late planting period is less than 10 days; or (3) the 10th day after the final planting date if the crop has a late planting period of 10 days or more. We will consider it practical to replant regardless of the availability of seed or plants, or the input costs necessary to produce the insured crop such as seed or plants, irrigation water, etc.
Premium billing date. The earliest date upon which you will be billed for insurance coverage based on your acreage report. The premium billing date is contained in the Special Provisions.
Prevented planting. Failure to plant the insured crop by the final planting date designated in the Special Provisions for the insured crop in the county, or within any applicable late planting period, due to an insured cause of loss that is general to the surrounding area and that prevents other producers from planting acreage with similar characteristics. Failure to plant because of uninsured causes such as lack of proper equipment or labor to plant the acreage, or use of a particular production method, is not considered prevented planting.
Price election. The amount contained in the actuarial documents that is the value per pound, bushel, ton, carton, or other applicable unit of measure for the purposes of determining premium and indemnity under the policy. A price election is not applicable for crops for which revenue protection is available.
Production guarantee (per acre). The number of pounds, bushels, tons, cartons, or other applicable units of measure determined by multiplying the approved yield per acre by the coverage level percentage you elect.
Production record. A written record that documents your actual production reported on the production report. The record must be an acceptable verifiable record or an acceptable farm management record as authorized by FCIC procedures.
Production report. A written report provided by you showing your annual production that will be used by us to determine your yield for insurance purposes in accordance with section 3. The report contains yield information for the previous year(s), including planted acreage and production. This report must be supported by acceptable production records.
Prohibited substance. Any biological, chemical, or other agent that is prohibited from use or is not included in the organic standards for use on any certified organic, transitional or buffer zone acreage. Lists of such substances are contained at 7 CFR part 205.
Projected price. The price for each crop determined in accordance with the Commodity Exchange Price Provisions. The applicable projected price is used for each crop for which revenue protection is available, regardless of whether you elect to obtain revenue protection or yield protection for such crop.
Replanted crop. (1) The same agricultural commodity replanted on the same acreage as the insured crop for harvest in the same crop year if:
(i) The replanting is specifically made optional by the policy and you elect to replant the crop and insure it under the policy covering the first insured crop; or
(ii) Replanting is required by the policy.
(2) Unless otherwise specified in the Special Provisions, the crop will be considered an insured replanted crop and no replanting payment will be paid if we have determined it is not practical to replant the insured crop and you choose to plant the acreage to the same insured crop within or prior to the late planting period or after the final planting date if no late planting period is applicable. If we determine it is not practical to replant and you plant the acreage to the same insured crop, any indemnity will be based on the greater of:
(i) Our appraised production on the initially planted crop;
(ii) Our subsequent appraisal of the replanted crop if the replanted crop is not harvested; or
(iii) The harvested production from the replanted crop.
Replanting. Performing the cultural practices necessary to prepare the land to replace the seed or plants of the damaged or destroyed insured crop and then replacing the seed or plants of the same crop in the same insured acreage. The same crop does not necessarily mean the same type or variety of the crop unless different types or varieties constitute separate crops or it is otherwise specified in the policy.
Representative sample. Portions of the insured crop that must remain in the field for examination and review by our loss adjuster when making a crop appraisal, as specified in the Crop Provisions. In certain instances we may allow you to harvest the crop and require only that samples of the crop residue be left in the field.
Revenue protection. A plan of insurance that provides protection against loss of revenue due to a production loss, price decline or increase, or a combination of both. If the harvest price exclusion is elected, the insurance coverage provides protection only against loss of revenue due to a production loss, price decline, or a combination of both.
Revenue protection guarantee (per acre). For revenue protection only, the amount determined by multiplying the production guarantee (per acre) by the greater of your projected price or your harvest price. If the harvest price exclusion is elected, the production guarantee (per acre) is only multiplied by your projected price.
RMA’s website. A website hosted by RMA and located at www.rma.usda.gov or a successor website.
Sales closing date. A date contained in the Special Provisions by which an application must be filed. The last date by which you may change your crop insurance coverage for a crop year.
Second crop. With respect to a single crop year, the next occurrence of planting any agricultural commodity for harvest following a first insured crop on the same acreage. The second crop may be the same or a different agricultural commodity as the first insured crop, except the term does not include a replanted crop. If following a first insured crop, a cover crop that is planted on the same acreage and harvested for grain or seed is considered a second crop. A crop that is covered by NAP or receives other USDA benefits associated with forage crops is considered a second crop. A crop meeting the conditions stated in this definition is considered a second crop regardless of whether it is insured.
Section. For the purposes of unit structure, a unit of measure under a rectangular survey system describing a tract of land usually one mile square and usually containing approximately 640 acres.
Share. Your insurable interest in the insured crop as an owner, operator, or tenant at the time insurance attaches. However, only for the purpose of determining the amount of indemnity, your share will not exceed your share at the earlier of the time of loss or the beginning of harvest.
Special Provisions. The part of the policy that contains specific provisions of insurance for each insured crop that may vary by geographic area.
State. The state shown on your accepted application.
Substantial beneficial interest. An interest held by any person of at least 10 percent in you (e.g., there are two partnerships that each have a 50 percent interest in you and each partnership is made up of two individuals, each with a 50 percent share in the partnership. In this case, each individual would be considered to have a 25 percent interest in you, and both the partnerships and the individuals would have a substantial beneficial interest in you. The spouses of the individuals would not be considered to have a substantial beneficial interest unless the spouse was one of the individuals that made up the partnership. However, if each partnership is made up of six individuals with equal interests, then each would only have an 8.33 percent interest in you and although the partnership would still have a substantial beneficial interest in you, the individuals would not for the purposes of reporting in section 2). The spouse of any individual applicant or individual insured will be presumed to have a substantial beneficial interest in the applicant or insured unless the spouses can prove they are legally separated or otherwise legally separate under the applicable State dissolution of marriage laws. Any child of an individual applicant or individual insured will not be considered to have a substantial beneficial interest in the applicant or insured unless the child has a separate legal interest in such person.
Summary of coverage. Our statement to you, based upon your acreage report, specifying the insured crop and the guarantee or amount of insurance coverage provided by unit.
Sustainable farming practice. A system or process for producing an agricultural commodity, excluding organic farming practices, that is necessary to produce the crop and is generally recognized by agricultural experts for the area to conserve or enhance natural resources and the environment.
Tenant. A person who rents land from another person for a share of the crop or a share of the proceeds of the crop (see the definition of “share” above).
Termination date. The calendar date contained in the Crop Provisions upon which your insurance ceases to be in effect because of nonpayment of any amount due us under the policy, including premium.
Tilled. The termination of existing plants by plowing, disking, burning, application of chemicals, or by other means to prepare acreage for the production of a crop.
Timely planted. Planted on or before the final planting date designated in the Special Provisions for the insured crop in the county.
Transitional acreage. Acreage in transition to organic where organic farming practices are being followed, but the acreage does not yet qualify as certified organic acreage.
USDA. United States Department of Agriculture.
Verifiable record. A contemporaneous record from a disinterested third party that substantiates your actual production reported on the production report. The record must be a document or evidence from a disinterested third party that is accurate and can be validated or verified by us.
Veteran farmer or rancher. (1) An individual who has served active duty in the United States Army, Navy, Marine Corps, Air Force, or Coast Guard, including the reserve components; was discharged or released under conditions other than dishonorable; and:
(i) Has not operated a farm or ranch;
(ii) Has operated a farm or ranch for not more than 5 years; or
(iii) First obtained status as a veteran during the most recent 5-year period.
(2) A person, other than an individual, may be eligible for veteran farmer or rancher benefits if all substantial beneficial interest holders qualify individually as a veteran farmer or rancher in accordance with paragraph (1) of this definition; except in cases in which there is only a married couple, then a veteran and non-veteran spouse are considered a veteran farmer or rancher.
Void. When the policy is considered not to have existed for a crop year.
Volunteer crop. A crop that was planted in a previous crop year on the applicable acreage or drifted from other acreage, successfully self-seeded, and is growing this crop year on the applicable acreage without being intentionally sown or managed.
Whole-farm unit. All insurable acreage of all the insured crops planted in the county in which you have a share on the date coverage begins for each crop for the crop year and for which the whole-farm unit structure is available in accordance with section 34.
Written agreement. A document that alters designated terms of a policy as authorized under these Basic Provisions, the Crop Provisions, or the Special Provisions for the insured crop (see section 18).
Yield protection. A plan of insurance that only provides protection against a production loss and is available only for crops for which revenue protection is available.
Yield protection guarantee (per acre). When yield protection is selected for a crop that has revenue protection available, the amount determined by multiplying the production guarantee by your projected price.
(a) This is a continuous policy and will remain in effect for each crop year following the acceptance of the original application until canceled by you in accordance with the terms of the policy or terminated by operation of the terms of the policy or by us. In accordance with section 4, FCIC may change the coverage provided from year to year.
(b) With respect to your application for insurance:
(1) You must include your social security number (SSN) if you are an individual (if you are an individual applicant operating as a business, you may provide an employer identification number (EIN) but you must also provide your SSN); or
(2) You must include your EIN if you are a person other than an individual;
(3) In addition to the requirements of section 2(b)(1) or (2), you must include the following for all persons who have a substantial beneficial interest in you:
(i) The SSN for individuals; or
(ii) The EIN for persons other than individuals and the SSNs for all individuals that comprise the person with the EIN if such individuals also have a substantial beneficial interest in you;
(4) You must include:
(i) Your election of revenue protection, yield protection, or other available plan of insurance; coverage level; percentage of price election or percentage of projected price, as applicable; crop, type, variety, or class; and any other material information required on the application to insure the crop; and
(ii) All the information required in section 2(b)(4)(i) or your application will not be accepted and no coverage will be provided;
(5) Your application will not be accepted and no insurance will be provided for the year of application if the application does not contain your SSN or EIN. If your application contains an incorrect SSN or EIN for you, your application will be considered not to have been accepted, no insurance will be provided for the year of application and for any subsequent crop years, as applicable, and such policies will be void if:
(i) Such number is not corrected by you; or
(ii) You correct the SSN or EIN but:
(A) You cannot prove that any error was inadvertent (Simply stating the error was inadvertent is not sufficient to prove the error was inadvertent); or
(B) It is determined that the incorrect number would have allowed you to obtain disproportionate benefits under the crop insurance program, you are determined to be ineligible for insurance or you could avoid an obligation or requirement under any State or Federal law;
(6) With respect to persons with a substantial beneficial interest in you:
(i) The insurance coverage for all crops included on your application will be reduced proportionately by the percentage interest in you of persons with a substantial beneficial interest in you (presumed to be 50 percent for spouses of individuals) if the SSNs or EINs of such persons are included on your application, the SSNs or EINs are correct, and the persons with a substantial beneficial interest in you are ineligible for insurance;
(ii) Your policies for all crops included on your application, and for all applicable crop years, will be void if the SSN or EIN of any person with a substantial beneficial interest in you is incorrect or is not included on your application and:
(A) Such number is not corrected or provided by you, as applicable;
(B) You cannot prove that any error or omission was inadvertent (Simply stating the error or omission was inadvertent is not sufficient to prove the error or omission was inadvertent); or
(C) Even after the correct SSN or EIN is provided by you, it is determined that the incorrect or omitted SSN or EIN would have allowed you to obtain disproportionate benefits under the crop insurance program, the person with a substantial beneficial interest in you is determined to be ineligible for insurance, or you or the person with a substantial beneficial interest in you could avoid an obligation or requirement under any State or Federal law; or
(iii) Except as provided in sections 2(b)(6)(ii)(B) and (C), your policies will not be voided if you subsequently provide the correct SSN or EIN for persons with a substantial beneficial interest in you and the persons are eligible for insurance;
(7) When any of your policies are void under sections 2(b)(5) or (6):
(i) You must repay any indemnity, prevented planting payment or replanting payment that may have been paid for all applicable crops and crop years;
(ii) Even though the policies are void, you will still be required to pay an amount equal to 20 percent of the premium that you would otherwise be required to pay; and
(iii) If you previously paid premium or administrative fees, any amount in excess of the amount required in section 2(b)(7)(ii) will be returned to you;
(8) Notwithstanding any of the provisions in this section, if you certify to an incorrect SSN or EIN, or receive an indemnity, prevented planting payment or replanting payment and the SSN or EIN was not correct, you may be subject to civil, criminal or administrative sanctions;
(9) If any of the information regarding persons with a substantial beneficial interest in you changes after the sales closing date for the previous crop year, you must revise your application by the sales closing date for the current crop year to reflect the correct information. However, if such information changed less than 30 days before the sales closing date for the current crop year, you must revise your application by the sales closing date for the next crop year. If you fail to provide the required revisions, the provisions in section 2(b)(6) will apply; and
(10) If you are, or a person with a substantial beneficial interest in you is, not eligible to obtain a SSN or EIN, whichever is required, you must request an assigned number for the purposes of this policy from us:
(i) A number will be provided only if you can demonstrate you are, or a person with a substantial beneficial interest in you is, eligible to receive Federal benefits;
(ii) If a number cannot be provided for you in accordance with section 2(b)(10)(i), your application will not be accepted; or
(iii) If a number cannot be provided for any person with a substantial beneficial interest in you in accordance with section 2(b)(10)(i), the amount of coverage for all crops on the application will be reduced proportionately by the percentage interest of such person in you.
(c) After acceptance of the application, you may not cancel this policy for the initial crop year. Thereafter, the policy will continue in force for each succeeding crop year unless canceled or terminated as provided below.
(d) Either you or we may cancel this policy after the initial crop year by providing written notice to the other on or before the cancellation date shown in the Crop Provisions.
(e) Any amount owed to us for any policy authorized under the Act will be offset from any indemnity or prevented planting payment due you for this or any other crop insured with us under the authority of the Act.
(1) Even if your claim has not yet been paid, you must still pay the premium and administrative fee on or before the termination date for you to remain eligible for insurance.
(2) If we offset any amount due us from an indemnity or prevented planting payment owed to you, the date of payment for the purpose of determining whether you have a delinquent debt will be the date that you submit the claim for indemnity in accordance with section 14(e) (Your Duties).
(3) For this agricultural commodity policy, your premium and administrative fees will be offset from any indemnity or prevented planting payment due to you even if it is prior to the premium billing date.
(4) For any other agricultural commodity policy insured with us and it is:
(i) Prior to the premium billing date, and you agree, your premium and administrative fees will be offset from any indemnity or prevented planting payment due to you; or
(ii) On or after the premium billing date, your premium and administrative fees will be offset from any indemnity or prevented planting payment due to you.
(f) A delinquent debt for any policy will make you ineligible to obtain crop insurance authorized under the Act for any subsequent crop year and result in termination of all policies in accordance with section 2(f)(2).
(1) With respect to ineligibility:
(i) Ineligibility for crop insurance will be effective on:
(A) The date that a policy was terminated in accordance with section 2(f)(2) for the crop for which you failed to pay premium, an administrative fee, or any related interest owed, as applicable;
(B) The payment due date contained in any notification of indebtedness for any overpaid indemnity, prevented planting payment or replanting payment, if you fail to pay the amount owed, including any related interest owed, as applicable, by such due date; or
(C) The termination date for the crop year prior to the crop year in which a scheduled payment is due under a written payment agreement if you fail to pay the amount owed by any payment date in any agreement to pay the debt.
(ii) If you are ineligible and a policy has been terminated in accordance with section 2(f)(2), you will not receive any indemnity, prevented planting payment or replanting payment, if applicable, and such ineligibility and termination of the policy may affect your eligibility for benefits under other USDA programs. Any indemnity, prevented planting payment or replanting payment that may be owed for the policy before it has been terminated will remain owed to you, but may be offset in accordance with section 2(e), unless your policy was terminated in accordance with sections 2(f)(2)(i)(A), (B) or (D).
(2) With respect to termination:
(i) Termination will be effective on:
(A) For a policy with unpaid administrative fees or premiums, the termination date immediately subsequent to the billing date for the crop year (For policies for which the sales closing date is prior to the termination date, such policies will terminate for the current crop year even if insurance attached prior to the termination date. Such termination will be considered effective as of the sales closing date and no insurance will be considered to have attached for the crop year and no indemnity, prevented planting or replanting payment will be owed);
(B) For a policy with other amounts due, the termination date immediately following the date you have a delinquent debt (For policies for which the sales closing date is prior to the termination date, such policies will terminate for the current crop year even if insurance attached prior to the termination date. Such termination will be considered effective as of the sales closing date and no insurance will be considered to have attached for the crop year and no indemnity, prevented planting or replanting payment will be owed);
(C) For all other policies that are issued by us under the authority of the Act, the termination date that coincides with the termination date for the policy with the delinquent debt or, if there is no coincidental termination date, the termination date immediately following the date you become ineligible; or
(D) For execution of a written payment agreement and failure to make any scheduled payment, the termination date for the crop year prior to the crop year in which you failed to make the scheduled payment (for this purpose only, the crop year will start the day after the termination date and end on the next termination date, e.g., if the termination date is November 30 and you fail to make a payment on November 15, 2019, your policy will terminate on November 30, 2018, for the 2019 crop year).
(ii) For all policies terminated under sections 2(f)(2)(i)(A), (B), or (D), any indemnities, prevented planting payments or replanting payments paid subsequent to the termination date must be repaid.
(iii) Once the policy is terminated, it cannot be reinstated for the current crop year unless:
(A) The termination was in error;
(B) The Administrator of the Risk Management Agency, at his or her sole discretion, determines that the following are met:
(1) In accordance with 7 CFR part 400, subpart U, and FCIC procedures, you provide documentation that your inadvertent failure to pay your debt is due to an unforeseen or unavoidable event or other extenuating circumstances that created the inadvertent failure for you to make timely payment;
(2) You remit full payment of the delinquent debt owed to us or FCIC with your request submitted in accordance with section 2(f)(2)(iii)(B)(3); and
(3) You submit a written request for reinstatement of your policy to us no later than 60 days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in the notice to you of the amount due, if applicable.
(i) If authorization for reinstatement, as defined in 7 CFR part 400, subpart U, is granted, your policies will be reinstated effective at the beginning of the crop year for which you were determined ineligible, and you will be entitled to all applicable benefits under such policies, provided you meet all eligibility requirements and comply with the terms of the policy; and
(ii) There is no evidence of fraud or misrepresentation; or
(C) We determine that, in accordance with 7 CFR part 400, subpart U, and FCIC procedures, the following are met:
(1) You can demonstrate:
(i) You made timely payment for the amount of premium owed but you inadvertently omitted some small amount, such as the most recent month’s interest or a small administrative fee;
(ii) The amount of the payment was clearly transposed from the amount that was otherwise due (For example, you owed $892 but you paid $829);
(iii) You timely made the full payment of the amount owed but the delivery of that payment was delayed, and was postmarked no more than seven calendar days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in a notice to you of an amount due, as applicable; or
(iv) For previously executed written payment agreements, you made the full payment of the scheduled payment amount owed within 15 calendar days after the missed payment date.
(2) You remit full payment of the delinquent debt owed to us; and
(3) You submit a written request for reinstatement of your policy to us in accordance with 7 CFR part 400, subpart U, and applicable procedures no later than 30 days after the termination date or the missed payment date of a previously executed written payment agreement, or in the case of overpaid indemnity or any amount that became due after the termination date, the due date specified in the notice to you of the amount due, if applicable; and
(4) If authorization for reinstatement, as defined in 7 CFR part 400, subpart U, is granted, your policies will be reinstated effective at the beginning of the crop year for which you were determined ineligible, and you will be entitled to all applicable benefits under such policies, provided you meet all eligibility requirements and comply with the terms of the policy; and
(5) There is no evidence of fraud or misrepresentation.
(iv) A determination made under:
(A) Section 2(f)(2)(iii)(B) may only be appealed to the National Appeals Division in accordance with 7 CFR part 11; and
(B) Section 2(f)(2)(iii)(C) may only be appealed in accordance with section 20.
(3) To regain eligibility, you must:
(i) Repay the delinquent debt in full;
(ii) Execute a written payment agreement, in accordance with 7 CFR part 400, subpart U, and make payments in accordance with the agreement; or
(iii) Have your debts discharged in bankruptcy.
(4) After you become eligible for crop insurance, if you want to obtain coverage for your crops, you must submit a new application on or before the sales closing date for the crop (Since applications for crop insurance cannot be accepted after the sales closing date, if you make any payment after the sales closing date, you cannot apply for insurance until the next crop year).
(5) For example, for the 2019 crop year, if crop A, with a termination date of October 31, 2018, and crop B, with a termination date of March 15, 2019, are insured and you do not pay the premium for crop A by the termination date, you are ineligible for crop insurance as of October 31, 2018, and crop A’s policy is terminated as of that date. Crop B’s policy does not terminate until March 15, 2019, and an indemnity for the 2018 crop year may still be owed. If you enter into a written payment agreement on September 25, 2019, the earliest date by which you can obtain crop insurance for crop A is to apply for crop insurance by the October 31, 2019, sales closing date and for crop B is to apply for crop insurance by the March 15, 2020, sales closing date. If you fail to make a payment that was scheduled to be made on April 1, 2020, your policy will terminate as of October 31, 2019, for crop A, and March 15, 2020, for crop B, and no indemnity, prevented planting payment or replanting payment will be due for that crop year for either crop. You will not be eligible to apply for crop insurance for any crop until after the amounts owed are paid in full or you have your debts discharged in bankruptcy.
(6) If you are determined to be ineligible under section 2(f), persons with a substantial beneficial interest in you may also be ineligible until you become eligible again.
(g) In cases where there has been a death, disappearance, judicially declared incompetence, or dissolution of any insured person:
(1) If any married individual insured dies, disappears, or is judicially declared incompetent, the named insured on the policy will automatically convert to the name of the spouse if:
(i) The spouse was included on the policy as having a substantial beneficial interest in the named insured; and
(ii) The spouse has a share of the crop.
(2) The provisions in section 2(g)(3) will be applicable if:
(i) Any partner, member, shareholder, etc., of an insured entity dies, disappears, or is judicially declared incompetent, and such event automatically dissolves the entity; or
(ii) An individual, whose estate is left to a beneficiary other than a spouse or left to the spouse and the criteria in section 2(g)(1) are not met, dies, disappears, or is judicially declared incompetent.
(3) If section 2(g)(2) applies and the death, disappearance, or judicially declared incompetence occurred:
(i) More than 30 days before the cancellation date, the policy is automatically canceled as of the cancellation date and a new application must be submitted; or
(ii) Thirty days or less before the cancellation date, or after the cancellation date, the policy will continue in effect through the crop year immediately following the cancellation date and be automatically canceled as of the cancellation date immediately following the end of the insurance period for the crop year, unless canceled by the cancellation date prior to the start of the insurance period:
(A) A new application for insurance must be submitted prior to the sales closing date for coverage for the subsequent crop year; and
(B) Any indemnity, replanting payment or prevented planting payment will be paid to the person or persons determined to be beneficially entitled to the payment and such person or persons must comply with all policy provisions and pay the premium.
(4) If any insured entity is dissolved for reasons other than death, disappearance, or judicially declared incompetence:
(i) Before the cancellation date, the policy is automatically canceled as of the cancellation date and a new application must be submitted; or
(ii) On or after the cancellation date, the policy will continue in effect through the crop year immediately following the cancellation date and be automatically canceled as of the cancellation date immediately following the end of the insurance period for the crop year, unless canceled by the cancellation date prior to the start of the insurance period:
(A) A new application for insurance must be submitted prior to the sales closing date for coverage for the subsequent crop year; and
(B) Any indemnity, replanting payment or prevented planting payment will be paid to the person or persons determined to be beneficially entitled to the payment and such person or persons must comply with all policy provisions and pay the premium.
(5) If section 2(g)(2) or (4) applies, a remaining member of the insured person or the beneficiary is required to report to us the death, disappearance, judicial incompetence, or other event that causes dissolution not later than the next cancellation date, except if section 2(g)(3)(ii) applies, notice must be provided by the cancellation date for the next crop year. If notice is not provided timely, the provisions of section 2(g)(2) or (4) will apply retroactive to the date such notice should have been provided and any payments made after the date the policy should have been canceled must be returned.
(h) We may cancel your policy if no premium is earned for 3 consecutive years.
(i) The cancellation and termination dates are contained in the Crop Provisions.
(j) Any person may sign any document relative to crop insurance coverage on behalf of any other person covered by such a policy, provided that the person has a properly executed power of attorney or such other legally sufficient document authorizing such person to sign. You are still responsible for the accuracy of all information provided on your behalf and may be subject to the consequences in section 6(g), and any other applicable consequences, if any information has been misreported.
(a) Unless adjusted or limited in accordance with your policy, the production guarantee or amount of insurance, coverage level, and price at which an indemnity will be determined for each unit will be those used to calculate your summary of coverage for each crop year.
(b) With respect to the insurance choices:
(1) For all acreage of the insured crop in the county, unless one of the conditions in section 3(b)(2) exists, you must select the same:
(i) Plan of insurance (e.g., yield protection, revenue protection, actual production history, amount of insurance, etc.);
(ii) Level of coverage (all catastrophic risk protection or the same level of additional coverage); and
(iii) Percentage of the available price election, or projected price for yield protection. For revenue protection, the percentage of price is specified in section 3(c)(2). If different prices are provided by type or variety, insurance will be based on the price provided for each type or variety and the same price percentage will apply to all types or varieties.
(2) You do not have to select the same plan of insurance, level of coverage or percentage of available price election or projected price if:
(i) The applicable Crop Provisions allow you the option to separately insure individual crop types or varieties. In this case, each individual type or variety insured by you will be subject to separate administrative fees. For example, if two grape varieties in California are insured under the Catastrophic Risk Protection Endorsement and two varieties are insured under an additional coverage policy, a separate administrative fee will be charged for each of the four varieties; or
(ii) You have additional coverage for the crop in the county and the acreage has been designated as “high-risk” by FCIC. In such case, you will be able to exclude coverage for the high-risk land under the additional coverage policy and insure such acreage under a separate Catastrophic Risk Protection Endorsement, provided the Catastrophic Risk Protection Endorsement is obtained from the same insurance provider from which the additional coverage was obtained. If you have revenue protection and exclude high-risk land, the catastrophic risk protection coverage will be yield protection only for the excluded high-risk land.
(iii) You have additional coverage for the crop in the county, and the actuarial documents provide for separate coverage by irrigated and non-irrigated practices for the crop.
(A) You may select one coverage level for all irrigated acreage and one coverage level for all non-irrigated acreage. For example: You may choose a 65 percent coverage level for all irrigated acreage (corn irrigated practice) and an 80 percent coverage level for all non-irrigated acreage (corn non-irrigated practice).
(B) If the Crop Provisions allow the option to separately insure individual crop types or varieties, and the actuarial documents provide for separate coverage, you may select coverage levels by irrigated and non-irrigated practice for each separate type or variety.
(c) With respect to revenue protection, if available for the crop:
(1) You may change to another plan of insurance and change your coverage level or elect the harvest price exclusion by giving written notice to us not later than the sales closing date for the insured crop;
(2) Your projected price and harvest price will be 100 percent of the projected price and harvest price issued by FCIC;
(3) If the harvest price exclusion is:
(i) Not elected, your projected price is used to initially determine the revenue protection guarantee (per acre), and if the harvest price is greater than the projected price, the revenue protection guarantee (per acre) will be recomputed using your harvest price; or
(ii) Elected, your projected price is used to compute your revenue protection guarantee (per acre);
(4) Your projected price is used to calculate your premium, any replanting payment, and any prevented planting payment; and
(5) If the projected price or harvest price cannot be calculated for the current crop year under the provisions contained in the Commodity Exchange Price Provisions:
(i) For the projected price:
(A) Revenue protection will not be provided and you will automatically be covered under the yield protection plan of insurance for the current crop year unless you cancel your coverage by the cancellation date or change your plan of insurance by the sales closing date;
(B) Notice will be provided on RMA’s website by the date specified in the applicable projected price definition contained in the Commodity Exchange Price Provisions;
(C) The projected price will be determined by FCIC and will be released by the date specified in the applicable projected price definition contained in the Commodity Exchange Price Provisions; and
(D) Your coverage will automatically revert to revenue protection for the next crop year that revenue protection is available unless you cancel your coverage by the cancellation date or change your coverage by the sales closing date; or
(ii) For the harvest price:
(A) Revenue protection will continue to be available; and
(B) The harvest price will be determined and announced by FCIC.
(d) With respect to yield protection, if available for the crop:
(1) You may change to another plan of insurance and change your percentage of price and your coverage level by giving written notice to us not later than the sales closing date for the insured crop;
(2) The percentage of the projected price selected by you multiplied by the projected price issued by FCIC is your projected price that is used to compute the value of your production guarantee (per acre) and the value of the production to count; and
(3) Since the projected price may change each year, if you do not select a new percentage of the projected price on or before the sales closing date, we will assign a percentage which bears the same relationship to the percentage that was in effect for the preceding year (e.g., if you selected 100 percent of the projected price for the previous crop year and you do not select a new percentage for the current crop year, we will assign 100 percent for the current crop year).
(e) With respect to all plans of insurance other than revenue protection and yield protection (e.g., APH, dollar amount plans of insurance, etc.):
(1) In addition to the price election or amount of insurance available on the contract change date, we may provide an additional price election or amount of insurance no later than 15 days prior to the sales closing date.
(i) You must select the additional price election or amount of insurance on or before the sales closing date for the insured crop.
(ii) These additional price elections or amounts of insurance will not be less than those available on the contract change date.
(iii) If you elect the additional price election or amount of insurance, any claim settlement and amount of premium will be based on your additional price election or amount of insurance.
(2) You may change to another plan of insurance or change your coverage level, amount of insurance or percentage of the price election, as applicable, for the following crop year by giving written notice to us not later than the sales closing date for the insured crop.
(3) Your amount of insurance will be the amount of insurance issued by FCIC multiplied by the coverage level percentage you elected. Your price election will be the price election issued by FCIC multiplied by the percentage of price you elected.
(4) Since the amount of insurance or price election may change each year, if you do not select a new amount of insurance or percentage of the price election on or before the sales closing date, we will assign an amount of insurance or percentage of the price election which bears the same relationship to the amount of insurance or percentage of the price election that was in effect for the preceding year (e.g., if you selected 100 percent of the price election for the previous crop year and you do not select a new percentage of the price election for the current crop year, we will assign 100 percent of the price election for the current crop year).
(f) You must report all production of the crop (insured and uninsured) to us for the previous crop year by the earlier of the acreage reporting date or 45 days after the cancellation date, unless otherwise stated in the Special Provisions or as specified in section 18:
(1) If you do not provide the required production report, we will assign a yield. The yield assigned by us will not be more than 75 percent of the yield used by us to determine your coverage for the previous crop year. The production report or assigned yield will be used to compute your approved yield for the purpose of determining your coverage for the current crop year.
(2) If you have filed a claim for any crop year, the documents signed by you which state the amount of production used to complete the claim for indemnity will be the production report for that year unless otherwise specified by FCIC.
(3) Production and acreage for the prior crop year must be reported for each proposed optional unit by the production reporting date, unless otherwise specified in the Special Provisions. If you do not provide the information stated above, the optional units will be combined into the basic unit.
(4) Appraisals obtained from only a portion of the acreage in a field that remains unharvested after the remainder of the crop within the field has been destroyed or put to another use will not be used to establish your actual yield unless representative samples are required to be left by you in accordance with the Crop Provisions.
(g) It is your responsibility to accurately report all information that is used to determine your approved yield.
(1) You must certify to the accuracy of this information on your production report.
(2) If you fail to accurately report any information or if you do not provide any required records, you will be subject to the provisions regarding misreporting contained in section 6(g), unless the information is corrected:
(i) On or before the production reporting date;
(ii) Because the incorrect information was determined to be inadvertently reported by you (Simply stating the error was inadvertent is not sufficient to prove the error was inadvertent); or
(iii) Because the incorrect information was the result of our error or the error of someone from USDA.
(3) If you do not have acceptable production records to support the information you certified on your production report you will receive an assigned yield in accordance with section 3(f)(1) and 7 CFR part 400, subpart G, for the applicable units, determined by us, for crop years that do not have such production records in accordance with FCIC procedures. If the conditions of section 34(b)(3) are not met, you will receive an assigned yield for the applicable basic unit.
(4) At any time we discover you have misreported any material information used to determine your approved yield or your approved yield is not correct, the following actions will be taken, as applicable:
(i) We will correct your approved yield, in accordance with FCIC procedure, by assigning a yield or by using the yield we determine to be correct, for the crop year such information is not correct, and all subsequent crop years;
(ii) We will correct the unit structure, if necessary;
(iii) Any overpaid or underpaid indemnity or premium must be repaid; and
(iv) You will be subject to the provisions regarding misreporting contained in section 6(g)(1), unless the incorrect information was the result of our error or the error of someone from USDA.
(h) In addition to any consequences in section 3(g), at any time the circumstances described below are discovered, your approved yield will be adjusted:
(1) By including an assigned yield determined in accordance with section 3(f)(1) and 7 CFR part 400, subpart G, if the actual yield reported in the database is excessive for any crop year, as determined by FCIC under its procedures, and you do not provide verifiable records to support the yield in the database (If there are verifiable records for the yield in your database, the yield is significantly different from the other yields in the county or your other yields for the crop and you cannot prove there is a valid agronomic basis to support the differences in the yields, the yield will be the average of the yields for the crop or the applicable county transitional yield if you have no other yields for the crop);
(2) By reducing it to an amount consistent with the average of the approved yields for other databases for your farming operation with the same crop, type, and practice or the county transitional yield, as applicable, if:
(i) The approved APH yield is greater than 115 percent of the average of the approved yields of all applicable databases for your farming operation that have actual yields in them or it is greater than 115 percent of the county transitional yield if no applicable databases exist for comparison;
(ii) The current year’s insurable acreage (including applicable prevented planting acreage) is greater than 400 percent of the average number of acres in the database or the acres contained in two or more individual years in the database are each less than 10 percent of the current year’s insurable acreage in the unit (including applicable prevented planting acreage); and
(iii) We determine there is no valid agronomic basis to support the approved yield; or
(3) To an amount consistent with the production method actually carried out for the crop year if you use a different production method than was previously used and the production method actually carried out is likely to result in a yield lower than the average of your previous actual yields.
(i) The yield will be adjusted to the lower of the:
(A) Approved APH yield for the APH database;
(B) Average of approved APH yields based on your other APH databases where the production method was carried out; or
(C) Applicable county transitional yield for the production method if other such APH databases do not exist.
(ii) You must notify us of changes in your production method by the acreage reporting date. If you fail to notify us, in addition to the reduction of your approved yield described herein, you will be considered to have misreported information and you will be subject to the consequences in section 6(g). For example, for a non-irrigated APH database, your yield is based upon acreage of the crop that is watered once prior to planting, and the crop is not watered prior to planting for the current crop year. Your approved APH yield will be reduced to an amount consistent with the actual production history of your other non-irrigated APH database where the crop has not been watered prior to planting or limited to the non-irrigated transitional yield for the APH database if other such APH databases do not exist.
(i) Unless you meet the double cropping requirements contained in section 17(f)(4), if you elect to plant a second crop on acreage where the first insured crop was prevented from being planted, you will receive a yield equal to 60 percent of the approved yield for the first insured crop to calculate your average yield for subsequent crop years (Not applicable to crops if the APH is not the basis for the insurance guarantee). If the unit contains both prevented planting and planted acreage of the same crop, the yield for such acreage will be determined by:
(1) Multiplying the number of insured prevented planting acres by 60 percent of the approved yield for the first insured crop;
(2) Adding the totals from section 3(i)(1) to the amount of appraised or harvested production for all of the insured planted acreage; and
(3) Dividing the total in section 3(i)(2) by the total number of acres in the unit.
(j) Hail and fire coverage may be excluded from the covered causes of loss for an insured crop only if you select additional coverage of not less than 65 percent of the approved yield indemnified at the 100 percent price election, or an equivalent coverage as established by FCIC, and you have purchased the same or a higher dollar amount of coverage for hail and fire from us or any other source. If you elected a whole-farm unit, you may exclude hail and fire coverage only if allowed by the Special Provisions.
(k) The applicable premium rate, or formula to calculate the premium rate, and transitional yield will be those contained in the actuarial documents except, in the case of high-risk land, a written agreement may be requested to change such transitional yield or premium rate.
(l) Notwithstanding any other provision, if you qualify as a beginning farmer or rancher, or veteran farmer or rancher, and were previously involved in a farming or ranching operation, including involvement in the decision-making or physical involvement in the production of the crop or livestock on the farm, for any acreage obtained by you, you may receive a yield that is the higher of:
(1) The actual production history of the previous producer of the crop or livestock on the new acreage; or
(2) Your actual production history.
(a) We may change the terms of your coverage under this policy from year to year.
(b) Any changes in policy provisions, amounts of insurance, premium rates, program dates, price elections or the Commodity Exchange Price Provisions, if applicable, can be viewed on RMA’s website not later than the contract change date contained in the Crop Provisions (except as allowed herein or as specified in section 3). We may only revise this information after the contract change date to correct clear errors (e.g., the price for oats was announced at $25.00 per bushel instead of $2.50 per bushel or the final planting date should be May 10 but the final planting date in the Special Provisions states August 10).
(c) After the contract change date, all changes specified in section 4(b) will also be available upon request from your crop insurance agent.
(d) Not later than 30 days prior to the cancellation date for the insured crop you will be notified, in accordance with section 33, a copy of the changes to the Basic Provisions, Crop Provisions, Commodity Exchange Price Provisions, if applicable, and Special Provisions.
(e) Acceptance of the changes will be conclusively presumed in the absence of notice from you to change or cancel your insurance coverage.
(a) An annual acreage report must be submitted to us on our form for each insured crop in the county on or before the acreage reporting date contained in the Special Provisions, except as follows:
(1) If you insure multiple crops with us that have final planting dates on or after August 15 but before December 31, you must submit an acreage report for all such crops on or before the latest applicable acreage reporting date for such crops; and
(2) If you insure multiple crops with us that have final planting dates on or after December 31 but before August 15, you must submit an acreage report for all such crops on or before the latest applicable acreage reporting date for such crops.
(3) Notwithstanding the provisions in sections 6(a) (1) and (2):
(i) If the Special Provisions designate separate planting periods for a crop, you must submit an acreage report for each planting period on or before the acreage reporting date contained in the Special Provisions for the planting period;
(ii) If planting of the insured crop continues after the final planting date or you are prevented from planting during the late planting period, the acreage reporting date will be the later of:
(A) The acreage reporting date contained in the Special Provisions;
(B) The date determined in accordance with sections (a)(1) or (2); or
(C) Five days after the end of the late planting period for the insured crop, if applicable; and
(iii) If you plant the insured crop on or within five days prior to the final planting date and the final planting date is five or fewer days prior to the acreage reporting date, you must submit an acreage report no later than five days after the acreage reporting date (for example, if the final planting date contained in the Special Provisions is July 10, the acreage reporting date contained in the Special Provisions is July 15 and you plant the insured crop on July 9, you have until July 20 to submit an acreage report for the insured crop).
(b) If you do not have a share in an insured crop in the county for the crop year, you must submit an acreage report, on or before the acreage reporting date, so indicating.
(c) Your acreage report must include the following information, if applicable:
(1) The amount of acreage of the crop in the county (insurable and not insurable) in which you have a share and the date the insured crop was planted on the unit as follows:
(i) The last date any timely planted acreage was planted and the number of acres planted by such date; and
(ii) The date of planting and the number of acres planted per day for acreage planted during the late planting period (If you fail to report the number of acres planted on a daily basis, all acreage planted in the late planting period will be presumed to have been planted on the last day planting took place in the late planting period for the purposes of section 16);
(2) Your share at the time coverage begins;
(3) The practice;
(4) The type;
(5) The land identifier for the crop acreage (e.g., legal description, FSA farm number or common land unit number if provided to you by FSA, etc.) as required on our form; and
(6) Acknowledgement of your duty to notify us if you intend to direct market your crop or if acceptable verifiable records are required and will not be available. This acknowledgement must also include a signed marketing certification if required in section 38.
(d) Regarding the ability to revise an acreage report you have submitted to us:
(1) For planted acreage, you cannot revise any information pertaining to the planted acreage after the acreage reporting date without our consent (Consent may only be provided when no cause of loss has occurred; our appraisal has determined that the insured crop will produce at least 90 percent of the yield used to determine your guarantee or the amount of insurance for the unit (including reported and unreported acreage), except when there are unreported units (see section 6(f)); the information on the acreage report is clearly transposed; you provide adequate evidence that we or someone from USDA have committed an error regarding the information on your acreage report; or if expressly permitted by the policy);
(2) For prevented planting acreage:
(i) On or before the acreage reporting date, you can change any information on any initially submitted acreage report, except as provided in section 6(d)(2)(iii) (e.g., you can correct the reported share, add acreage of the insured crop that was prevented from being planted, etc.);
(ii) After the acreage reporting date, you cannot revise any information on the acreage report (e.g., if you have failed to report prevented planting acreage on or before the acreage reporting date, you cannot revise it after the acreage reporting date to include prevented planting acreage) but we will revise information that is clearly transposed or if you provide adequate evidence that we or someone from USDA have committed an error regarding the information on your acreage report; and
(iii) You cannot revise your initially submitted acreage report at any time to change the insured crop, or type, that was reported as prevented from being planted;
(3) You may request an acreage measurement from FSA or a business that provides such measurement service prior to the acreage reporting date, submit documentation of such request and an acreage report with estimated acreage by the acreage reporting date, and if the acreage measurement shows the estimated acreage was incorrect, we will revise your acreage report to reflect the correct acreage:
(i) If an acreage measurement is only requested for a portion of the acreage within a unit, you must separately designate the acreage for which an acreage measurement has been requested;
(ii) If an acreage measurement is not provided to us by the time we receive a notice of loss, we may:
(A) Defer finalization of the claim until the measurement is completed, and:
(1) Make all necessary loss determinations, except the acreage measurement; and
(2) Finalize the claim in accordance with applicable policy provisions after you provide the acreage measurement to us (If you fail to provide the measurement, your claim will not be paid); or
(B) Elect to measure the acreage, and:
(1) Finalize your claim in accordance with applicable policy provisions; and
(2) Estimated acreage under this section will not be accepted from you for any subsequent acreage report; and
(iii) Premium will still be due in accordance with sections 2(e) and 7. If the acreage is not measured as specified in section 6(d)(3)(ii) and the acreage measurement is not provided to us at least 15 days prior to the premium billing date, your premium will be based on the estimated acreage and will be revised, if necessary, when the acreage measurement is provided. If the acreage measurement is not provided by the termination date, you will be precluded from providing any estimated acreage for all subsequent crop years.
(4) If there is an irreconcilable difference between:
(i) The acreage measured by FSA or a measuring service and our on-farm measurement, our on-farm measurement will be used; or
(ii) The acreage measured by a measuring service, other than our on-farm measurement, and FSA, the FSA measurement will be used; and
(5) If the acreage report has been revised in accordance with section 6(d)(1), (2), or (3), the information on the initial acreage report will not be considered misreported for the purposes of section 6(g).
(e) We may elect to determine all premiums and indemnities based on the information you submit on the acreage report or upon the factual circumstances we determine to have existed, subject to the provisions contained in section 6(g).
(f) If you do not submit an acreage report by the acreage reporting date, or if you fail to report all units, we may elect to determine by unit the insurable crop acreage, share, type and practice, or to deny liability on such units. If we deny liability for the unreported units, your share of any production from the unreported units will be allocated, for loss purposes only, as production to count to the reported units in proportion to the liability on each reported unit. However, such production will not be allocated to prevented planting acreage or otherwise affect any prevented planting payment.
(g) You must provide all required reports and you are responsible for the accuracy of all information contained in those reports. You should verify the information on all such reports prior to submitting them to us.
(1) Except as provided in section 6(g)(2), if you submit information on any report that is different than what is determined to be correct and such information results in:
(i) A lower liability than the actual liability determined, the production guarantee or amount of insurance on the unit will be reduced to an amount consistent with the reported information (In the event the insurable acreage is under-reported for any unit, all production or value from insurable acreage in that unit will be considered production or value to count in determining the indemnity); or
(ii) A higher liability than the actual liability determined, the information contained in the acreage report will be revised to be consistent with the correct information.
(2) If your share is misreported and the share is:
(i) Under-reported, any claim will be determined using the share you reported; or
(ii) Over-reported, any claim will be determined using the share we determine to be correct.
(h) If we discover you have incorrectly reported any information on the acreage report for any crop year, you may be required to provide documentation in subsequent crop years substantiating your report of acreage for those crop years, including, but not limited to, an acreage measurement service at your own expense. If the correction of any misreported information would affect an indemnity, prevented planting payment or replanting payment that was paid in a prior crop year, such claim will be adjusted and you will be required to repay any overpaid amounts.
(i) Errors in reporting units may be corrected by us at the time of adjusting a loss to reduce our liability and to conform to applicable unit division guidelines.
(a) The annual premium is earned and payable at the time coverage begins. You will be billed for the premium and administrative fee not earlier than the premium billing date specified in the Special Provisions.
(b) Premium or administrative fees owed by you will be offset from an indemnity or prevented planting payment due you in accordance with section 2(e).
(c) The annual premium amount is determined, as applicable, by either:
(1) Multiplying the production guarantee per acre times your price election or your projected price, as applicable, times the premium rate, times the insured acreage, times your share at the time coverage begins, and times any premium adjustment percentages that may apply; or
(2) Multiplying your amount of insurance per acre times the premium rate, times the insured acreage, times your share at the time coverage begins, and times any premium adjustment percentages that may apply.
(d) The information needed to determine the premium rate and any premium adjustment percentages that may apply are contained in the actuarial documents or an approved written agreement.
(e) In addition to the premium charged:
(1) You, unless otherwise authorized in 7 CFR part 400, must pay an administrative fee each crop year of $30 per crop per county for all levels of coverage in excess of catastrophic risk protection.
(2) The administrative fee must be paid no later than the time that premium is due.
(3) Payment of an administrative fee will not be required if you file a bona fide zero acreage report on or before the acreage reporting date for the crop. If you falsely file a zero acreage report you may be subject to criminal and administrative sanctions.
(4) The administrative fee will be waived if you request it and:
(i) You qualify as a beginning farmer or rancher, or veteran farmer or rancher;
(ii) You qualify as a limited resource farmer; or
(iii) You were insured prior to the 2005 crop year or for the 2005 crop year and your administrative fee was waived for one or more of those crop years because you qualified as a limited resource farmer under a policy definition previously in effect, and you remain qualified as a limited resource farmer under the definition that was in effect at the time the administrative fee was waived.
(5) Failure to pay the administrative fees when due may make you ineligible for certain other USDA benefits.
(f) If the amount of premium (gross premium less premium subsidy paid on your behalf by FCIC) and administrative fee you are required to pay for any acreage exceeds the liability for the acreage, coverage for those acres will not be provided (no premium or administrative fee will be due and no indemnity will be paid for such acreage).
(g) If you qualify as a beginning farmer or rancher, or veteran farmer or rancher, your premium subsidy will be 10 percentage points greater than the premium subsidy that you would otherwise receive, unless otherwise specified in the Special Provisions.
(h) You will be ineligible for any premium subsidy paid on your behalf by FCIC for any policy issued by us if:
(1) USDA determines you have committed a violation of the highly erodible land conservation or wetland conservation provisions of 7 CFR part 12 as amended by the Agricultural Act of 2014; or
(2) You have not filed form AD-1026 with FSA for the reinsurance year by the premium billing date.
(i) Notwithstanding section 7(h)(2), you may be eligible for premium subsidy without having a timely filed form AD-1026:
(A) For the initial reinsurance year if you certify by the premium billing date for your policy that you meet the qualifications as outlined in FCIC procedures for producers who are new to farming, new to crop insurance, a new entity, or have not previously been required to file form AD-1026; or
(B) If FSA approves relief for failure to timely file due to circumstances beyond your control or failure to timely provide adequate information to complete form AD-1026 in accordance with the provisions contained in 7 CFR part 12.
(ii) To be eligible for premium subsidy paid on your behalf by FCIC, it is your responsibility to assure you meet all the requirements for:
(A) Compliance with the conservation provisions specified in section 7(h)(1) of this section; and
(B) Filing form AD-1026 to be properly identified as in compliance with the conservation provisions specified in section 7(h)(1) of this section.
(a) The insured crop will be that shown on your accepted application and as specified in the Crop Provisions or Special Provisions and must be grown on insurable acreage.
(b) A crop which will NOT be insured will include, but will not be limited to, any crop:
(1) That is not grown on planted acreage (except for the purposes of prevented planting coverage), or that is a type, class or variety or where the conditions under which the crop is planted are not generally recognized for the area (For example, where agricultural experts determine that planting a non-irrigated corn crop after a failed small grain crop on the same acreage in the same crop year is not appropriate for the area);
(2) For which the information necessary for insurance (price election, amount of insurance, projected price and harvest price, as applicable, premium rate, etc.) is not included in the actuarial documents, unless such information is provided by a written agreement in accordance with section 18;
(3) That is a volunteer crop;
(4) Planted following the same crop on the same acreage and the first planting of the crop has been harvested in the same crop year unless specifically permitted by the Crop Provisions or the Special Provisions (For example, the second planting of grain sorghum would not be insurable if grain sorghum had already been planted and harvested on the same acreage during the crop year);
(5) That is planted for the development or production of hybrid seed or for experimental purposes, unless permitted by the Crop Provisions or by written agreement to insure such crop; or
(6) That is used solely for wildlife protection or management. If the lease states that specific acreage must remain unharvested, only that acreage is uninsurable. If the lease specifies that a percentage of the crop must be left unharvested, your share will be reduced by such percentage.
(c) Although certain policy documents may state that a crop type, class, variety or practice is not insurable, it does not mean all other crop types, classes, varieties or practices are insurable. To be insurable the crop type, class, variety or practice must meet all the conditions in this section.
(a) All acreage planted to the insured crop in the county in which you have a share:
(1) Except as provided in section 9(a)(2), is insurable if the acreage has been planted and harvested or insured (including insured acreage that was prevented from being planted) in any one of the three previous crop years. Acreage that has not been planted and harvested (grazing is not considered harvested for the purposes of section 9(a)(1)) or insured in at least one of the three previous crop years may still be insurable if:
(i) Such acreage was not planted:
(A) In at least two of the three previous crop years to comply with any other USDA program;
(B) Due to the crop rotation, the acreage would not have been planted in the previous three years (e.g., a crop rotation of corn, soybeans, and alfalfa; and the alfalfa remained for four years before the acreage was planted to corn again); or
(C) Because a perennial tree, vine, or bush crop was on the acreage in at least two of the previous three crop years;
(ii) Such acreage constitutes five percent or less of the insured planted acreage in the unit;
(iii) Such acreage was not planted or harvested because it was pasture or rangeland, the crop to be insured is also pasture or rangeland, and the Crop Provisions, Special Provisions, or a written agreement specifically allow insurance for such acreage; or
(iv) The Crop Provisions, Special Provisions, or a written agreement specifically allow insurance for such acreage; or
(2) Is not insurable if:
(i) The only crop that has been planted and harvested on the acreage in the three previous crop years is a cover, hay (except wheat harvested for hay) or forage crop (except insurable silage). However, such acreage may be insurable only if:
(A) The crop to be insured is a hay or forage crop and the Crop Provisions, Special Provisions, or a written agreement specifically allow insurance for such acreage; or
(B) The hay or forage crop was part of a crop rotation;
(ii) The acreage has been strip-mined. However, such acreage may be insurable only if:
(A) An agricultural commodity, other than a cover, hay (except wheat harvested for hay), or forage crop (except insurable silage) has been harvested from the acreage for at least five crop years after the strip-mined land was reclaimed; or
(B) A written agreement specifically allows insurance for such acreage;
(iii) The actuarial documents do not provide the information necessary to determine the premium rate, unless insurance is allowed by a written agreement;
(iv) The insured crop is damaged and it is practical to replant the insured crop, but the insured crop is not replanted;
(v) The acreage is interplanted, unless insurance is allowed by the Crop Provisions;
(vi) The acreage is otherwise restricted by the Crop Provisions or Special Provisions;
(vii) The acreage is planted in any manner other than as specified in the policy provisions for the crop unless a written agreement specifically allows insurance for such planting;
(viii) The acreage is of a second crop, if you elect not to insure such acreage when an indemnity for a first insured crop may be subject to reduction in accordance with the provisions of section 15 and you intend to collect an indemnity payment that is equal to 100 percent of the insurable loss for the first insured crop acreage. This election must be made on a first insured crop unit basis (e.g., if the first insured crop unit contains 40 planted acres that may be subject to an indemnity reduction, then no second crop can be insured on any of the 40 acres). In this case:
(A) If the first insured crop is insured under this policy, you must provide written notice to us of your election not to insure acreage of a second crop at the time the first insured crop acreage is released by us (if no acreage in the first insured crop unit is released, this election must be made by the earlier of the acreage reporting date for the second crop or when you sign the claim for indemnity for the first insured crop) or, if the first insured crop is insured under Area Risk Protection Insurance (7 CFR part 407), this election must be made before the second crop insured under this policy is planted, and if you fail to provide such notice, the second crop acreage will be insured in accordance with the applicable policy provisions and you must repay any overpaid indemnity for the first insured crop;
(B) In the event a second crop is planted and insured with a different insurance provider, or planted and insured by a different person, you must provide written notice to each insurance provider that a second crop was planted on acreage on which you had a first insured crop; and
(C) You must report the crop acreage that will not be insured on the applicable acreage report; or
(ix) The acreage is of a crop planted following a second crop or following an insured crop that is prevented from being planted after a first insured crop, unless it is a practice that is generally recognized by agricultural experts or organic agricultural experts for the area to plant three or more crops for harvest on the same acreage in the same crop year, and additional coverage insurance provided under the authority of the Act is offered for the third or subsequent crop in the same crop year. Insurance will only be provided for a third or subsequent crop as follows:
(A) You must provide records acceptable to us that show:
(1) You have produced and harvested the insured crop following two other crops harvested on the same acreage in the same crop year in at least two of the last four years in which you produced the insured crop; or
(2) The applicable acreage has had three or more crops produced and harvested on it in the same crop year in at least two of the last four years in which the insured crop was grown on the acreage; and
(B) The amount of insurable acreage will not exceed 100 percent of the greatest number of acres for which you provide the records required in section 9(a)(2)(ix)(A).
(b) If insurance is provided for an irrigated practice, you must report as irrigated only that acreage for which you have adequate facilities and adequate water, or the reasonable expectation of receiving adequate water at the time coverage begins, to carry out a good irrigation practice. If you knew or had reason to know that your water may be reduced before coverage begins, no reasonable expectation exists.
(c) Notwithstanding the provisions in section 8(b)(2), if acreage is irrigated and a premium rate is not provided for an irrigated practice, you may either report and insure the irrigated acreage as “non-irrigated,” or report the irrigated acreage as not insured (If you elect to insure such acreage under a non-irrigated practice, your irrigated yield will only be used to determine your approved yield if you continue to use a good irrigation practice. If you do not use a good irrigation practice, you will receive a yield determined in accordance with section 3(h)(3)).
(d) We may restrict the amount of acreage that we will insure to the amount allowed under any acreage limitation program established by the United States Department of Agriculture if we notify you of that restriction prior to the sales closing date.
(e) Except as provided in section 9(f), and in accordance with section 9(g), in the states of Iowa, Minnesota, Montana, Nebraska, North Dakota, or South Dakota, native sod acreage may be insured if the requirements of section 9(a) have been met but will:
(1) Notwithstanding the provisions in section 3 regarding your production guarantee, receive a production guarantee (per acre) that is based on 65 percent of the transitional yield for the county; and
(2) For additional coverage policies, receive a premium subsidy that is 50 percentage points less than would otherwise be provided on acreage not qualifying as native sod. If the premium subsidy applicable to these acres is less than 50 percent before the reduction, you will receive no premium subsidy.
(f) Section 9(e) is not applicable to cumulative native sod acreage that is five acres or less in the county.
(g) Section 9(e) is applicable during the first 4 crop years of planting on native sod acreage that has been tilled beginning on February 8, 2014, and ending on December 20, 2018. Section 9(e) is applicable during 4 cumulative crop years of insurance within the first 10 crop years after initial tillage on native sod acreage tilled after December 20, 2018.
(a) Insurance will attach:
(1) Only if the person completing the application has a share in the insured crop; and
(2) Only to that person’s share, except that insurance may attach to another person’s share of the insured crop if the other person has a share of the crop and:
(i) The application clearly states the insurance is requested for a person other than an individual (e.g., a partnership or a joint venture); or
(ii) The application clearly states you as a landlord will insure your tenant’s share, or you as a tenant will insure your landlord’s share. If you as a landlord will insure your tenant’s share, or you as a tenant will insure your landlord’s share, you must provide evidence of the other party’s approval (lease, power of attorney, etc.) and such evidence will be retained by us:
(A) You also must clearly set forth the percentage shares of each person on the acreage report; and
(B) For each landlord or tenant, you must report the landlord’s or tenant’s social security number, employer identification number, or other identification number we assigned for the purposes of this policy, as applicable.
(b) With respect to your share:
(1) We will consider to be included in your share under your policy, any acreage or interest reported by or for:
(i) Your spouse, unless such spouse can prove he/she has a separate farming operation, which includes, but is not limited to, separate land (transfers of acreage from one spouse to another is not considered separate land), separate capital, separate inputs, separate accounting, and separate maintenance of proceeds; or
(ii) Your child who resides in your household or any other member of your household, unless such child or other member of the household can demonstrate such person has a separate share in the crop (Children who do not reside in your household are not included in your share); and
(2) If it is determined that the spouse, child or other member of the household has a separate policy but does not have a separate farming operation or share of the crop, as applicable:
(i) The policy for one spouse or child or other member of the household will be void and the policy remaining in effect will be determined in accordance with section 22(a)(1) and (2);
(ii) The acreage or share reported under the policy that is voided will be included under the remaining policy; and
(iii) No premium will be due and no indemnity will be paid for the voided policy.
(c) Acreage rented for a percentage of the crop, or a lease containing provisions for both a minimum payment (such as a specified amount of cash, bushels, pounds, etc.,) and a crop share will be considered a crop share lease.
(d) Acreage rented for cash, or a lease containing provisions for either a minimum payment or a crop share (such as a 50/50 share or $100.00 per acre, whichever is greater) will be considered a cash lease.
(a) Except for prevented planting coverage (see section 17), coverage begins on each unit or part of a unit at the later of:
(1) The date we accept your application (For the purposes of this paragraph, the date of acceptance is the date that you submit a properly executed application in accordance with section 2);
(2) The date the insured crop is planted; or
(3) The calendar date contained in the Crop Provisions for the beginning of the insurance period.
(b) Coverage ends on each unit or part of a unit at the earliest of:
(1) Total destruction of the insured crop;
(2) Harvest of the insured crop;
(3) Final adjustment of a loss on a unit;
(4) The calendar date contained in the Crop Provisions or Special Provisions for the end of the insurance period;
(5) Abandonment of the insured crop; or
(6) As otherwise specified in the Crop Provisions.
(c) Except as provided in the Crop Provisions or applicable endorsement, in addition to the requirements of section 11(b), coverage ends on any acreage within a unit once any event specified in section 11(b) occurs on that acreage. Coverage only remains in effect on acreage that has not been affected by an event specified in section 11(b).
Insurance is provided only to protect against unavoidable, naturally occurring events. A list of the covered naturally occurring events is contained in the applicable Crop Provisions. All other causes of loss, including but not limited to the following, are not covered:
(a) Any act by any person that affects the yield, quality or price of the insured crop (e.g., chemical drift, fire, terrorism, etc.);
(b) Failure to follow recognized good farming practices for the insured crop;
(c) Water that is contained by or within structures that are designed to contain a specific amount of water, such as dams, locks or reservoir projects, etc., on any acreage when such water stays within the designed limits (For example, a dam is designed to contain water to an elevation of 1,200 feet but you plant a crop on acreage at an elevation of 1,100 feet. A storm causes the water behind the dam to rise to an elevation of 1,200 feet. Under such circumstances, the resulting damage would not be caused by an insurable cause of loss. However, if you planted on acreage that was above 1,200 feet elevation, any damage caused by water that exceeded that elevation would be caused by an insurable cause of loss);
(d) Failure or breakdown of the irrigation equipment or facilities, or the inability to prepare the land for irrigation using your established irrigation method (e.g., furrow irrigation), unless the failure, breakdown or inability is due to a cause of loss specified in the Crop Provisions.
(1) You must make all reasonable efforts to restore the equipment or facilities to proper working order within a reasonable amount of time unless we determine it is not practical to do so.
(2) Cost will not be considered when determining whether it is practical to restore the equipment or facilities;
(e) Failure to carry out a good irrigation practice for the insured crop, if applicable; or
(f) Any cause of loss that results in damage that is not evident or would not have been evident during the insurance period, including, but not limited to, damage that only becomes evident after the end of the insurance period unless expressly authorized in the Crop Provisions. Even though we may not inspect the damaged crop until after the end of the insurance period, damage due to insured causes that would have been evident during the insurance period will be covered.
(a) If allowed by the Crop Provisions, a replanting payment may be made on an insured crop replanted after we have given consent and the acreage replanted is at least the lesser of 20 acres or 20 percent of the insured planted acreage for the unit (as determined on the final planting date or within the late planting period if a late planting period is applicable). If the crops to be replanted are in a whole-farm unit, the 20 acres or 20 percent requirement is to be applied separately to each crop to be replanted in the whole-farm unit.
(b) No replanting payment will be made on acreage:
(1) On which our appraisal establishes that production will exceed the level set by the Crop Provisions;
(2) Initially planted prior to the earliest planting date established by the Special Provisions; or
(3) On which one replanting payment has already been allowed for the crop year.
(c) The replanting payment per acre will be:
(1) The lesser of your actual cost for replanting or the amount specified in the Crop Provisions or Special Provisions; or
(2) If the Crop Provisions or Special Provisions specify that your actual cost will not be used to determine your replanting payment, the amount determined in accordance with the Crop Provisions or Special Provisions.
(d) No replanting payment will be paid if we determine it is not practical to replant.
Your Duties –
(a) In the case of damage or loss of production or revenue to any insured crop, you must protect the crop from further damage by providing sufficient care.
(b) You must provide a notice of loss in accordance with this section. Notice provisions:
(1) For a planted crop, when there is damage or loss of production, you must give us notice, by unit, within 72 hours of your initial discovery of damage or loss of production (but not later than 15 days after the end of the insurance period, even if you have not harvested the crop).
(2) For crops for which revenue protection is elected, if there is no damage or loss of production, you must give us notice not later than 45 days after the latest date the harvest price is released for any crop in the unit where there is a revenue loss.
(3) In the event you are prevented from planting an insured crop that has prevented planting coverage, you must notify us within 72 hours after:
(i) The final planting date, if you do not intend to plant the insured crop during the late planting period or if a late planting period is not applicable; or
(ii) You determine you will not be able to plant the insured crop within any applicable late planting period.
(4) All notices required in this section that must be received by us within 72 hours may be made by telephone or in person to your crop insurance agent but must be confirmed in writing within 15 days.
(5) If you fail to submit a notice of loss in accordance with these notice provisions, any loss or prevented planting claim will be considered solely due to an uninsured cause of loss for the acreage for which such failure occurred, unless we determine that we have the ability to accurately adjust the loss. If we determine that we do not have the ability to accurately adjust the loss:
(i) For any prevented planting claim, no prevented planting coverage will be provided and no premium will be owed or prevented planting payment will be paid; or
(ii) For any claim for indemnity, no indemnity will be paid but you will still be required to pay all premiums owed.
(6) You must give us notice in accordance with section 36(a)(3) to replace post-quality actual yields for previous crop years.
(c) Representative samples:
(1) If representative samples are required by the Crop Provisions, you must leave representative samples of the unharvested crop intact:
(i) If you report damage less than 15 days before the time you will begin harvest or during harvest of the damaged unit; or
(ii) At any time when required by us.
(2) The samples must be left intact until we inspect them or until 15 days after completion of harvest on the remainder of the unit, whichever is earlier.
(3) Unless otherwise specified in the Crop Provisions or Special Provisions, the samples of the crop in each field in the unit must be 10 feet wide and extend the entire length of the rows, if the crop is planted in rows, or if the crop is not planted in rows, the longest dimension of the field.
(4) The period to retain representative samples may be extended if it is necessary to accurately determine the loss. You will be notified in writing of any such extension.
(d) Consent:
(1) You must obtain consent from us before, and notify us after you:
(i) Destroy any of the insured crop that is not harvested;
(ii) Put the insured crop to an alternative use;
(iii) Put the acreage to another use; or
(iv) Abandon any portion of the insured crop.
(2) We will not give consent for any of the actions in section 14(d)(1)(i) through (iv) if it is practical to replant the crop or until we have made an appraisal of the potential production of the crop.
(3) Failure to obtain our consent will result in the assignment of an amount of production or value to count in accordance with the Settlement of Claim provisions of the applicable Crop Provisions.
(e) Claims:
(1) Except as otherwise provided in your policy, you must submit a claim declaring the amount of your loss by the dates shown in section 14(e)(3), unless you:
(i) Request an extension in writing by such date and we agree to such request (Extensions will only be granted if the amount of the loss cannot be determined within such time period because the information needed to determine the amount of the loss is not available); or
(ii) Have harvested farm-stored production and elect, in writing, to delay measurement of your farm-stored production and settlement of any potential associated claim for indemnity as allowed by the Special Provisions (Extensions will be granted for this purpose up to 180 days after the end of the insurance period).
(A) For policies that require APH, if such extension continues beyond the date you are required to submit your production report, you will be assigned the previous year’s approved yield as a temporary yield in accordance with applicable procedures.
(B) Any extension does not extend any date specified in the policy by which premiums, administrative fees, or other debts owed must be paid.
(C) Damage that occurs after the end of the insurance period (for example, while the harvested crop production is in storage) is not covered; and
(2) Failure to timely submit a claim or provide the required information necessary to determine the amount of the claim will result in no indemnity, prevented planting payment or replanting payment:
(i) Even though no indemnity or replanting payment is due, you will still be required to pay the premium due under the policy for the unit; or
(ii) Failure to timely submit a prevented planting claim will result in no prevented planting coverage and no premium will be due.
(3) You must submit a claim not later than:
(i) For policies other than revenue protection, 60 days after the date the insurance period ends for all acreage in the unit (When there is acreage in the unit where the insurance period ended on different dates, it is the last date the insurance period ends on the unit. For example, if a unit has corn acreage that was put to another use on July 15 and corn acreage where harvest was completed on September 30, the claim must be submitted not later than 60 days after September 30); or
(ii) For revenue protection, the later of:
(A) 60 days after the last date the harvest price is released for any crop in the unit; or
(B) The date determined in accordance with section 14(e)(3)(i).
(4) To receive any indemnity (or receive the rest of an indemnity in the case of acreage that is planted to a second crop), prevented planting payment or replanting payment, you must, if applicable:
(i) Provide:
(A) A complete harvesting, production, and marketing record of each insured crop by unit including separate records showing the same information for production from any acreage not insured.
(B) Records as indicated below if you insure any acreage that may be subject to an indemnity reduction as specified in section 15(e)(2):
(1) Separate records of production from such acreage for all insured crops planted on the acreage (e.g., if you have an insurable loss on 10 acres of wheat and subsequently plant cotton on the same 10 acres, you must provide records of the wheat and cotton production on the 10 acres separate from any other wheat and cotton production that may be planted in the same unit). If you fail to provide separate records for such acreage, we will allocate the production of each crop to the acreage in proportion to our liability for the acreage; or
(2) If there is no loss on the unit that includes acreage of the second crop, no separate records need to be submitted for the second crop and you can receive the rest of the indemnity for the first insured crop.
(C) Any other information we may require to settle the claim.
(ii) Cooperate with us in the investigation or settlement of the claim, and, as often as we reasonably require:
(A) Show us the damaged crop;
(B) Allow us to remove samples of the insured crop; and
(C) Provide us with records and documents we request and permit us to make copies.
(iii) Establish:
(A) The total production or value received for the insured crop on the unit;
(B) That any loss occurred during the insurance period;
(C) That the loss was caused by one or more of the insured causes specified in the Crop Provisions; and
(D) That you have complied with all provisions of this policy.
(iv) Upon our request, or that of any USDA employee authorized to conduct investigations of the crop insurance program, submit to an examination under oath.
(5) Failure to comply with any requirement contained in section 14(e)(4) will result in denial of the claim and any premium will still be owed, unless the claim denied is for prevented planting.
Our Duties –
(f) If you have complied with all the policy provisions, we will pay your loss within 30 days after the later of:
(1) We reach agreement with you;
(2) Completion of arbitration, reconsideration of determinations regarding good farming practices or any other appeal that results in an award in your favor, unless we exercise our right to appeal such decision;
(3) Completion of any investigation by USDA, if applicable, of your current or any past claim for indemnity if no evidence of wrongdoing has been found (If any evidence of wrongdoing has been discovered, the amount of any indemnity, prevented planting or replant overpayment as a result of such wrongdoing may be offset from any indemnity or prevented planting payment owed to you); or
(4) The entry of a final judgment by a court of competent jurisdiction.
(g) In the event we are unable to pay your loss within 30 days, we will give you notice of our intentions within the 30-day period.
(h) We may defer the adjustment of a loss until the amount of loss can be accurately determined. We will not pay for additional damage resulting from your failure to provide sufficient care for the crop during the deferral period.
(i) We recognize and apply the loss adjustment procedures established or approved by the Federal Crop Insurance Corporation.
(j) For revenue protection, we may make preliminary indemnity payments for crop production losses prior to the release of the harvest price if you have not elected the harvest price exclusion.
(1) First, we may pay an initial indemnity based upon your projected price, in accordance with the applicable Crop Provisions provided that your production to count and share have been established; and
(2) Second, after the harvest price is released, and if it is not equal to the projected price, we will recalculate the indemnity payment and pay any additional indemnity that may be due.
(a) The total production to be counted for a unit will include all production determined in accordance with the policy.
(b) Appraised production will be used to calculate your claim if you are not going to harvest your acreage. Such appraisals may be conducted after the end of the insurance period. If you harvest the crop after the crop has been appraised:
(1) You must provide us with the amount of harvested production (If you fail to provide acceptable verifiable records or acceptable farm management records of harvested production, no indemnity will be paid and you will be required to return any previously paid indemnity for the unit that was based on an appraised amount of production); and
(2) If the harvested production exceeds the appraised production, claims will be adjusted using the harvested production, and you will be required to repay any overpaid indemnity; or
(3) If the harvested production is less than the appraised production, and:
(i) You harvest after the end of the insurance period, your appraised production will be used to adjust the loss unless you can prove that no additional causes of loss or deterioration of the crop occurred after the end of the insurance period; or
(ii) You harvest before the end of the insurance period, your harvested production will be used to adjust the loss, unless:
(A) The applicable crop provisions require an appraisal prior to harvest and you are unable to prove that additional insured causes of loss occurred after the appraisal or deterioration of the crop can be attributed to insurable causes after the appraisal was completed; then your appraised production will be used to adjust the loss; or
(B) You intend to direct market your crop or your production records will not be from a disinterested third party and we determine an appraisal prior to harvest was necessary and you are unable to prove that additional insured causes of loss occurred after the appraisal or deterioration of the crop can be attributed to insurable causes after the appraisal was completed; then your appraised production will be used to adjust the loss.
(c) If you elect to exclude hail and fire as insured causes of loss and the insured crop is damaged by hail or fire, appraisals will be made as described in our form used to exclude hail and fire.
(d) The amount of an indemnity that may be determined under the applicable provisions of your policy may be reduced by an amount, determined in accordance with the Crop Provisions or Special Provisions, to reflect out-of-pocket expenses that were not incurred by you as a result of not planting, caring for, or harvesting the crop. Indemnities paid for acreage prevented from being planted will be based on a reduced guarantee as provided for in the policy and will not be further reduced to reflect expenses not incurred.
(e) With respect to acreage where you have suffered an insurable loss to planted acreage of your first insured crop in the crop year, except in the case of double cropping described in section 15(h):
(1) You may elect to not plant or to plant and not insure a second crop on the same acreage for harvest in the same crop year and collect an indemnity payment that is equal to 100 percent of the insurable loss for the first insured crop; or
(2) You may elect to plant and insure a second crop on the same acreage for harvest in the same crop year (you will pay the full premium and, if there is an insurable loss to the second crop, receive the full amount of indemnity that may be due for the second crop, regardless of whether there is a subsequent crop planted on the same acreage) and:
(i) Collect an indemnity payment that is 35 percent of the insurable loss for the first insured crop;
(ii) Be responsible for premium that is 35 percent of the premium that you would otherwise owe for the first insured crop; and
(iii) If the second crop does not suffer an insurable loss:
(A) Collect an indemnity payment for the other 65 percent of insurable loss that was not previously paid under section 15(e)(2)(i); and
(B) Be responsible for the remainder of the premium for the first insured crop that you did not pay under section 15(e)(2)(ii).
(f) With respect to acreage where you were prevented from planting the first insured crop in the crop year, except in the case of double cropping described in section 15(h):
(1) If a second crop is not planted on the same acreage for harvest in the same crop year, you may collect a prevented planting payment that is equal to 100 percent of the prevented planting payment for the acreage for the first insured crop; or
(2) If a second crop is planted on the same acreage for harvest in the same crop year (you will pay the full premium and, if there is an insurable loss to the second crop, receive the full amount of indemnity that may be due for the second crop, regardless of whether there is a subsequent crop planted on the same acreage) and:
(i) Provided the second crop is not planted on or before the final planting date or during the late planting period (as applicable) for the first insured crop, you may collect a prevented planting payment that is 35 percent of the prevented planting payment for the first insured crop; and
(ii) Be responsible for premium that is 35 percent of the premium that you would otherwise owe for the first insured crop.
(g) The reduction in the amount of indemnity or prevented planting payment and premium specified in sections 15(e) and 15(f), as applicable, will apply:
(1) Notwithstanding the priority contained in the Agreement to Insure section, which states that the Crop Provisions have priority over the Basic Provisions when a conflict exists, to any premium owed or indemnity or prevented planting payment made in accordance with the Crop Provisions, and any applicable endorsement.
(2) Even if another person plants the second crop on any acreage where the first insured crop was planted or was prevented from being planted, as applicable.
(3) To a prevented planting payment if a cover crop that is planted after the late planting period (or after the final planting date if a late planting period is not applicable) is harvested for grain or seed by you or another person, at any time.
(h) You may receive a full indemnity, or a full prevented planting payment for a first insured crop when a second crop is planted on the same acreage in the same crop year, if each of the following conditions are met, regardless of whether or not the second crop is insured or sustains an insurable loss:
(1) Planting two or more crops for harvest in the same crop year in the area is generally recognized by agricultural experts or organic agricultural experts;
(2) The second or more crops are customarily planted after the first insured crop for harvest on the same acreage in the same crop year in the area;
(3) Additional coverage insurance offered under the authority of the Act is available in the county on the two or more crops that are double cropped;
(4) In the case of prevented planting, the second crop is not planted on or prior to the final planting date or, if applicable, prior to the end of the late planting period for the first insured crop;
(5) You provide records, acceptable to us, of acreage and production specific to the double cropped acreage proving that:
(i) You have double cropped acreage in at least 2 of the last 4 crop years in which the first insured crop was grown; or
(ii) The applicable acreage was double cropped (by one or more other producers, and the producer(s) will allow you to use their records) for at least two of the last four crop years in which the first insured crop was grown on it; and
(6) If you do not have records of acreage and production specific to the double cropped acreage, as required in section 15(h)(5), but instead have records that combine production from acreage you double cropped with records of production from acreage you did not double crop, we will allocate the first and second crop production to the specific acreage in proportion to the liability for the acreage that was and was not double cropped.
(7) With respect to double cropped acreage for which one of the crops you have double cropped is insured under a plan of insurance not covered under these Basic Provisions, each insured crop must follow its own Basic Provisions, Crop Provisions, and Special Provisions to determine if the double cropping requirements have been met. If the double cropping requirements in the applicable Basic Provisions, Crop Provisions, or Special Provisions have not been met for each insured crop, section 15(e) of these Basic Provisions applies.
(i) If you provided acceptable records in accordance with section 15(h), your double cropping history is limited to the highest number of acres double cropped within the applicable 4-year period as determined in section 15(h)(5):
(1) If the records you provided are from acreage you double cropped in at least two of the last four crop years, you may apply your history of double cropping to any acreage of the insured crop in the county (for example, you have 100 cropland acres in the county and have double cropped wheat and soybeans on all 100 acres in the county and you acquire an additional 100 acres in the county, you can apply your history of 100 double cropped acres to any of the 200 acres in the county); or
(2) If the records you provided are from acreage that one or more other producers double cropped in at least two of the last four crop years, you may only use the history of double cropping for the same physical acres from which double cropping records were provided (e.g., if a neighbor has double cropped 100 acres of wheat and soybeans in the county and you acquire your neighbor’s 100 double cropped acres and an additional 100 acres in the county, you can only apply your neighbor’s history of double cropped acreage to the same 100 acres that your neighbor double cropped).
(3) If you acquired additional land for the current crop year and the following calculation results in a greater number of double cropping acres than determined in the introductory paragraph of section 15(i), you may apply the percentage of acres that you have previously double cropped to the total cropland acres that you are farming this year (if greater):
(i) Determine the number of acres of the first insured crop that were double cropped in each of the years for which double cropping records are provided (for example, records are provided showing: 100 acres of wheat planted in 2019 and 50 of those acres were double cropped with soybeans; and 100 acres of wheat planted in 2020 and 70 of those acres were double cropped with soybeans);
(ii) Divide each result of section 15(i)(3)(i) by the number of acres of the first insured crop that were planted in each respective year (in the example in section 15(i)(3)(i), 50 divided by 100 equals 50 percent of the first insured crop acres that were double cropped in 2019 and 70 divided by 100 equals 70 percent of the first insured crop acres that were double cropped in 2020);
(iii) Add the results of section 15(i)(3)(ii) and divide by the number of years the first insured crop was double cropped (in the example in section 15(i)(3)(i), 50 plus 70 equals 120 divided by 2 equals 60 percent); and
(iv) Multiply the result of section 15(i)(3)(iii) by the number of insured acres of the first insured crop (in the example in section 15(i)(3)(i), 60 percent multiplied by the number of wheat acres insured in 2021);
(j) If any Federal or State agency requires destruction of any insured crop or crop production, as applicable, because it contains levels of a substance, or has a condition, that is injurious to human or animal health in excess of the maximum amounts allowed by the Food and Drug Administration, other public health organizations of the United States or an agency of the applicable State, you must destroy the insured crop or crop production, as applicable, and certify that such insured crop or crop production has been destroyed prior to receiving an indemnity payment. Failure to destroy the insured crop or crop production, as applicable, will result in you having to repay any indemnity paid and you may be subject to administrative sanctions in accordance with section 515(h) of the Act and 7 CFR part 400, subpart R, and any applicable civil or criminal sanctions.
Unless limited by the Crop Provisions, insurance will be provided for acreage planted to the insured crop after the final planting date in accordance with the following:
(a) The production guarantee or amount of insurance for each acre planted to the insured crop during the late planting period will be reduced by 1 percent per day for each day planted after the final planting date.
(b) Acreage planted after the late planting period (or after the final planting date for crops that do not have a late planting period) may be insured as follows:
(1) The production guarantee or amount of insurance for each acre planted as specified in this subsection will be determined by multiplying the production guarantee or amount of insurance that is provided for acreage of the insured crop that is timely planted by the prevented planting coverage level percentage you elected, or that is contained in the Crop Provisions if you did not elect a prevented planting coverage level percentage;
(2) Planting on such acreage must have been prevented by the final planting date (or during the late planting period, if applicable) by an insurable cause occurring within the insurance period for prevented planting coverage; and
(3) All production from insured acreage as specified in this section will be included as production to count for the unit.
(c) The premium amount for insurable acreage specified in this section will be the same as that for timely planted acreage. If the amount of premium you are required to pay (gross premium less our subsidy) for such acreage exceeds the liability, coverage for those acres will not be provided (no premium will be due and no indemnity will be paid).
(d) Any acreage on which an insured cause of loss is a material factor in preventing completion of planting, as specified in the definition of “planted acreage” (e.g., seed is broadcast on the soil surface but cannot be incorporated) will be considered as acreage planted after the final planting date and the production guarantee will be calculated in accordance with section 16(b)(1).
(a) Unless limited by the policy provisions, a prevented planting payment may be made to you for eligible acreage if:
(1) You are prevented from planting the insured crop on insurable acreage by an insured cause of loss that occurs:
(i) On or after the sales closing date contained in the Special Provisions for the insured crop in the county for the crop year the application for insurance is accepted; or
(ii) For any subsequent crop year, on or after the sales closing date for the previous crop year for the insured crop in the county, provided insurance has been in force continuously since that date. Cancellation for the purpose of transferring the policy to a different insurance provider for the subsequent crop year will not be considered a break in continuity for the purpose of the preceding sentence;
(2) You include on your acreage report any insurable acreage of the insured crop that was prevented from being planted; and
(3) You did not plant the insured crop during or after the late planting period. Acreage planted to the insured crop during or after the late planting period is covered under the late planting provisions.
(b) The actuarial documents may contain additional levels of prevented planting coverage that you may purchase for the insured crop:
(1) Such purchase must be made on or before the sales closing date.
(2) If you do not purchase one of those additional levels by the sales closing date, you will receive the prevented planting coverage specified in the Crop Provisions.
(3) If you have a Catastrophic Risk Protection Endorsement for any crop, the additional levels of prevented planting coverage will not be available for that crop.
(4) You cannot increase your elected or assigned prevented planting coverage level for any crop year if a cause of loss that could prevent planting (even though it is not known whether such cause will actually prevent planting) has occurred during the prevented planting insurance period specified in section 17(a)(1)(i) or (ii) and prior to your request to change your prevented planting coverage level.
(c) The premium amount for acreage that is prevented from being planted will be the same as that for timely planted acreage except as specified in section 15(f). If the amount of premium you are required to pay (gross premium less the subsidy) for acreage that is prevented from being planted exceeds the liability on such acreage, coverage for those acres will not be provided (no premium will be due and no indemnity will be paid for such acreage).
(d) Prevented planting coverage will be provided against:
(1) Drought, failure of the irrigation water supply, failure or breakdown of irrigation equipment or facilities, or the inability to prepare the land for irrigation using your established irrigation method, due to an insured cause of loss only if, on the final planting date (or within the late planting period if you elect to try to plant the crop), you provide documentation acceptable to us to establish:
(i) For non-irrigated acreage, the area that is prevented from being planted has insufficient soil moisture for germination of seed or progress toward crop maturity due to a prolonged period of dry weather. The documentation for prolonged period of dry weather must be verifiable using information collected by sources whose business it is to record and study the weather, including, but not limited to, local weather reporting stations of the National Weather Service; or
(ii) For irrigated acreage:
(A) Due to an insured cause of loss, there is not a reasonable expectation of having adequate water to carry out an irrigated practice or you are unable to prepare the land for irrigation using your established irrigation method:
(1) If you knew or had reason to know on the final planting date or during the late planting period that your water will be reduced, no reasonable expectation exists; and
(2) Available water resources will be verified using information from State Departments of Water Resources, U.S. Bureau of Reclamation, Natural Resources Conservation Service or other sources whose business includes collection of water data or regulation of water resources; or
(B) The irrigation equipment or facilities have failed or broken down if such failure or breakdown is due to an insured cause of loss specified in section 12(d).
(2) Causes other than drought, failure of the irrigation water supply, failure or breakdown of the irrigation equipment or facilities, or your inability to prepare the land for irrigation using your established irrigation method, provided the cause of loss is specified in the Crop Provisions. However, if it is possible for you to plant on or prior to the final planting date when other producers in the area are planting and you fail to plant, no prevented planting payment will be made.
(e) The maximum number of acres that may be eligible for a prevented planting payment for any crop will be determined as follows:
(1) The total number of acres eligible for prevented planting coverage for all crops cannot exceed the number of acres of cropland in your farming operation for the crop year, unless you are eligible for prevented planting coverage on double cropped acreage in accordance with section 17(f)(4). The eligible acres for each insured crop will be determined as follows:
(i) If you have planted any crop in the county for which prevented planting insurance was available (you will be considered to have planted if your APH database contains actual planted acres) or have received a prevented planting insurance guarantee in any one or more of the four most recent crop years, and the insured crop is not required to be contracted with a processor to be insured, unless you qualify for the exception in section 17(e)(1)(ii)(E):
(A) The number of eligible acres will be the maximum number of acres certified for APH purposes, or insured acres reported, for the crop in any one of the four most recent crop years (not including reported prevented planting acreage that was planted to a second crop unless you meet the double cropping requirements in section 17(f)(4)).
(B) If you acquire additional land for the current crop year, the number of eligible acres determined in section 17(e)(1)(i)(A) for a crop may be increased by multiplying it by the ratio of the total cropland acres that you are farming this year (if greater) to the total cropland acres that you farmed in the previous year, provided that:
(1) You submit proof to us that you acquired additional acreage for the current crop year by any of the methods specified in section 17(f)(12);
(2) The additional acreage was acquired in time to plant it for the current crop year using good farming practices; and
(3) No cause of loss has occurred at the time you acquire the acreage that may prevent planting (except acreage you leased the previous year and continue to lease in the current crop year).
(C) If you add adequate irrigation facilities to your existing non-irrigated acreage or if you acquire additional land for the current crop year that has adequate irrigation facilities, the number of eligible acres determined in section 17(e)(1)(i)(A) for irrigated acreage of a crop may be increased by multiplying it by the ratio of the total irrigated acres that you are farming this year (if greater) to the total irrigated acres that you farmed in the previous year, provided the conditions in sections 17(e)(1)(i)(B)(1), (2) and (3) are met. If there were no irrigated acres in the previous year, the eligible irrigated acres for a crop will be limited to the lesser of the number of eligible non-irrigated acres of the crop or the number of acres on which adequate irrigation facilities were added.
(ii) If you have not planted any crop in the county for which prevented planting insurance was available (you will be considered to have planted if your APH database contains actual planted acres) or have not received a prevented planting insurance guarantee in all of the four most recent crop years, and the insured crop is not required to be contracted with a processor to be insured:
(A) The number of eligible acres will be:
(1) The number of acres specified on your intended acreage report, which must be submitted to us by the sales closing date for all crops you insure for the crop year and that is accepted by us; or
(2) The number of acres specified on your intended acreage report, which must be submitted to us within 10 days of the time you acquire the acreage and that is accepted by us, if, on the sales closing date, you do not have any acreage in a county and you subsequently acquire acreage through a method described in section 17(f)(12) in time to plant it using good farming practices.
(B) The total number of acres listed on the intended acreage report may not exceed the number of acres of cropland in your farming operation at the time you submit the intended acreage report.
(C) If you acquire additional acreage after we accept your intended acreage report, the number of acres determined in section 17(e)(1)(ii)(A) may be increased in accordance with section 17(e)(1)(i)(B) and (C).
(D) Prevented planting coverage will not be provided for any acreage included on the intended acreage report or any increased amount of acreage determined in accordance with section 17(e)(1)(ii)(C) if a cause of loss that may prevent planting occurred before the acreage was acquired, as determined by us.
(E) If you were eligible to file an intended acreage report the first crop year, you may file an intended acreage report for the second crop year. If you choose to file an intended acreage report for the second crop year, the number of eligible acres will be the number of acres specified on your intended acreage report and not the number of eligible acres determined in accordance with section 17(e)(1)(i).
(F) You cannot file an intended acreage report more than 2 consecutive crop years.
(iii) For any crop that must be contracted with a processor to be insured:
(A) The number of eligible acres will be:
(1) The number of acres of the crop specified in the processor contract, if the contract specifies a number of acres contracted for the crop year;
(2) The result of dividing the quantity of production stated in the processor contract by your approved yield, if the processor contract specifies a quantity of production that will be accepted (for the purposes of establishing the number of prevented planting acres, any reductions applied to the transitional yield for failure to certify acreage and production for four prior years will not be used); or
(3) Notwithstanding sections 17(e)(1)(iii)(A)(1) and (2), if a minimum number of acres or amount of production is specified in the processor contract, this amount will be used to determine the eligible acres.
(B) If a processor cancels or does not provide contracts, or reduces the contracted acreage or production from what would have otherwise been allowed, solely because the acreage was prevented from being planted due to an insured cause of loss, we will determine the number of eligible acres based on the number of acres or amount of production you had contracted in the county in the previous crop year. If the applicable Crop Provisions require that the price election be based on a contract price, and a contract is not in force for the current year, the price election will be based on the contract price in place for the previous crop year. If you did not have a processor contract in place for the previous crop year, you will not have any eligible prevented planting acreage for the applicable processor crop. The total eligible prevented planting acres in all counties cannot exceed the total number of acres or amount of production contracted in all counties in the previous crop year.
(C) In the event that your contracted acreage or production for the current crop year is reduced, for a reason not solely due to the acreage being prevented from being planted, or you have no contracted acreage for the current crop year, and the reduction or lack of contract results in no remaining eligible acres to use on your total cropland acres in the county:
(1) You must first exhaust all other eligible acres;
(2) The number of eligible acres for the contracted crop will be determined based on the number of acres or amount of production you contracted in the county in the previous crop year, less the current year’s contracted acreage or production, if applicable;
(3) The prevented planting payment and premium will be calculated in accordance with section 17(h)(2);
(4) If you did not have a processor contract in place for the previous crop year, no eligible contracted acreage exists for this purpose.
(2) Any eligible acreage determined in accordance with section 17(e)(1) will be reduced by subtracting the number of acres of the crop (insured and uninsured) that are timely and late planted, including acreage specified in section 16(b), unless your first insured crop failed and you plant an uninsured second crop on the same acres within the same crop year, the acres for the uninsured second crop will not be subtracted from the eligible prevented planting acreage.
(f) Regardless of the number of eligible acres determined in section 17(e), prevented planting coverage will not be provided for any acreage:
(1) That does not constitute at least 20 acres or 20 percent of the insurable crop acreage in the unit, whichever is less (If the crop is in a whole-farm unit, the 20 acre or 20 percent requirement will be applied separately to each crop in the whole-farm unit). Any prevented planting acreage within a field that contains planted acreage will be considered acreage of the same crop, type, and practice that is planted in the field unless:
(i) The acreage that was prevented from being planted constitutes at least 20 acres or 20 percent of the total insurable acreage in the field and you produced both crops, crop types, or followed both practices in the same field in the same crop year within any one of the four most recent crop years;
(ii) You were prevented from planting a first insured crop and you planted a second crop in the field (There can only be one first insured crop in a field unless the requirements in section 17(f)(1)(i) or (iii) are met);
(iii) The insured crop planted in the field would not have been planted on the remaining prevented planting acreage (e.g., where due to Crop Provisions, Special Provisions, or processor contract specifications rotation requirements would not be met, or you already planted the total number of acres specified in the processor contract); or
(iv) The acreage that was prevented from being planted constitutes at least 20 acres or 20 percent of the total insurable acreage in the field and you provide proof that you intended to plant another crop, crop type, or follow both practices on the acreage (including, but not limited to inputs purchased, applied or available to apply, or that acreage was part of a crop rotation).
(2) For which the actuarial documents do not provide the information needed to determine the premium rate, unless a written agreement designates such premium rate;
(3) Used for conservation purposes, intended to be left unplanted under any program administered by the USDA or other government agency, or required to be left unharvested under the terms of the lease or any other agreement (The number of acres eligible for prevented planting will be limited to the number of acres specified in the lease for which you are required to pay either cash or share rent);
(4) On which the insured crop is prevented from being planted, if you or any other person receives a prevented planting payment for any crop for the same acreage in the same crop year, excluding share arrangements, unless:
(i) It is a practice that is generally recognized by agricultural experts or organic agricultural experts in the area to plant the insured crop for harvest following harvest of the first insured crop, and additional coverage insurance offered under the authority of the Act is available in the county for both crops in the same crop year;
(ii) For the insured crop that is prevented from being planted, you provide records acceptable to us of acreage and production that show (your double cropping history is limited to the highest number of acres double cropped within the applicable four-year period unless your double cropping history is determined in accordance with section 15(i)(3)):
(A) You have double cropped acreage in at least 2 of the last 4 crop years in which the insured crop that is prevented from being planted in the current crop year was grown (you may apply your history of double cropping to any acreage of the insured crop in the county (for example, you have 100 cropland acres in the county and have double cropped wheat and soybeans on all 100 acres and you acquire an additional 100 acres in the county, you can apply your history of 100 double cropped acres to any of the 200 acres in the county)); or
(B) The applicable acreage you are prevented from planting in the current crop year was double cropped for at least 2 of the last 4 crop years in which the insured crop that is prevented from being planted was grown. You may only use the history of double cropping for the same physical acres from which double cropping records were provided from one or more other producers (for example, if a neighbor has double cropped 100 acres of wheat and soybeans in the county and you acquire your neighbor’s 100 double cropped acres and an additional 100 acres in the county, you can only apply your neighbor’s history of double cropped acreage to the same 100 acres that your neighbor double cropped); and
(iii) The amount of acreage you are double cropping in the current crop year does not exceed the number of acres for which you provided the records required in section 17(f)(4)(ii);
(5) On which the insured crop is prevented from being planted, if:
(i) Any crop is planted within or prior to the late planting period or on or prior to the final planting date if no late planting period is applicable, unless:
(A) You meet the double cropping requirements in section 17(f)(4);
(B) The crop planted was a cover crop; or
(C) No benefit, including any benefit under any USDA program, was derived from the crop;
(ii) Any volunteer crop is harvested for grain or seed at any time;
(iii) The act of haying, grazing, or cutting for silage, haylage, or baleage a cover crop or volunteer crop contributed to the acreage being prevented from being planted;
(iv) A cover crop is planted within or prior to the late planting period or on or prior to the final planting date if no late planting period is applicable and is harvested for grain or seed at any time.
(6) For which planting history or conservation plans indicate the acreage would have remained fallow for crop rotation purposes or on which any pasture or forage crop is in place on the acreage during the time planting of the insured crop generally occurs in the area. Cover plants that are seeded, transplanted, or that volunteer:
(i) More than 12 months prior to the final planting date for the insured crop that was prevented from being planted will be considered pasture or a forage crop that is in place (e.g., the cover crop is planted 15 months prior to the final planting date and remains in place during the time the insured crop would normally be planted); or
(ii) Less than 12 months prior to the final planting date for the insured crop that was prevented from being planted will not be considered pasture or a forage crop that is in place;
(7) That exceeds the number of acres eligible for a prevented planting payment;
(8) That exceeds the number of eligible acres physically available for planting.
(i) In order for acreage to be considered physically available for planting, the acreage must:
(A) Be free of trees, rocky outcroppings, or other factors that prevent proper and timely preparation of the seedbed for planting and harvest of the crop in the crop year;
(B) Not be enrolled in a USDA program that removes the acreage from crop production;
(C) Not be planted to a perennial crop (i.e., trees or vines either planted on the acreage, or not removed from the acreage in a proper or timely manner, thus preventing the timely planting of a crop for the crop year);
(D) Not have pasture, rangeland or forage in place (see section 17(f)(6));
(E) Unless otherwise allowed in the Special Provisions, in at least 1 of the 4 most recent crop years immediately preceding the current crop year, have been planted to a crop (planted includes annual regrowth of a perennial forage or mint crop):
(1) Using recognized good farming practices;
(2) Insured under the authority of the Act or NAP; and
(3) That was harvested, or if not harvested, was adjusted for claim purposes under the authority of the Act or NAP due to an insured cause of loss (other than a cause of loss related to flood, excess moisture, drought, or other cause of loss specified in the Special Provisions).
(ii) If you do not meet the requirements of section 17(f)(8)(i)(E) because a crop specific plan of insurance offered under the authority of the Act or NAP was not available for the crops planted on the acreage in the 4 most recent crop years, the acreage may be considered physically available for planting if you can prove the acreage was planted and harvested using good farming practices in at least 2 consecutive years out of the 4 most recent crop years immediately preceding the current crop year.
(iii) Once any acreage does not satisfy the requirements in section 17(f)(8)(i)(E) or 17(f)(8)(ii), such acreage will be considered physically unavailable for planting until the acreage has been planted to a crop in accordance with 17(f)(8)(i)(E) for 2 consecutive crop years, or until such acreage meets the requirements of 17(f)(8)(ii).
(9) For which you cannot provide proof that you had the inputs (including, but not limited to, sufficient equipment and labor) available to plant and produce a crop with the expectation of producing at least the yield used to determine your production guarantee or amount of insurance. Evidence that you previously had planted the crop on the unit will be considered adequate proof unless:
(i) There has been a change in the availability of inputs since the crop was last planted that could affect your ability to plant and produce the insured crop;
(ii) We determine you have insufficient inputs to plant the total number of insured crop acres (e.g., you will not receive a prevented planting payment if you have sufficient inputs to plant only 80 acres but you have already planted 80 acres and are claiming prevented planting on an additional 100 acres); or
(iii) Your planting practices or rotational requirements show the acreage would have remained fallow or been planted to another crop;
(10) Based on an irrigated practice production guarantee or amount of insurance unless adequate irrigation facilities were in place to carry out an irrigated practice on the acreage prior to the insured cause of loss that prevented you from planting. Acreage with an irrigated practice production guarantee will be limited to the number of acres allowed for that practice under sections 17(e) and (f);
(11) Based on a crop type that you did not plant, or did not receive a prevented planting insurance guarantee for, in at least one of the four most recent crop years:
(i) Types for which separate projected prices or price elections, as applicable, amounts of insurance, or production guarantees are available must be included in your APH database in at least one of the four most recent crop years (Crops for which the insurance guarantee is not based on APH must be reported on your acreage report in at least one of the four most recent crop years) except as allowed in section 17(e)(1)(ii) or (iii); and
(ii) We will limit prevented planting payments based on a specific crop type to the number of acres allowed for that crop type as specified in sections 17(e) and (f); or
(12) If a cause of loss has occurred that may prevent planting at the time:
(i) You lease the acreage (except acreage you leased the previous crop year and continue to lease in the current crop year);
(ii) You buy the acreage;
(iii) The acreage is released from a USDA program which prohibits harvest of a crop;
(iv) You request a written agreement to insure the acreage; or
(v) You acquire the acreage through means other than lease or purchase (such as inherited or gifted acreage).
(g) If you purchased an additional coverage policy for a crop, and you executed a High-Risk Land Exclusion Option that separately insures acreage which has been designated as “high-risk” land by FCIC under a Catastrophic Risk Protection Endorsement for that crop, the maximum number of acres eligible for a prevented planting payment will be limited for each policy as specified in sections 17(e) and (f).
(h) If you are prevented from planting a crop for which you do not have an adequate base of eligible prevented planting acreage, as determined in accordance with section 17(e)(1), we will use acreage from another crop insured for the current crop year for which you have remaining eligible prevented planting acreage.
(1) The crop first used for this purpose will be the insured crop that would have a prevented planting payment most similar to the payment for the crop that was prevented from being planted.
(i) If there are still insufficient eligible prevented planting acres, the next crop used will be the insured crop that would have the next closest prevented planting payment.
(ii) In the event payment amounts based on other crops are an equal amount above and below the payment amount for the crop that was prevented from being planted, eligible acres for the crop with the higher payment amount will be used first.
(2) The prevented planting payment and premium will be based on:
(i) The crop that was prevented from being planted if the insured crop with remaining eligible acreage would have resulted in a higher prevented planting payment than would have been paid for the crop that was prevented from being planted; or
(ii) The crop from which eligible acres are being used if the insured crop with remaining eligible acreage will result in a lower prevented planting payment than would have been paid for the crop that was prevented from being planted.
(3) For example, assume you were prevented from planting 200 acres of corn and you have 100 acres eligible for a corn prevented planting guarantee that would result in a payment of $40 per acre. You also had 50 acres of potato eligibility that would result in a $100 per acre payment and 90 acres of grain sorghum eligibility that would result in a $30 per acre payment. Your prevented planting coverage will be based on 100 acres of corn ($40 per acre), 90 acres of grain sorghum ($30 per acre), and an additional 10 acres of corn (using potato eligible acres and paid as corn at $40 per acre). Your prevented planting payment would be $7,100 ($4,000 + $2,700 + $400).
(4) Prevented planting coverage will be allowed as specified in section 17(h) only if the crop that was prevented from being planted meets all policy provisions, except for having an adequate base of eligible prevented planting acreage. Payment may be made based on crops other than those that were prevented from being planted even though other policy provisions, including but not limited to, processor contract and rotation requirements, have not been met for the crop whose eligible acres are being used. When you have exhausted eligible acres to provide prevented planting coverage for all insured cropland acres in your farming operation, you may use remaining eligible acres as established in section 17(e)(1)(iii)(C).
(5) An additional administrative fee will not be due as a result of using eligible prevented planting acreage as specified in section 17(h).
(i) The prevented planting payment for any eligible acreage within a unit will be determined by:
(1) Multiplying the prevented planting coverage level percentage you elected, or that is contained in the Crop Provisions if you did not elect a prevented planting coverage level percentage, by:
(i) Your amount of insurance per acre; or
(ii) The amount determined by multiplying the production guarantee (per acre) for timely planted acreage of the insured crop (or type, if applicable) by your price election or your projected price, whichever is applicable;
(2) Multiplying the result of section 17(i)(1) by the number of eligible prevented planting acres in the unit; and
(3) Multiplying the result of section 17(i)(2) by your share.
Terms of this policy which are specifically designated for the use of written agreements may be altered by written agreement in accordance with the following:
(a) You must apply in writing for each written agreement (including renewal of a written agreement) no later than the sales closing date, except as provided in section 18(e);
(b) The application for a written agreement must contain all variable terms of the contract between you and us that will be in effect if the written agreement is not approved;
(c) If approved by FCIC, the written agreement will include all variable terms of the contract, including, but not limited to, the crop; practice, type or variety; guarantee; premium rate; and projected price, harvest price, price election or amount of insurance, as applicable, or the information needed to determine such variable terms. If the written agreement is for a county:
(1) That has a price election or amount of insurance stated in the actuarial documents, for the crop, practice, type or variety, the written agreement will contain the price election or amount of insurance stated in the actuarial documents, for the crop, practice, type or variety;
(2) That does not have price elections or amounts of insurance stated in the actuarial documents, for the crop, practice, type or variety, the written agreement will contain a price election or amount of insurance that does not exceed the price election or amount of insurance contained in the actuarial documents, for the county that is used to establish the other terms of the written agreement, unless otherwise authorized by the Crop Provisions;
(3) For which revenue protection is not available for the crop, but revenue protection is available in the State for the crop, the written agreement will contain the information used to establish the projected price and harvest price, as applicable, for that State; or
(4) In a State for which revenue protection is not available for the crop, but revenue protection is available for the crop in another State, the written agreement is available for yield protection only, and will contain the information needed to determine the projected price for the crop from another State as determined by FCIC;
(d) Each written agreement will only be valid for the number of crop years specified in the written agreement, and a multi-year written agreement:
(1) Will only apply for any particular crop year designated in the written agreement if all terms and conditions in the written agreement are still applicable for the crop year and the conditions under which the written agreement has been provided have not changed prior to the beginning of the insurance period (If conditions change during or prior to the crop year, the written agreement will not be effective for that crop year but may still be effective for a subsequent crop year if conditions under which the written agreement has been provided exist for such year);
(2) May be canceled in writing by:
(i) FCIC not less than 30 days before the cancellation date if it discovers that any term or condition of the written agreement, including the premium rate, is not appropriate for the crop; or
(ii) You or us on or before the cancellation date;
(3) That is not renewed in writing after it expires, is not applicable for a crop year, or is canceled, then insurance coverage will be in accordance with the terms and conditions stated in this policy, without regard to the written agreement; and
(4) Will be automatically canceled if you transfer your policy to another insurance provider (No notice will be provided to you and for any subsequent crop year, for a written agreement to be effective, you must timely request renewal of the written agreement in accordance with this section);
(e) A request for a written agreement may be submitted:
(1) After the sales closing date, but on or before the acreage reporting date, if you demonstrate your physical inability to submit the request on or before the sales closing date (e.g., you have been hospitalized or a blizzard has made it impossible to submit the written agreement request in person or by mail); or
(2) For the first year the written agreement is requested:
(i) On or before the acreage reporting date to:
(A) Insure unrated land, or an unrated practice, type or variety of a crop; although, if required by FCIC, such written agreements may be approved only after appraisal of the acreage by us and:
(1) The crop’s potential is equal to or exceeds 90 percent of the yield used to determine your production guarantee or amount of insurance; and
(2) You sign the written agreement no later than the date the first field is appraised or by the expiration date for you to accept the offer, whichever comes first; or
(B) Establish optional units in accordance with FCIC procedures that otherwise would not be allowed or change the premium rate or transitional yield for designated high-risk land;
(ii) On or before the cancellation date to insure a crop in a county that does not have actuarial documents for the crop (If the Crop Provisions do not provide a cancellation date for the county, the cancellation date for other insurable crops in the same State that have similar final planting and harvesting dates will be applicable); or
(iii) On or before the date specified in the Crop Provisions or Special Provisions;
(f) A request for a written agreement must contain:
(1) For all written agreement requests:
(i) A completed “Request for Actuarial Change” form;
(ii) A completed APH (only for crop policies that require APH) based on verifiable records of actual yields for the crop and county for which the written agreement is being requested (the actual yields do not necessarily have to be from the same physical acreage for which you are requesting a written agreement), and verifiable records of actual yields if required by FCIC;
(iii) Evidence from agricultural experts or organic agricultural experts, as applicable, that the crop can be produced in the area if the request is to provide insurance for the crop, practices, types, or varieties that are not insurable, unless we are notified in writing by FCIC that such evidence is not required by FCIC;
(iv) The legal description of the land (in areas where legal descriptions are available) and the FSA farm number including tract and field numbers, if available. The submission must also include an FSA aerial photograph, or field boundaries derived by a Geographic Information System or Global Positioning System, or other legible maps delineating field boundaries where you intend to plant the crop for which insurance is requested; and
(v) For any perennial crop, an inspection report completed by us;
(2) For written agreement requests for counties without actuarial documents for the crop, the requirements in section 18(f)(1) (except section 18(f)(1)(ii)) and:
(i) For a crop you (or anyone with a substantial beneficial interest in you) have previously planted (or produced a crop if the crop is a perennial crop) in the county or area for at least three years:
(A) A completed APH (only for crop policies that require APH) based on verifiable production records of actual yields for the crop; and
(B) Verifiable production records for at least the three most recent crop years in which the crop was planted (or produced a crop if the crop is a perennial crop):
(1) The verifiable production records do not necessarily have to be from the same physical acreage for which you are requesting a written agreement;
(2) Verifiable production records do not have to be submitted for any year you (or anyone with a substantial beneficial interest in you) have insured the crop in the county or area and have certified the yields on the applicable production reports or the yields are based on your insurance claim (although you are not required to submit production records, you still must maintain production records in accordance with section 21); and
(3) FCIC will not consider any crop year in which the crop was planted (or produced a crop if the crop is a perennial crop) outside of the most recent ten crop years as a year of previously planting the crop (or having produced a crop if the crop is a perennial crop), unless verifiable production records are provided, or the crop was insured for that crop year;
(ii) For a crop you (or anyone with a substantial beneficial interest in you) have not previously planted (or produced a crop if the crop is a perennial crop) in the county or area for at least three years:
(A) A completed APH (only for crop policies that require APH) based on verifiable production records of actual yields for the similar crop;
(B) Verifiable production records for at least the three most recent crop years in which the similar crop was planted (or produced a crop if the crop is a perennial crop) in the county or area:
(1) The verifiable production records for the similar crop do not necessarily have to be from the same physical acreage for which you are requesting a written agreement;
(2) Verifiable production records do not have to be submitted for any crop year you (or anyone with a substantial beneficial interest in you) have insured the similar crop in the county or area and have certified the yields on the applicable production reports or the yields are based on your insurance claim (although you are not required to submit production records, you still must maintain production records in accordance with section 21); and
(3) FCIC will not consider any crop year in which the similar crop was planted (or produced a crop if the crop is a perennial crop) outside of the most recent ten crop years as a year of previously planting the similar crop (or having produced a crop if the crop is a perennial crop), unless verifiable production records are provided, or the similar crop was insured, for that crop year;
(C) If you (or anyone with a substantial beneficial interest in you) have at least one year of production records, but less than three years of production records, for the crop in the county or area but have production records for a similar crop in the county or area such that the combination of both sets of records results in at least three years of production records, you must provide the information required in sections 18(f)(2)(i)(A) and (B) for the years you (or anyone with a substantial beneficial interest in you) planted the crop (or produced a crop if the crop is a perennial crop) in the county or area and the information required in sections 18(f)(2)(ii)(A) and (B) regarding the similar crop for the remaining years; and
(D) A similar crop to the crop for which a written agreement is being requested must:
(1) Be included in the same category of crops, e.g., row crops (including, but not limited to, small grains, coarse grains, and oil seed crops), vegetable crops grown in rows, tree crops, vine crops, bush crops, etc., as defined by FCIC;
(2) Have substantially the same growing season (i.e., normally planted around the same dates and harvested around the same dates);
(3) Require comparable agronomic conditions (e.g., comparable needs for water, soil, etc.); and
(4) Be subject to substantially the same risks (frequency and severity of loss would be expected to be comparable from the same cause of loss);
(iii) The dates you and other growers in the area normally plant and harvest the crop, if applicable;
(iv) The name, location of, and approximate distance to the place the crop will be sold or used by you; and
(v) For any irrigated practice, the water source, method of irrigation, and the amount of water needed for an irrigated practice for the crop; and
(3) Such other information as specified in the Special Provisions or required by FCIC;
(g) A request for a written agreement will not be accepted if:
(1) The request is submitted to us after the applicable deadline contained in sections 18(a) or (e);
(2) All the information required in section 18(f) is not submitted to us with the request for a written agreement (The request for a written agreement may be accepted if any missing information is available from other acceptable sources); or
(3) The request is not authorized by the policy;
(h) A request for a written agreement will be denied if:
(1) FCIC determines the risk is excessive;
(2) Your APH history demonstrates you have not produced at least 50 percent of the transitional yield for the crop, type, and practice obtained from the county, or a county with similar agronomic conditions and risk exposure, when previously grown;
(3) There is not adequate information available to establish an actuarially sound premium rate and insurance coverage for the crop and acreage;
(4) The crop, or a similar crop, was not previously grown in the county or area, or there is no evidence of a market for the crop (applicable only for counties without actuarial documents); or
(5) Agricultural experts or organic agricultural experts determine the crop, practice, or type is not adapted to the county;
(i) A written agreement will be denied unless:
(1) FCIC approves the written agreement;
(2) The original written agreement is signed by you and delivered to us, or postmarked, not later than the expiration date for you to accept the offer;
(3) We accept the written agreement offer; and
(4) The crop meets the minimum appraisal amount specified in section 18(e)(2)(i)(A)(1), if applicable;
(j) Multi-year written agreements may be canceled and requests for renewal may be rejected if the severity or frequency of your loss experience under the written agreement is significantly worse than expected based on the information provided by you or used to establish your premium rate and the loss experience of other crops with similar risks in the area;
(k) With respect to your and our ability to reject an offer for a written agreement:
(1) When a single Request for Actuarial Change form is submitted, regardless of how many requests for changes are contained on the form, you and we can only accept or reject the written agreement in its entirety (you cannot reject specific terms of the written agreement and accept others);
(2) When multiple Request for Actuarial Change forms are submitted, regardless of when the forms are submitted, for the same condition or for the same crop (i.e., to insure corn on ten legal descriptions where there are no actuarial documents in the county or the request is to change the premium rates from the high-risk rates) all these forms may be treated as one request and you and we will only have the option of accepting or rejecting the written agreement in its entirety (you cannot reject specific terms of the written agreement and accept others);
(3) When multiple Request for Actuarial Change forms are submitted, regardless of when the forms are submitted, for the different conditions or for different crops, separate agreements may be issued and you and we will have the option to accept or reject each written agreement; and
(4) If we reject an offer for a written agreement approved by FCIC, you may seek arbitration or mediation of our decision to reject the offer in accordance with section 20;
(l) Any information that is submitted by you after the applicable deadlines in sections 18(a) and (e) will not be considered, unless such information is specifically requested in accordance with section 18(f)(3);
(m) If the written agreement or the policy is canceled for any reason, or the period for which an existing written agreement is in effect ends, a request for renewal of the written agreement must contain all the information required by this section and be submitted in accordance with section 18(a), unless otherwise specified by FCIC;
(n) If a request for a written agreement is not approved by FCIC, a request for a written agreement for any subsequent crop year that fails to address the stated basis for the denial will not be accepted (If the request for a written agreement contains the same information that was previously rejected or denied, you will not have any right to arbitrate, mediate or appeal the non-acceptance of your request); and
(o) If you disagree with any determination made by FCIC under section 18, you may obtain administrative review in accordance with 7 CFR part 400, subpart J or appeal in accordance with 7 CFR part 11, unless you have failed to comply with the provisions contained in section 18(g) or section 18(i)(2) or (4).
You must not abandon any crop to us. We will not accept any crop as compensation for payments due us.
(a) All determinations required by the policy will be made by us.
(b) If you disagree with our determinations:
(1) Except for determinations specified in section 18(g), section 18(i)(2) or section 20(b)(2) or (3), you may obtain an administrative review in accordance with 7 CFR part 400, subpart J (administrative review) or appeal in accordance with 7 CFR part 11 (appeal);
(2) Regarding whether you have used good farming practices (excluding determinations of the amount of assigned production for uninsured causes for your failure to use good farming practices), you may request reconsideration in accordance with the reconsideration process established for this purpose and published at 7 CFR part 400, subpart J (reconsideration). To appeal or request administrative review of determinations of the amount of assigned production, you must use the appeal or administration review process; or
(3) Any determination made by us that is a matter of general applicability is not subject to administrative review under 7 CFR part 400, subpart J or appeal under 7 CFR part 11. If you want to seek judicial review of any determination that is a matter of general applicability, you must request a determination of non-appealability from the Director of the National Appeals Division in accordance with 7 CFR part 11.6 prior to seeking judicial review.
(c) If you fail to exhaust your right to appeal, you will not be able to resolve the dispute through judicial review.
(d) You are not required to exhaust your right to reconsideration prior to seeking judicial review. If you do not request reconsideration and you elect to file suit, such suit must be brought in accordance with section 20(e)(2) and must be filed not later than one year after the date the determination regarding whether you used good farming practices was made.
(e) If reconsideration or appeal has been initiated within the time frames specified in those sections and judicial review is sought, any suit against us must be:
(1) Filed not later than one year after the date of the decision rendered in the reconsideration or appeal; and
(2) Brought in the United States district court for the district in which the insured farm involved in the decision is located.
(f) You may only recover contractual damages from us. Under no circumstances can you recover any attorney fees or other expenses, or any punitive, compensatory or any other damages from us in administrative review, appeal, reconsideration or litigation.
(a) If you do not agree with any determination made by us except those specified in section 20(d) or (e), the disagreement may be resolved through mediation in accordance with section 20(g). If the disagreement cannot be resolved through mediation, or you and we do not agree to mediation, you must timely seek resolution through arbitration in accordance with the rules of the American Arbitration Association (AAA), except as provided in sections 20(c) and (f), and unless rules are established by FCIC for this purpose. Any mediator or arbitrator with a familial, financial or other business relationship to you or us, or our agent or loss adjuster, is disqualified from hearing the dispute.
(1) All disputes involving determinations made by us, except those specified in section 20(d) or (e), are subject to mediation or arbitration. However, if the dispute in any way involves a policy or procedure interpretation, regarding whether a specific policy provision or procedure is applicable to the situation, how it is applicable, or the meaning of any policy provision or procedure, either you or we must obtain an interpretation from FCIC in accordance with 7 CFR part 400, subpart X or such other procedures as established by FCIC.
(i) Any interpretation by FCIC will be binding in any mediation or arbitration.
(ii) Failure to obtain any required interpretation from FCIC will result in the nullification of any agreement or award.
(iii) An interpretation by FCIC of a policy provision is considered a determination that is a matter of general applicability.
(iv) An interpretation by FCIC of a procedure may be appealed to the National Appeals Division in accordance with 7 CFR part 11.
(2) Unless the dispute is resolved through mediation, the arbitrator must provide to you and us a written statement describing the issues in dispute, the factual findings, the determinations and the amount and basis for any award and breakdown by claim for any award. The statement must also include any amounts awarded for interest. Failure of the arbitrator to provide such written statement will result in the nullification of all determinations of the arbitrator. All agreements reached through settlement, including those resulting from mediation, must be in writing and contain at a minimum a statement of the issues in dispute and the amount of the settlement.
(b) Regardless of whether mediation is elected:
(1) You must initiate arbitration proceedings within 1 year of the date we denied your claim or rendered the determination with which you disagree, whichever is later;
(2) If you fail to initiate arbitration in accordance with section 20(b)(1) and complete the process, you will not be able to resolve the dispute through judicial review;
(3) If arbitration has been initiated in accordance with section 20(b)(1) and completed, and judicial review is sought, suit must be filed not later than one year after the date the arbitration decision was rendered; and
(4) In any suit, if the dispute in any way involves a policy or procedure interpretation, regarding whether a specific policy provision or procedure is applicable to the situation, how it is applicable, or the meaning of any policy provision or procedure, an interpretation must be obtained from FCIC in accordance with 7 CFR part 400, subpart X or such other procedures as established by FCIC. Such interpretation will be binding.
(c) Any decision rendered in arbitration is binding on you and us unless judicial review is sought in accordance with section 20(b)(3). Notwithstanding any provision in the rules of the AAA, you and we have the right to judicial review of any decision rendered in arbitration.
(d) With respect to good farming practices:
(1) We will make decisions regarding what constitutes a good farming practice and determinations of assigned production for uninsured causes for your failure to use good farming practices.
(i) If you disagree with our determination of the amount of assigned production, you must use the arbitration or mediation process contained in this section.
(ii) If you disagree with our decision of what constitutes a good farming practice you may request through us that FCIC review our decision. Requests for FCIC review must be made within 30 days of the postmark date on the written notice of the determination regarding good farming practices.
(iii) You may not sue us for our decisions regarding whether good farming practices were used by you. You must request a determination from FCIC of what constitutes a good farming practice before filing any suit against FCIC.
(2) FCIC will make determinations regarding what constitutes a good farming practice. If you do not agree with any determination made by FCIC:
(i) You may request reconsideration by FCIC of this determination in accordance with the reconsideration process established for this purpose and published at 7 CFR part 400, subpart J; or
(ii) You may file suit against FCIC.
(A) You are not required to request reconsideration from FCIC before filing suit.
(B) Any suit must be brought against FCIC in the United States district court for the district in which the insured acreage is located.
(C) Suit must be filed against FCIC not later than one year after the date:
(1) Of the determination; or
(2) Reconsideration is completed, if reconsideration was requested under section 20(d)(2)(i).
(e) Except as provided in sections 18(n) or (o), or 20(d) or (k), if you disagree with any other determination made by FCIC or any claim where FCIC is directly involved in the claims process or directs us in the resolution of the claim, you may obtain an administrative review in accordance with 7 CFR part 400, subpart J (administrative review) or appeal in accordance with 7 CFR part 11 (appeal).
(1) If you elect to bring suit after completion of any appeal, such suit must be filed against FCIC not later than one year after the date of the decision rendered in such appeal.
(2) Such suit must be brought in the United States district court for the district in which the insured acreage is located.
(3) Under no circumstances can you recover any attorney fees or other expenses, or any punitive, compensatory or any other damages from FCIC.
(f) In any mediation, arbitration, appeal, administrative review, reconsideration or judicial process, the terms of this policy, the Act, and the regulations published at 7 CFR chapter IV, including the provisions of 7 CFR part 400, subpart P, are binding. Conflicts between this policy and any state or local laws will be resolved in accordance with section 31. If there are conflicts between any rules of the AAA and the provisions of your policy, the provisions of your policy will control.
(g) To resolve any dispute through mediation, you and we must both:
(1) Agree to mediate the dispute;
(2) Agree on a mediator; and
(3) Be present, or have a designated representative who has authority to settle the case present, at the mediation.
(h) Except as provided in section 20(i), no award or settlement in mediation, arbitration, appeal, administrative review or reconsideration process or judicial review can exceed the amount of liability established or which should have been established under the policy, except for interest awarded in accordance with section 26.
(i) In a judicial review only, you may recover attorneys fees or other expenses, or any punitive, compensatory or any other damages from us only if you obtain a determination from FCIC that we, our agent or loss adjuster failed to comply with the terms of this policy or procedures issued by FCIC and such failure resulted in you receiving a payment in an amount that is less than the amount to which you were entitled. Requests for such a determination should be addressed to the following: USDA/RMA/Deputy Administrator of Compliance/Stop 0806, 1400 Independence Avenue, SW., Washington, DC 20250-0806.
(j) If FCIC elects to participate in the adjustment of your claim, or modifies, revises or corrects your claim, prior to payment, you may not bring an arbitration, mediation or litigation action against us. You must request administrative review or appeal in accordance with section 20(e).
(k) Any determination made by FCIC that is a matter of general applicability is not subject to administrative review under 7 CFR part 400, subpart J or appeal under 7 CFR part 11. If you want to seek judicial review of any FCIC determination that is a matter of general applicability, you must request a determination of non-appealability from the Director of the National Appeals Division in accordance with 7 CFR 11.6 before seeking judicial review.
(a) We, and any employee of USDA authorized to investigate or review any matter relating to crop insurance, have the right to examine the insured crop and all records related to the insured crop and any mediation, arbitration or litigation involving the insured crop as often as reasonably required during the record retention period.
(b) You must retain, and provide upon our request, or the request of any employee of USDA authorized to investigate or review any matter relating to crop insurance:
(1) Complete records of the planting, replanting, inputs, production, harvesting, and disposition of the insured crop on each unit for three years after the end of the crop year (This requirement also applies to all such records for acreage that is not insured);
(2) All records used to establish the amount of production you certified on your production reports used to compute your approved yield for three years after the calendar date for the end of the insurance period for the crop year for which you initially certified such records, unless such records have already been provided to us (e.g., if you are a new insured and you certify 2015 through 2018 crop year production records in 2019 to determine your approved yield for the 2019 crop year, you must retain all records from the 2015 through 2018 crop years through the 2022 crop year. If you subsequently certify records of the 2019 crop year in 2020 to determine your approved yield for the 2020 crop year, you must retain the 2019 crop year records through the 2023 crop year and so forth for each subsequent year of production records certified); and
(3) While you are not required to maintain records beyond the record retention period specified in section 21(b)(2), at any time, if we or FCIC have evidence that you, or anyone assisting you, knowingly misreported any information related to any yield you have certified, we or FCIC will replace all yields in your APH database determined to be incorrect with the lesser of an assigned yield determined in accordance with section 3 or the yield determined to be correct:
(i) If an overpayment has been made to you, you will be required to repay the overpaid amount; and
(ii) Replacement of yields in accordance with section 21(b)(3) does not exempt you from other sanctions applicable under the terms of the policy or any applicable law.
(c) We, or any employee of USDA authorized to investigate or review any matter relating to crop insurance, may extend the record retention period beyond three years by notifying you of such extension in writing.
(d) By signing the application for insurance authorized under the Act or by continuing insurance for which you have previously applied, you authorize us or USDA, or any person acting for us or USDA authorized to investigate or review any matter relating to crop insurance, to obtain records relating to the planting, replanting, inputs, production, harvesting, and disposition of the insured crop from any person who may have custody of such records, including but not limited to, FSA offices, banks, warehouses, gins, cooperatives, marketing associations, and accountants. You must assist in obtaining all records we or any employee of USDA authorized to investigate or review any matter relating to crop insurance request from third parties.
(e) Failure to provide access to the insured crop or the farm, authorize access to the records maintained by third parties or assist in obtaining such records will result in a determination that no indemnity is due for the crop year in which such failure occurred.
(f) Failure to maintain or provide records will result in:
(1) The imposition of an assigned yield in accordance with section 3(f)(1) and 7 CFR part 400, subpart G for those crop years for which you do not have the required production records to support a certified yield;
(2) A determination that no indemnity is due if you fail to provide records necessary to determine your loss;
(3) Combination of the optional units into the applicable basic unit;
(4) Assignment of production to the units by us if you fail to maintain separate records:
(i) For your basic units; or
(ii) For any uninsurable acreage; and
(5) The imposition of consequences specified in section 6(g), as applicable.
(g) If the imposition of an assigned yield under section 21(f)(1) would affect an indemnity, prevented planting payment or replanting payment that was paid in a prior crop year, such claim will be adjusted and you will be required to repay any overpaid amounts.
(a) Other Like Insurance – Nothing in this section prevents you from obtaining other insurance not authorized under the Act. However, unless specifically required by policy provisions, you must not obtain any other crop insurance authorized under the Act on your share of the insured crop. If you cannot demonstrate that you did not intend to have more than one policy in effect, you may be subject to the consequences authorized under this policy, the Act, or any other applicable statute. If you can demonstrate that you did not intend to have more than one policy in effect (For example, an application to transfer your policy or written notification to an insurance provider that states you want to purchase, or transfer, insurance and you want any other policies for the crop canceled would demonstrate you did not intend to have duplicate policies), and:
(1) One is an additional coverage policy and the other is a Catastrophic Risk Protection policy:
(i) The additional coverage policy will apply if both policies are with the same insurance provider or, if not, both insurance providers agree; or
(ii) The policy with the earliest date of application will be in force if both insurance providers do not agree; or
(2) Both are additional coverage policies or both are Catastrophic Risk Protection policies, the policy with the earliest date of application will be in force and the other policy will be void, unless both policies are with:
(i) The same insurance provider and the insurance provider agrees otherwise; or
(ii) Different insurance providers and both insurance providers agree otherwise.
(b) Other Insurance Against Fire. If you have other insurance, whether valid or not, against damage to the insured crop by fire during the insurance period, and you have not excluded coverage for fire from this policy, we will be liable for loss due to fire caused by a naturally occurring event only for the smaller of:
(1) The amount of indemnity determined pursuant to this policy without regard to such other insurance; or
(2) The amount by which the loss from fire is determined to exceed the indemnity paid or payable under such other insurance.
(c) For the purpose of section 22(b), the amount of loss from fire will be the difference between the total value of the insured crop before the fire and the total value of the insured crop after the fire. This amount will be determined in accordance with the provisions in section 35.
Although your violation of a number of federal statutes, including the Act, may cause cancellation, termination, or voidance of your insurance contract, you should be specifically aware that your policy will be canceled if you are determined to be ineligible to receive benefits under the Act due to violation of the controlled substance provisions (title XVII) of the Food Security Act of 1985 (Pub. L. 99-198) and the regulations promulgated under the Act by USDA. Your insurance policy will be canceled if you are determined, by the appropriate Agency, to be in violation of these provisions. We will recover any and all monies paid to you or received by you during your period of ineligibility, and your premium will be refunded, less an amount for expenses and handling equal to 20 percent of the premium paid or to be paid by you.
(a) Any amount illegally or erroneously paid to you or that is owed to us but is delinquent may be recovered by us through offset by deducting it from any loan or payment due you under any Act of Congress or program administered by any United States Government Agency, or by other collection action.
(b) Interest will accrue at the rate of 1.25 percent simple interest per calendar month on any unpaid premium amount or administrative fee due us. With respect to any premiums or administrative fees owed, interest will start to accrue on the first day of the month following the issuance of the notice by us, provided that a minimum of 30 days have passed from the premium billing date specified in the Special Provisions.
(c) For the purpose of any other amounts due us, such as repayment of indemnities found not to have been earned:
(1) Interest will start on the date that notice is issued to you for the collection of the unearned amount;
(2) Amounts found due under this paragraph will not be charged interest if payment is made within 30 days of issuance of the notice by us;
(3) The amount will be considered delinquent if not paid within 30 days of the date the notice is issued by us;
(4) Penalties and interest will be charged in accordance with 31 U.S.C. 3717 and 4 CFR part 102; and
(5) The penalty for accounts more than 90 days delinquent is an additional 6 percent per annum.
(d) Interest on any amount due us found to have been received by you because of fraud, misrepresentation or presentation by you of a false claim will start on the date you received the amount with the additional 6 percent penalty beginning on the 31st day after the notice of amount due is issued to you. This interest is in addition to any other amount found to be due under any other federal criminal or civil statute.
If we determine that it is necessary to contract with a collection agency, refer the debt to government collection centers, the Department of Treasury Offset Program, or to employ an attorney to assist in collection, you agree to pay all the expenses of collection.
(f) All amounts paid will be applied first to expenses of collection if any, second to the reduction of any penalties which may have been assessed, then to reduction of accrued interest, and finally to reduction of the principal balance.
(a) Interest will accrue at the rate of 1.25 percent simple interest per calendar month on any unpaid amount owed to us or on any unpaid administrative fees owed to FCIC. For the purpose of premium amounts owed to us or administrative fees owed to FCIC, interest will start to accrue on the first day of the month following the issuance of the notice by us, provided that a minimum of 30 days have passed from the premium billing date specified in the Special Provisions. We will collect any unpaid amounts owed to us and any interest owed thereon and, prior to the termination date, we will collect any administrative fees and interest owed thereon to FCIC. After the termination date, FCIC will collect any unpaid administrative fees and any interest owed thereon for any catastrophic risk protection policy and we will collect any unpaid administrative fees and any interest owed thereon for additional coverage policies.
(b) For the purpose of any other amounts due us, such as repayment of indemnities found not to have been earned, interest will start to accrue on the date that notice is issued to you for the collection of the unearned amount. Amounts found due under this paragraph will not be charged interest if payment is made within 30 days of issuance of the notice by us. The amount will be considered delinquent if not paid within 30 days of the date the notice is issued by us.
(c) All amounts paid will be applied first to expenses of collection (see subsection (d) of this section) if any, second to the reduction of accrued interest, and then to the reduction of the principal balance.
(d) If we determine that it is necessary to contract with a collection agency or to employ an attorney to assist in collection, you agree to pay all of the expenses of collection.
(e) The portion of the amounts owed by you for a policy authorized under the Act that are owed to FCIC may be collected in part through administrative offset from payments you receive from United States government agencies in accordance with 31 U.S.C. chapter 37. Such amounts include all administrative fees, and the share of the overpaid indemnities and premiums retained by FCIC plus any interest owed thereon.
(a) In addition to any other corrections allowed in your policy subject to section 25(b), we may correct:
(1) Within 60 days after the sales closing date, any incorrect information on your application or provided by the sales closing date, including identification numbers for you and any person with a substantial beneficial interest in you, to ensure that the eligibility information is correct and consistent with information reported by you to any USDA agency;
(2) Within 30 days after the acreage reporting date, information reported to reconcile errors in the information with correct information that has been determined by any USDA agency;
(3) Within 30 days of any subsequent correction of data by FSA, erroneous information corrected as a result of verification of information; and
(4) At any time, any incorrect information if the incorrect information was caused by electronic transmission errors by us or errors made by any agency within USDA in transmitting the information provided by you for purposes of other USDA programs.
(b) Corrections may be made but will not take effect for the current crop year if the correction would allow you to:
(1) Avoid ineligibility requirements for insurance or obtain a disproportionate benefit under the crop insurance program or any related program administered by the Secretary;
(2) Obtain, enhance, or increase an insurance guarantee or indemnity if a cause of loss exists or has occurred before any correction has been made, or avoid premium owed if no loss is likely to occur; or
(3) Avoid an obligation or requirement under any Federal or State law.
We will pay simple interest computed on the net indemnity ultimately found to be due by us or by a final judgment of a court of competent jurisdiction, from and including the 61st day after the date you sign, date, and submit to us the properly completed claim on our form. Interest will be paid only if the reason for our failure to timely pay is NOT due to your failure to provide information or other material necessary for the computation or payment of the indemnity. The interest rate will be that established by the Secretary of the Treasury under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) and published in the
(a) If you have falsely or fraudulently concealed the fact that you are ineligible to receive benefits under the Act or if you or anyone assisting you has intentionally concealed or misrepresented any material fact relating to this policy:
(1) This policy will be voided; and
(2) You may be subject to remedial sanctions in accordance with 7 CFR part 400, subpart R.
(b) Even though the policy is void, you will still be required to pay 20 percent of the premium that you would otherwise be required to pay to offset costs incurred by us in the service of this policy. If previously paid, the balance of the premium will be returned.
(c) Voidance of this policy will result in you having to reimburse all indemnities paid for the crop year in which the voidance was effective.
(d) Voidance will be effective on the first day of the insurance period for the crop year in which the act occurred and will not affect the policy for subsequent crop years unless a violation of this section also occurred in such crop years.
(e) If you willfully and intentionally provide false or inaccurate information to us or FCIC or you fail to comply with a requirement of FCIC, in accordance with 7 CFR part 400, subpart R, FCIC may impose on you:
(1) A civil fine for each violation in an amount not to exceed the greater of:
(i) The amount of the pecuniary gain obtained as a result of the false or inaccurate information provided or the noncompliance with a requirement of FCIC; or
(ii) $10,000; and
(2) A disqualification for a period of up to 5 years from receiving any monetary or non-monetary benefit provided under each of the following:
(i) Any crop insurance policy offered under the Act;
(ii) The Farm Security and Rural Investment Act of 2002 (7 U.S.C. 7333 et seq.);
(iii) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.);
(iv) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et seq.);
(v) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.);
(vi) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et seq.);
(vii) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921 et seq.); and
(viii) Any federal law that provides assistance to a producer of an agricultural commodity affected by a crop loss or a decline in the prices of agricultural commodities.
If you transfer any part of your share during the crop year, you may transfer your coverage rights, if the transferee is eligible for crop insurance. We will not be liable for any more than the liability determined in accordance with your policy that existed before the transfer occurred. The transfer of coverage rights must be on our form and will not be effective until approved by us in writing. Both you and the transferee are jointly and severally liable for the payment of the premium and administrative fees. The transferee has all rights and responsibilities under this policy consistent with the transferee’s interest.
(a) You may assign your right to an indemnity for the crop year only to creditors or other persons to whom you have a financial debt or other pecuniary obligation. You may be required to provide proof of the debt or other pecuniary obligation before we will accept the assignment of indemnity.
(b) All assignments must be on our form and must be provided to us. Each assignment form may contain more than one creditor or other person to whom you have a financial debt or other pecuniary obligation.
(c) Unless you have provided us with a properly executed assignment of indemnity, we will not make any payment to a lienholder or other person to whom you have a financial debt or other pecuniary obligation even if you may have a lien or other assignment recorded elsewhere. Under no circumstances will we be liable:
(1) To any lienholder or other person to whom you have a financial debt or other pecuniary obligation where you have failed to include such lienholder or person on a properly executed assignment of indemnity provided to us; or
(2) To pay to all lienholders or other persons to whom you have a financial debt or other pecuniary obligation any amount greater than the total amount of indemnity owed under the policy.
(d) If we have received the properly executed assignment of indemnity form:
(1) Only one payment will be issued jointly in the names of all assignees and you; and
(2) Any assignee will have the right to submit all loss notices and forms as required by the policy.
(e) If you have suffered a loss from an insurable cause and fail to file a claim for indemnity within the period specified in section 14(e), the assignee may submit the claim for indemnity not later than 30 days after the period for filing a claim has expired. We will honor the terms of the assignment only if we can accurately determine the amount of the claim. However, no action will lie against us for failure to do so.
If the provisions of this policy conflict with statutes of the State or locality in which this policy is issued, the policy provisions will prevail. State and local laws and regulations in conflict with federal statutes, this policy, and the applicable regulations do not apply to this policy.
The descriptive headings of the various policy provisions are formulated for convenience only and are not intended to affect the construction or meaning of any of the policy provisions.
(a) All notices required to be given by you must be in writing and received by your crop insurance agent within the designated time unless otherwise provided by the notice requirement. Notices required to be given immediately may be by telephone or in person and confirmed in writing. Time of the notice will be determined by the time of our receipt of the written notice. If the date by which you are required to submit a report or notice falls on Saturday, Sunday, or a Federal holiday, or if your agent’s office is, for any reason, not open for business on the date you are required to submit such notice or report, such notice or report must be submitted on the next business day.
(b) All policy provisions, notices, and communications that we send to you will be:
(1) Provided by electronic means, unless:
(i) We do not have the ability to transmit such information to you by electronic means; or
(ii) You elect to receive a paper copy of such information;
(2) Sent to the location specified in your records with your crop insurance agent; and
(3) Conclusively presumed to have been received by you.
(a) You may elect an enterprise unit or whole-farm unit in accordance with the following:
(1) For crops for which revenue protection is available, you may elect:
(i) An enterprise unit if you elected revenue protection or yield protection; or
(ii) A whole-farm unit if you elected:
(A) Revenue protection and revenue protection is provided unless limited by the Special Provisions; or
(B) Yield protection only if whole-farm units are allowed by the Special Provisions;
(2) For crops for which revenue protection is not available, enterprise units or whole-farm units are available only if allowed by the Special Provisions;
(3) You must make such election on or before the earliest sales closing date for the insured crops in the unit and report such unit structure on your acreage report:
(i) For counties in which the actuarial documents specify a fall or winter sales closing date and a spring sales closing date, you may change your unit election on or before the spring sales closing date (earliest spring sales closing date for crops in the unit if electing a whole-farm unit) if you do not have any insured fall planted acreage of the insured crop;
(ii) Your unit selection will remain in effect from year to year unless you notify us in writing by the earliest sales closing date for the crop year for which you wish to change this election; and
(iii) These units may not be further divided except as specified herein;
(4) For an enterprise unit:
(i) To qualify, an enterprise unit must contain all of the insurable acreage of the same insured crop in:
(A) Two or more sections, if sections are the basis for optional units where the insured acreage is located;
(B) Two or more section equivalents determined in accordance with FCIC procedures, if section equivalents are the basis for optional units where the insured acreage is located or are applicable to the insured acreage;
(C) Two or more FSA farm numbers, if FSA farm numbers are the basis for optional units where the insured acreage is located;
(D) Any combination of two or more sections, section equivalents, or FSA farm numbers, if more than one of these are the basis for optional units where the acreage is located or are applicable to the insured acreage (e.g., if a portion of your acreage is located where sections are the basis for optional units and another portion of your acreage is located where FSA farm numbers are the basis for optional units, you may qualify for an enterprise unit based on a combination of these two parcels);
(E) One section, section equivalent, or FSA farm number that contains at least 660 planted acres of the insured crop. You may qualify under this paragraph based only on the type of parcel that is utilized to establish optional units where your insured acreage is located (e.g., if having two or more sections is the basis for optional units where the insured acreage is located, you may qualify for an enterprise unit if you have at least 660 planted acres of the insured crop in one section); or
(F) Two or more units established by written agreement; and
(ii) At least two of the sections, section equivalents, FSA farm numbers, or units established by written agreement in section 34(a)(4)(i)(A), (B), (C), (D), or (F) must each have planted acreage that constitutes at least the lesser of 20 acres or 20 percent of the insured crop acreage in the enterprise unit. If there is planted acreage in more than two sections, section equivalents, FSA farm numbers or units established by written agreement in section 34(a)(4)(i)(A), (B), (C), (D), or (F), these can be aggregated to form at least two parcels to meet this requirement. For example, if sections are the basis for optional units where the insured acreage is located and you have 80 planted acres in section one, 10 planted acres in section two, and 10 planted acres in section three, you may aggregate sections two and three to meet this requirement.
(iii) The crop must be insured under revenue protection or yield protection, unless otherwise specified in the Special Provisions;
(iv) If you want to change your unit structure from enterprise units to basic or optional units in any subsequent crop year, you must maintain separate records of acreage and production:
(A) For each basic unit, to be eligible to use records to establish the production guarantee for the basic unit; or
(B) For optional units, to qualify for optional units and to be eligible to use such records to establish the production guarantee for the optional units;
(v) If you do not comply with the production reporting provisions in section 3(f) for the enterprise unit, your yield for the enterprise unit will be determined in accordance with section 3(f)(1);
(vi) You must separately designate on the acreage report each section or other basis in section 34(a)(4)(i) you used to qualify for an enterprise unit; and
(vii) If we discover you do not qualify for an enterprise unit and such discovery is made:
(A) On or before the acreage reporting date, your unit division will be based on the basic or optional units, whichever you report on your acreage report and qualify for; or
(B) At any time after the acreage reporting date, we will assign the basic unit structure; and
(viii) If allowed by the actuarial documents, you may elect separate enterprise units for irrigated or non-irrigated practices.
(A) You may elect one enterprise unit for all irrigated practices or one enterprise unit for all non-irrigated practices or enterprise units for both.
(B) You must separately meet the requirements in section 34(a)(4) for each enterprise unit.
(C) If you elected separate enterprise units for both irrigated and non-irrigated practices and we discover you do not qualify for an enterprise unit for the irrigated or non-irrigated practice and such discovery is made:
(1) On or before the acreage reporting date, you may elect to insure:
(i) One enterprise unit for all irrigated or non-irrigated practices provided you meet the requirements in section 34(a)(4), and basic or optional units for the other practice, whichever you report on your acreage report and qualify for;
(ii) One enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4); or
(iii) Basic or optional units for all acreage of the crop in the county, whichever you report on your acreage report and qualify for; or
(2) At any time after the acreage reporting date, your unit structure will be one enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4). Otherwise, we will assign the basic unit structure.
(D) If you elected an enterprise unit on one practice (irrigated or non-irrigated) and a different unit structure on the other practice and we discover you do not qualify for an enterprise unit for the irrigated or non-irrigated practice and such discovery is made:
(1) On or before the acreage reporting date, your unit division will be based on basic or optional units, whichever you report on your acreage report and qualify for; or
(2) At any time after the acreage reporting date, we will assign the basic unit structure.
(ix) You may elect enterprise units as allowed by the Crop Provisions if provided in the actuarial documents.
(5) For a whole-farm unit:
(i) To qualify:
(A) All crops in the whole-farm unit must be insured:
(1) Under revenue protection (if you elected the harvest price exclusion for any crop, you must elect it for all crops in the whole-farm unit), unless the Special Provisions allow whole-farm units for another plan of insurance and you insure all crops in the whole-farm unit under such plan (e.g., if you plant corn and soybeans for which you have elected revenue protection and you plant canola for which you have elected yield protection, the corn, soybeans and canola would be assigned the unit structure in accordance with section 34(a)(5)(v));
(2) With us (e.g., if you insure your corn and canola with us and your soybeans with a different insurance provider, the corn, soybeans and canola would be assigned the unit structure in accordance with section 34(a)(5)(v)); and
(3) At the same coverage level (e.g., if you elect to insure your corn and canola at the 65 percent coverage level and your soybeans at the 75 percent coverage level, the corn, soybeans and canola would be assigned the unit structure in accordance with section 34(a)(5)(v)) unless you can elect separate coverage levels for all irrigated and all non-irrigated crops in accordance with section 3(b)(2)(iii) (e.g., if you elect to insure your irrigated corn at the 65 percent coverage level you must insure your irrigated canola at the 65 percent coverage level. If you elect to insure your non-irrigated corn at the 70 percent coverage level you must insure your non-irrigated canola at the 70 percent coverage level. If you elect to insure your irrigated corn at the 65 percent coverage level and your irrigated canola at the 70 percent coverage level your unit structure will be assigned in accordance with section 34(a)(5)(v));
(B) A whole-farm unit must contain all of the insurable acreage of at least two crops; and
(C) At least two of the insured crops must each have planted acreage that constitutes 10 percent or more of the total planted acreage liability of all insured crops in the whole-farm unit (For crops for which revenue protection is available, liability will be based on the applicable projected price only for the purpose of section 34(a)(5)(i)(C));
(ii) You will be required to pay separate administrative fees for each crop included in the whole-farm unit;
(iii) You must separately designate on the acreage report each basic unit for each crop in the whole-farm unit;
(iv) If you want to change your unit structure from a whole-farm unit to basic or optional units in any subsequent crop year, you must maintain separate records of acreage and production:
(A) For each basic unit, to be eligible to use such records to establish the production guarantee for the basic units; or
(B) For optional units, to qualify for optional units and to be eligible to use such records to establish the production guarantee for the optional units; and
(v) If we discover you do not qualify for a whole-farm unit for at least one insured crop because, even though you elected revenue protection for all your crops:
(A) You do not meet all of the other requirements in section 34(a)(5)(i), and such discovery is made:
(1) On or before the acreage reporting date, your unit division for all crops for which you elected a whole-farm unit will be based on basic or optional units, whichever you report on your acreage report and qualify for; or
(2) At any time after the acreage reporting date, we will assign the basic unit structure for all crops for which you elected a whole-farm unit; or
(B) It was not possible to establish a projected price for at least one of your crops, your unit division will be based on the unit structure you report on your acreage report and qualify for only for the crop for which a projected price could not be established, unless the remaining crops in the unit would no longer qualify for a whole-farm unit, in such case your unit division for the remaining crops will be based on the unit structure you report on your acreage report and qualify for.
(b) Unless limited by the Crop Provisions or Special Provisions, a basic unit as defined in section 1 of the Basic Provisions may be divided into optional units if, for each optional unit, you meet the following:
(1) You must plant the crop in a manner that results in a clear and discernible break in the planting pattern at the boundaries of each optional unit;
(2) All optional units you select for the crop year are identified on the acreage report for that crop year (Units will be determined when the acreage is reported but may be adjusted or combined to reflect the actual unit structure when adjusting a loss. No further unit division may be made after the acreage reporting date for any reason);
(3) You have records, that are acceptable to us, for at least the previous crop year for all optional units that you will report in the current crop year (You may be required to produce the records for all optional units for the previous crop year); and
(4) You have records of marketed or stored production from each optional unit maintained in such a manner that permits us to verify the production from each optional unit, or the production from each optional unit is kept separate until loss adjustment is completed by us.
(c) Each optional unit must meet one or more of the following, unless otherwise specified in the Crop Provisions or allowed by written agreement:
(1) Optional units may be established if each optional unit is located in a separate section where the boundaries are readily discernible:
(i) In the absence of sections, we may consider parcels of land legally identified by other methods of measure, such as Spanish grants, provided the boundaries are readily discernible, if such parcels can be considered as the equivalent of sections for unit purposes in accordance with FCIC procedures; or
(ii) In the absence of sections as described in section 34(c)(1) or other methods of measure used to establish section equivalents as described in section 34(c)(1)(i), optional units may be established if each optional unit is located in a separate FSA farm number in accordance with FCIC procedures;
(2) In addition to, or instead of, establishing optional units by section, section equivalent or FSA farm number, optional units may be based on irrigated and non-irrigated acreage. To qualify as separate irrigated and non-irrigated optional units, the non-irrigated acreage may not continue into the irrigated acreage in the same rows or planting pattern. The irrigated acreage may not extend beyond the point at which the irrigation system can deliver the quantity of water needed to produce the yield on which the guarantee is based, except the corners of a field in which a center-pivot irrigation system is used may be considered as irrigated acreage if the corners of a field in which a center-pivot irrigation system is used do not qualify as a separate non-irrigated optional unit. In this case, production from both practices will be used to determine your approved yield; and
(3) In addition to, or instead of, establishing optional units by section, section equivalent or FSA farm number, or irrigated and non-irrigated acreage, separate optional units may be established for acreage of the insured crop grown and insured under an organic farming practice. Certified organic, transitional and buffer zone acreages do not individually qualify as separate units. (See section 37 for additional provisions regarding acreage insured under an organic farming practice).
(d) Optional units are not available for crops insured under a Catastrophic Risk Protection Endorsement.
(e) If you do not comply fully with the provisions in this section, we will combine all optional units that are not in compliance with these provisions into the basic unit from which they were formed. We will combine the optional units at any time we discover that you have failed to comply with these provisions. If failure to comply with these provisions is determined by us to be inadvertent, and the optional units are combined into a basic unit, that portion of the additional premium paid for the optional units that have been combined will be refunded to you for the units combined.
(a) If you are eligible to receive an indemnity and are also eligible to receive benefits for the same loss under any other USDA program, you may receive benefits under both programs, unless specifically limited by the crop insurance contract or by law.
(b) Any amount received for the same loss from any USDA program, in addition to the crop insurance payment, will not exceed the difference between the crop insurance payment and the actual amount of the loss, unless otherwise provided by law. The amount of the actual loss is the difference between the total value of the insured crop before the loss and the total value of the insured crop after the loss.
(1) For crops for which revenue protection is not available:
(i) If you have an approved yield, the total value of the crop before the loss is your approved yield times the highest price election for the crop; and
(ii) If you have an approved yield, the total value of the crop after the loss is your production to count times the highest price election for the crop; or
(iii) If you have an amount of insurance, the total value of the crop before the loss is the highest amount of insurance available for the crop; and
(iv) If you have an amount of insurance, the total value of the crop after the loss is your production to count times the price contained in the Crop Provisions for valuing production to count.
(2) For crops for which revenue protection is available and:
(i) You elect yield protection:
(A) The total value of the crop before the loss is your approved yield times the applicable projected price (at the 100 percent price level) for the crop; and
(B) The total value of the crop after the loss is your production to count times the applicable projected price (at the 100 percent price level) for the crop; or
(ii) You elect revenue protection:
(A) The total value of the crop before the loss is your approved yield times the higher of the applicable projected price or harvest price for the crop (If you have elected the harvest price exclusion, the applicable projected price for the crop will be used); and
(B) The total value of the crop after the loss is your production to count times the harvest price for the crop.
(c) FSA or another USDA agency, as applicable, will determine and pay the additional amount due you for any applicable USDA program, after first considering the amount of any crop insurance indemnity.
If provided in the actuarial documents, you may elect the following measures to increase your approved yield:
(a) Adjustments to actual yields within a database:
(1) You may exclude and replace one or more actual yields, on an individual actual yield basis, that due to an insurable cause of loss, are less than 60 percent of the applicable transitional yield.
(i) Each election made in section 36(a)(1) must be made on or before the production reporting date for the insured crop and each such election will remain in effect for succeeding crop years unless canceled by the production reporting date for the succeeding crop year. If you cancel an election, the actual yield will be used in the database. For example, if you elected to substitute yields in your database for the 2020 and 2021 crop year, for any subsequent crop year, you can elect to cancel the substitution for either or both crop years.
(ii) Each excluded actual yield will be replaced with a yield equal to 60 percent of the applicable transitional yield for the crop year in which the yield is being replaced, unless you qualify as a beginning farmer or rancher, or veteran farmer or rancher, in which case the excluded actual yield will be replaced with a yield equal to 80 percent of the applicable transitional yield for the crop year in which the yield is being replaced. (For example, if you elect to exclude a 2020 crop year actual yield, the transitional yield in effect for the 2020 crop year in the county will be used. If you also elect to exclude a 2021 crop year actual yield, the transitional yield in effect for the 2021 crop year in the county will be used). The replacement yields will be used in the same manner as actual yields for the purpose of calculating the approved yield.
(iii) Once you have elected to exclude an actual yield from the database, the replacement yield will remain in effect until such time as that crop year is no longer included in the database unless this election is canceled in accordance with section 36(a)(1)(i).
(iv) Although your approved yield will be used to determine your amount of premium owed, the premium rate will be increased to cover the additional risk associated with the substitution of higher yields.
(2) You may exclude any actual yield for any crop year when FCIC determines for a county, or its contiguous counties, the per planted acre yield was at least 50 percent below the simple average of the per planted acre yield for the crop in the county for the previous 10 consecutive crop years.
(3) You may replace actual yields determined using your post-quality production amounts with actual yields determined using your pre-quality production amounts for previous crop years on an individual actual yield basis.
(i) Each election made in section 36(a)(3) must be made on or before the sales closing date for the insured crop and will remain in effect, unless canceled by the sales closing date for the succeeding crop year.
(ii) In order to replace post-quality actual yields for previous crop years, you must have filed a notice of loss due to an insured cause of loss for the crop year to be eligible.
(iii) Once the pre-quality actual yield replaces the post-quality actual yield, the pre-quality actual yield will remain in effect until such time as that crop year is no longer included in the database, unless this election is canceled in accordance with section 36(a)(3)(i).
(iv) Although your approved yield will be used to determine your amount of premium owed, the premium rate will be increased to cover the additional risk associated with the replacement of higher pre-quality reduction based actual yields.
(b) You may make adjustments to your approved yield by limiting a reduction to the approved APH yield to a maximum decline of 10 percent of the previous crop year’s approved APH yield when such reduction is due to a decline in production resulting from a natural disaster or other insurable loss, as provided in FCIC procedures.
(a) In accordance with section 8(b)(2), insurance will not be provided for any crop grown using an organic farming practice, unless the information needed to determine a premium rate for an organic farming practice is specified on the actuarial table, or insurance is allowed by a written agreement.
(b) If insurance is provided for an organic farming practice as specified in section 37(a), only the following acreage will be insured under such practice:
(1) Certified organic acreage;
(2) Transitional acreage being converted to certified organic acreage in accordance with an organic plan; and
(3) Buffer zone acreage.
(c) You must provide the following organic records, as applicable:
(1) By the acreage reporting date, except as allowed by section 37(c)(2), you must have:
(i) For certified organic acreage, a written certification in effect from a certifying agent indicating the name of the entity certified, effective date of certification, certificate number, types of commodities certified, and name and address of the certifying agent (A certificate issued to a tenant may be used to qualify a landlord or other similar arrangement).
(ii) For transitional acreage, a certificate as described in section 37(c)(1)(i), or written documentation from a certifying agent indicating an organic plan is in effect for the acreage.
(iii) For certified organic and transitional acreage, records from the certifying agent showing the specific location of each field of certified organic, transitional, buffer zone, and acreage not maintained under organic management.
(2) If you do not meet the requirements in section 37(c)(1)(i) or (ii), you must provide documentation that you have requested, in writing, your written certification or organic plan by the acreage reporting date.
(i) Your certificate or plan must be in effect prior to the earlier of the end of the insurance period or when coverage ends as provided in section 11(b).
(ii) Your acreage will remain insured under the practice you reported on the acreage reporting date unless you have a loss. If you have a loss and do not have a certificate or plan in place at the time the claim is finalized in accordance with the applicable policy provisions, then your acreage will be insured under the practice for which it qualifies.
(d) If you claim a loss on any acreage insured under an organic farming practice, you must provide us with copies of the records required in section 37(c).
(e) If any acreage qualifies as certified organic or transitional acreage on the date you report such acreage, and such certification is subsequently revoked or suspended by the certifying agent, or the certifying agent does not consider the acreage as transitional acreage for the remainder of the crop year, that acreage will remain insured under the reported practice for which it qualified at the time the acreage was reported. Any loss due to failure to comply with organic standards will be considered an uninsured cause of loss.
(f) Contamination by application or drift of prohibited substances onto land on which crops are grown using organic farming practices will not be an insured peril on any certified organic, transitional or buffer zone acreage.
(g) In addition to the provisions contained in section 17(f), prevented planting coverage will not be provided for any acreage based on an organic farming practice in excess of the number of acres that will be grown under an organic farming practice and shown as such in the records required in section 37(c).
(h) In lieu of the provisions contained in section 17(f)(1) that specify prevented planting acreage within a field that contains planted acreage will be considered to be acreage of the same practice that is planted in the field, prevented planting acreage will be considered as organic practice acreage if it is identified as certified organic, transitional, or buffer zone acreage in the organic plan.
(a) You must notify us and complete the marketing certification if you intend to direct market any portion of the crop, or if acceptable verifiable records are required and will not be available. It is your responsibility to assure you meet all the notification and completion requirements to be properly identified as in compliance with the provisions specified in this section.
(b) Notice and certification provisions:
(1) Provide us notice and complete a marketing certification by the acreage reporting date when any portion of the crop will be direct marketed, or if acceptable verifiable records are required and will not be available. If your marketing plans change after the acreage reporting date, then you must provide notice no later than 15 days prior to harvest of the crop. The notice may be made by telephone or in person. If a marketing certification is required, it must be completed in writing within 15 days of the initial notice.
(2) If you fail to notify us timely and complete the marketing certification in accordance with these provisions and if you do not have acceptable verifiable production records to support the information you certified on your production report, you will receive an assigned yield in accordance with section 3(g).
(3) We may determine that the marketing certification is not required for your crop based on FCIC procedures.
(4) Appraisals prior to harvest may be conducted for production reporting purposes to be used in conjunction with your acceptable production records.
(i) If we determine an appraisal is necessary, we must notify you.
(ii) If you request an appraisal, you must notify us at least 15 days prior to harvest.
(5) Appraisals conducted for production reporting purposes may not be applicable for establishing total production to count under section 15 when the appraisal was conducted prior to our receipt of a notice of loss.
§ 457.9 Appropriation contingency.
Notwithstanding the cancellation date stated in the policy, if there are insufficient funds appropriated by the Congress to deliver the crop insurance program, the policy will automatically terminate without liability.
§§ 457.10-457.100 [Reserved]
§ 457.101 Small grains crop insurance provisions.
The Small Grains Crop Insurance Provisions for the 2023 and succeeding crop years for crops with a contract change date on or after November 30, 2022, and for the 2024 and succeeding crop years with a contract change date prior to November 30, 2022, are as follows:
Adequate stand. A population of live plants per unit of acreage which will produce at least the yield used to establish your production guarantee.
Harvest. Combining or threshing the insured crop for grain or cutting for hay or silage on any acreage. A crop which is swathed prior to combining is not considered harvested.
Initially planted. The first occurrence of planting the insured crop on insurable acreage for the crop year.
Khorasan. The common name for a variety of wheat (Triticum turanicum) that is marketed under trademarks such as Kamut. Khorasan is considered spring wheat for the purposes of this policy.
Latest final planting date. (1) The final planting date for the spring type in all counties for which the Special Provisions designate a spring type only;
(2) The final planting date for the winter type in all counties for which the Special Provisions designate a winter type only; or
(3) The final planting date for the spring type in all counties for which the Special Provisions designate both spring and winter types.
Local market price. The cash grain price per bushel for the applicable quality level indicated below and offered by buyers in the area in which you normally market the insured crop. The local market price will reflect the maximum limits of quality deficiencies allowable for the applicable quality level indicated below. Factors not associated with the specified quality levels, including but not limited to protein, oil or moisture content, or milling quality will not be considered.
(1) U.S. No. 2 for Wheat (subclass hard amber durum for durum wheat and subclass northern spring for hard red spring wheat), except Khorasan; barley (including hull-less barley); oats (including hull-less oats); rye; and flax.
(2) The quality factor levels required for durum wheat to grade U.S. No. 2 for Khorasan.
(3) No. 2 grade buckwheat determined in accordance with the applicable state grading standards.
Nurse crop (companion crop). A crop planted into the same acreage as another crop, that is intended to be harvested separately, and which is planted to improve growing conditions for the crop with which it is grown.
Planted acreage. In addition to the definition contained in the Basic Provisions, except for flax, land on which seed is initially spread onto the soil surface by any method and subsequently is mechanically incorporated into the soil in a timely manner and at the proper depth will be considered planted. Flax seed must initially be planted in rows to be considered planted, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Prevented planting. As defined in the Basic Provisions, except that the references to “final planting date” contained in the definition in the Basic Provisions are replaced with the “latest final planting date.”
Small grains. Wheat, including only common wheat (Triticum aestivum), club wheat (T. compactum), durum wheat (T. durum) and Khorasan (T. turanicum); barley (Hordeum vulgare), including hull-less barley and excluding black barley; oats (Avena sativa, and A. byzantina), and hull-less oats (A. Nuda); rye (Secale cereale); flax (Linum usitatissimum); and buckwheat (Fagopyrum esculentum) or as otherwise specified in the actuarial documents.
Swathed. Severance of the stem and grain head from the ground without removal of the seed from the head and placing into a windrow.
(a) In addition to enterprise units provided in section 34(a) of the Basic Provisions, for wheat only, you may elect separate enterprise units by type, as provided in this section, if allowed by the actuarial documents. If you elect enterprise units by type, you may not elect enterprise or optional units by irrigation practices.
(1) You may elect separate enterprise units by type unless otherwise specified in the Special Provisions. For example, if you have winter and spring types, you may elect one enterprise unit for the spring type or one enterprise unit for the winter type, or separate enterprise units for both types. Any acreage which is not reported and insured as an enterprise unit will be insured as basic or optional units, if requirements are met. For example, if you only have winter and spring types, you may have an enterprise unit for the winter type acreage and basic or optional units for the spring type acreage.
(2) You must separately meet the requirements in section 34(a)(4) of the Basic Provisions for each enterprise unit.
(3) If you elected separate enterprise units for multiple types and we discover enterprise unit qualifications are not separately met for all types in which you elected an enterprise unit and such discovery is made:
(i) On or before the acreage reporting date, you may elect to insure:
(A) All types in which you elected an enterprise unit for meeting the requirements in section 34(a)(4) as separate enterprise units, and basic or optional units for any acreage that is not reported and insured as an enterprise unit, whichever you report on your acreage report and for which you qualify;
(B) One enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4); or
(C) Basic or optional units for all acreage of the crop in the county, whichever you report on your acreage report and for which you qualify; or
(ii) At any time after the acreage reporting date, your unit structure will be one enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4). Otherwise, we will assign the basic unit structure for all acreage of the crop in the county.
(4) If you elected an enterprise unit for only one type and we discover you do not qualify for an enterprise unit for that type and such discovery is made:
(i) On or before the acreage reporting date, your unit division for all acreage of the crop in the county will be based on basic or optional units, whichever you report on your acreage report and for which you qualify; or
(ii) At any time after the acreage reporting date, we will assign the basic unit structure for all acreage of the crop in the county.
(b) In addition to, or instead of, establishing optional units as provided in section 34(c) of the Basic Provisions, for wheat only, separate optional units may be established for each wheat type (designated in actuarial documents and including any type insured by written agreement) if each optional unit contains only initially-planted acreage of the type.
In addition to the requirements of section 3 of the Basic Provisions:
(a) Revenue protection is not available for your flax or buckwheat. Therefore, if you elect to insure such crops by the sales closing date, they will only be protected against a loss in yield.
(b) Revenue protection is available for barley, oats, rye, and wheat. Therefore, if you elect to insure your barley, oats, rye, or wheat:
(1) You must elect to insure your barley, oats, rye, or wheat with either revenue protection or yield protection by the sales closing date; and
(2) In counties with both winter and spring sales closing dates for the insured crop (excluding counties that have a spring sales closing date and a winter sales closing date only applicable to the Winter Coverage Endorsement):
(i) If you do not have any insurable winter-planted acreage of the insured crop, you may change your coverage level, or your percentage of projected price (if you have yield protection), or elect revenue protection or yield protection, until the spring sales closing date; or
(ii) If you have any insurable winter-planted acreage of the insured crop, you may not change your coverage level, or your percentage of projected price (if you have yield protection), or elect revenue protection or yield protection, after the winter sales closing date. Winter-planted acreage of the insured crop must be reported and insured if it meets the requirements in section 6.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date for counties with a March 15 cancellation date and June 30 preceding the cancellation date for all other counties.
The cancellation and termination dates are as follows, unless otherwise specified in the actuarial documents:
| Crop, state and county | Cancellation date | Termination date |
|---|---|---|
| Wheat: | ||
| All Colorado counties except Alamosa, Archuleta, Conejos, Costilla, Custer, Delta, Dolores, Eagle, Garfield, Grand, La Plata, Mesa, Moffat, Montezuma, Montrose, Ouray, Pitkin, Rio Blanco, Rio Grande, Routt, Saguache, and San Miguel; all Iowa counties except Plymouth, Cherokee, Buena Vista, Pocahontas, Humboldt, Wright, Franklin, Butler, Black Hawk, Buchanan, Delaware, Dubuque and all Iowa counties north thereof; all Nebraska counties except Box Butte, Dawes, and Sheridan; all Wisconsin counties except Buffalo, Trempealeau, Jackson, Wood, Portage, Waupaca, Outagamie, Brown, Kewaunee and all Wisconsin counties north thereof; all other States except Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New York, North Dakota, Oregon, Rhode Island, South Dakota, Utah, Vermont, Washington, and Wyoming | September 30 | September 30. |
| Del Norte, Humboldt, Lassen, Modoc, Plumas, Shasta, Siskiyou and Trinity Counties, California; Archuleta, Custer, Delta, Dolores, Eagle, Garfield, Grand, La Plata, Mesa, Moffat, Montezuma, Montrose, Ouray, Pitkin, Rio Blanco, Routt, and San Miguel Counties, Colorado; Connecticut; Idaho; Plymouth, Cherokee, Buena Vista, Pocahontas, Humboldt, Wright, Franklin, Butler, Black Hawk, Buchanan, Delaware, and Dubuque Counties, Iowa, and all Iowa counties north thereof; Massachusetts; all Montana counties except Daniels, Roosevelt, Sheridan, and Valley; Box Butte, Dawes, and Sheridan Counties, Nebraska; New York; Oregon; Rhode Island; all South Dakota counties except Corson, Walworth, Edmunds, Faulk, Spink, Beadle, Kingsbury, Miner, McCook, Minnehaha and all South Dakota counties north and east thereof; Washington; Buffalo, Trempealeau, Jackson, Wood, Portage, Waupaca, Outagamie, Brown and Kewaunee Counties, Wisconsin, and all Wisconsin counties north thereof; and all Wyoming counties except Big Horn, Fremont, Hot Springs, Park, and Washakie | September 30 | November 30. |
| Arizona; all California counties except Del Norte, Humboldt, Lassen, Modoc, Plumas, Shasta, Siskiyou and Trinity; Nevada; and Utah | October 31 | November 30. |
| Alaska; Alamosa, Conejos, Costilla, Rio Grande, and Saguache Counties, Colorado; Maine; Minnesota; Daniels, Roosevelt, Sheridan, and Valley Counties, Montana; New Hampshire; North Dakota; Corson, Walworth, Edmunds, Faulk, Spink, Beadle, Kingsbury, Miner, McCook, and Minnehaha Counties, South Dakota, and all South Dakota counties north and east thereof; Vermont; and Big Horn, Fremont, Hot Springs, Park, and Washakie Counties, Wyoming | March 15 | March 15. |
| Barley: | ||
| All New Mexico counties except Taos; Texas, Oklahoma, Missouri, Illinois, Indiana, Ohio, Pennsylvania, New Jersey and all states south and east thereof | September 30 | September 30. |
| Kit Carson, Lincoln, Elbert, El Paso, Pueblo and Las Animas Counties, Colorado, and all Colorado counties south and east thereof; Connecticut; Kansas; Massachusetts; New York; and Rhode Island | September 30 | November 30. |
| Arizona; all California counties except Del Norte, Humboldt, Lassen, Modoc, Plumas, Shasta, Siskiyou and Trinity; Clark, Humboldt, Nye and Pershing Counties, Nevada; and Box Elder, Millard and Utah Counties, Utah | October 31 | November 30. |
| Del Norte, Humboldt, Lassen, Modoc, Plumas, Shasta, Siskiyou and Trinity Counties, California; All Colorado counties except Kit Carson, Lincoln, Elbert, El Paso, Pueblo and Las Animas, and all Colorado counties south and east thereof; all Nevada counties except Clark, Humboldt, Nye and Pershing; Taos County, New Mexico; all Utah counties except Box Elder, Millard and Utah; and all other states except Arizona, and (except) Texas, Oklahoma, Missouri, Illinois, Indiana, Ohio, Pennsylvania, New Jersey and all states south and east thereof | March 15 | March 15. |
| Oats: | ||
| Alabama; Arkansas; Florida; Georgia; Louisiana; Mississippi; All New Mexico counties except Taos County; North Carolina; Oklahoma; South Carolina; Tennessee; Texas; and Patrick, Franklin, Pittsylvania, Campbell, Appomattox, Fluvanna, Buckingham, Louisa, Spotsylvania, Caroline, Essex, and Westmoreland Counties, Virginia, and all Virginia counties east thereof | September 30 | September 30. |
| Arizona; All California counties except Del Norte, Humboldt, Lassen, Modoc, Plumas, Shasta, Siskiyou and Trinity | October 31 | October 31. |
| Del Norte, Humbolt, Lassen, Modoc, Plumas, Shasta, Siskiyou, and Trinity Counties, California; Taos County, New Mexico; all Virginia counties except Patrick, Franklin, Pittsylvania, Campbell, Attomattox, Fluvanna, Buckingham, Louisa, Spotsylvania, Caroline, Essex, and Westmoreland, and all Virginia counties east thereof; and all other states except Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas | March 15 | March 15. |
| Rye: | ||
| All states | September 30 | September 30. |
| Flax: | ||
| All states | March 15 | March 15. |
| Buckwheat: | ||
| All states | March 15 | March 15. |
(a) The crop insured will be each small grain you elect to insure, that is grown in the county on insurable acreage, and for which premium rates are provided by the actuarial documents:
(1) In which you have a share;
(2) That is planted for harvest as grain (a grain mixture in which barley or oats is the predominate grain may also be insured if allowed by the Barley or Oat Special Provisions, or if a written agreement allows insurance for such mixture. The production from such mixture will be considered as the predominate grain on a weight basis); and
(3) That is not, unless insurance is allowed by a written agreement:
(i) Interplanted with another crop except as allowed in section 6(a)(2);
(ii) Planted into an established grass or legume; or
(iii) Planted as a nurse crop, unless planted as a nurse crop for new forage seeding, but only if seeded at a normal rate and intended for harvest as grain.
(b) Buckwheat will be insured only if it is produced under a contract with a business enterprise equipped with facilities appropriate to handle and store buckwheat production. The contract must be executed by you and the business enterprise, in effect for the crop year, and a copy provided to us no later than the acreage reporting date. To be considered a contract, the executed document must contain:
(1) A requirement that you plant, grow and deliver buckwheat to the business enterprise;
(2) The amount of production that will be accepted or a statement that all production from a specified number of acres will be accepted;
(3) The price to be paid for the contracted production or a method to determine such price; and
(4) Other such terms that establish the obligations of each party to the contract.
(c) If you anticipate destroying any acreage prior to harvest you:
(1) May report all planted acreage when you report your acreage for the crop year and specify any acreage to be destroyed as uninsurable acreage (By doing so, no coverage will be considered to have attached on the specified acreage and no premium will be due for such acreage. If you do not destroy such acreage, you will be subject to the under-reporting provisions contained in section 6 of the Basic Provisions); or
(2) May report all planted acreage as insurable when you report your acreage for the crop year. Premium will be due on all the acreage except as set forth herein. If the Special Provisions allow a reduced premium amount for acreage intentionally destroyed prior to harvest, you may qualify for such reduction only if you notify us in writing on or before the date designated in the Special Provisions of the intended destruction, and do not claim an indemnity on the acreage. No premium reduction will be allowed if the required notice is not given or if you claim an indemnity for the acreage. Upon receiving timely notice, insurance coverage on the acreage you do not intend to harvest will cease and we will revise your acreage report to indicate the applicable reduction in premium. If you do not destroy the crop as intended, you will be subject to the under-reporting provisions contained in section 6 of the Basic Provisions.
(d) In counties for which the actuarial documents provide premium rates for the Wheat or Barley Winter Coverage Endorsement (7 CFR 457.102), coverage is available for wheat or barley damaged between the time coverage begins and the spring final planting date. Coverage under the endorsement is effective only if you qualify under the terms of the endorsement and you execute the endorsement by the sales closing date.
In accordance with section 11 of the Basic Provisions, and subject to any provisions provided by the Wheat or Barley Winter Coverage Endorsement (if elected by you):
(a) Insurance attaches on each unit or part thereof on the later of the date we accept your application or the date the insured crop is planted.
(1) For rye, flax, and buckwheat, the following limitations apply:
(i) The acreage must be planted on or before the final planting date designated in the Special Provisions for the insured crop except as allowed in section 12 of these Crop Provisions and section 16 of the Basic Provisions.
(ii) Any acreage of the insured crop damaged before the final planting date, to the extent that producers in the surrounding area would not normally further care for the crop, must be replanted unless we agree that it is not practical to replant.
(2) For barley, oat, and wheat, the following limitations apply:
(i) The acreage must be planted on or before the final planting date designated in the Special Provisions for the type (winter or spring) except as allowed in section 12 of these Crop Provisions and section 16 of the Basic Provisions.
(ii) Whenever the Special Provisions designate only a winter type, any acreage of winter barley, oats, or wheat damaged before such final planting date, to the extent that producers in the area would normally not further care for the crop, must be replanted to a winter type of the insured crop unless we agree that replanting is not practical.
(iii) Whenever the Special Provisions designate both winter and spring types:
(A) Any winter barley, oat, or wheat acreage that is damaged before the spring final planting date, to the extent that producers in the area would normally not further care for the crop, must be replanted to a winter type of the insured crop to maintain insurance based on the winter type unless we agree that replanting is not practical. If it is not practical to replant to the winter type of barley, oats, or wheat, but is practical to replant to a spring type, you must replant to a spring type to keep your insurance based on the winter type in force.
(B) Any winter barley, oat, or wheat acreage that is replanted to a spring type of the same crop when it was practical to replant the winter type will be insured as the spring type and the production guarantee, premium, projected price, and harvest price applicable to the spring type will be used. In this case, the acreage will be considered to be initially planted to the spring type.
(C) Notwithstanding sections 7(a)(2)(iii)(A) and (B), if you have elected coverage under a barley or wheat Winter Coverage Endorsement (if available in the county), insurance will be in accordance with the endorsement.
(D) Any winter barley, oat, or wheat acreage planted after the end of the late planting period will not be insured unless you request such coverage on or before the spring sales closing date, and we inspect and determine that the acreage has an adequate stand in the spring to produce the yield used to determine your production guarantee. However, if we fail to inspect the acreage by the spring final planting date, insurance will attach as specified in section 7(a)(2)(iii)(D)(3).
(1) Your request for coverage must include the location and number of acres of winter barley, oats, or wheat.
(2) The winter barley, oats, or wheat will be insured as a spring type for the purpose of the production guarantee, premium, projected price, and harvest price, if applicable.
(3) Insurance will attach to such acreage on the date we determine an adequate stand exists or on the spring final planting date if we do not determine adequacy of the stand by the spring final planting date.
(iv) Whenever the Special Provisions designate a spring type, any spring barley, oat, or wheat acreage damaged before such final planting date, to the extent that producers in the area would normally not further care for the crop, must be replanted to a spring type of the insured crop unless we agree that replanting is not practical.
(v) Whenever the Special Provisions designate only a spring type, any winter barley, oat, or wheat acreage will not be insured unless you request such coverage on or before the spring sales closing date, and we inspect and give written confirmation that the acreage has an adequate stand in the spring to produce the yield used to determine your production guarantee. However, if we fail to inspect the acreage by the spring final planting date, insurance will attach as specified in section 7(a)(2)(v)(C).
(A) Your request for coverage must include the location and number of acres of winter barley, oats, or wheat.
(B) The winter barley, oats, or wheat will be insured as a spring type for the purpose of the production guarantee, premium, projected price, and harvest price, if applicable.
(C) Insurance will attach to such acreage on the date we determine an adequate stand exists or on the spring final planting date if we do not determine adequacy of the stand by the spring final planting date.
(D) Any such winter barley, oats, or wheat acreage that is damaged after it is accepted for insurance but before the spring final planting date, to the extent that producers in the area would normally not further care for the crop, must be replanted to a spring type of the insured crop unless we agree it is not practical to replant.
(E) If winter-planted acreage is not to be insured it must be recorded on the acreage report as uninsured winter-planted acreage.
(b) The calendar date for the end of the insurance period is the following applicable date:
(1) September 25 in Alaska;
(2) July 31 in Alabama, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, New Jersey, North Carolina, South Carolina and Tennessee; or
(3) October 31 in all other states.
In addition to the provisions under section 12 of the Basic Provisions, any loss covered by this policy must occur within the insurance period.
The specific causes of loss for small grains are:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage allowed because of insufficient or improper application of pest control measures;
(d) Plant disease, but not damage allowed because of insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss specified in sections 8(a) through (g) that also occurs during the insurance period; or
(i) For revenue protection, a change in the harvest price from the projected price, unless FCIC can prove the price change was the direct result of an uninsured cause of loss specified in section 12(a) of the Basic Provisions.
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that limit the amount of a replant payment to the actual cost of replanting, the amount of any replanting payment will be determined in accordance with these crop provisions;
(2) You must comply with all requirements regarding replanting payments contained in section 13 of the Basic Provisions (except as allowed in section 9(a)(1)) and in any Winter Coverage Endorsement for which you are eligible and which you have elected;
(3) The insured crop must be damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage;
(4) The acreage must have been initially planted to a spring type of the insured crop in those counties with only a spring type;
(5) Damage must occur after the winter final planting date in those counties where both a winter and spring final planting date are designated (If the Special Provisions provide more than one winter final planting date, the winter final planting date applicable to policies with the Wheat or Barley Winter Coverage Endorsement will be used for this purpose, regardless of whether or not the endorsement is actually in effect.); and
(6) The replanted crop must be seeded at a rate sufficient to achieve a total (undamaged and new seeding) plant population that is considered appropriate by agricultural experts for the insured crop, type and practice.
(b) No replanting payment will be made for acreage initially planted to a winter type of the insured crop (including rye) in any county for which the Special Provisions contain only a winter type.
(c) Unless otherwise specified in the Special Provisions, the amount of the replanting payment per acre will be:
(1) The lesser of 20 percent of the production guarantee or the number of bushels for the applicable crop specified below:
(i) Two bushels for flax or buckwheat;
(ii) Four bushels for wheat; or
(iii) Five bushels for barley or oats;
(2) Multiplied by:
(i) Your price election for flax or buckwheat; or
(ii) Your projected price for barley, oats, or wheat; and
(3) Multiplied by your share.
(d) When the crop is replanted using a practice that is uninsurable for an original planting, the liability on the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
(e) Replanting payments will be calculated using your price election or your projected price, as applicable, and your production guarantee for the type that is replanted and insured. For example, if damaged spring wheat is replanted to durum wheat, your projected price applicable to durum wheat will be used to calculate any replanting payment that may be due. A revised acreage report will be required to reflect the replanted type. Notwithstanding the previous two sentences, the following will have a replanting payment based on your production guarantee and your price election or your projected price, as applicable, for the type initially planted:
(1) Any damaged winter type that is replanted to a spring type, but that retains insurance based on the winter type; and
(2) Any acreage replanted at a reduced seeding rate into a partially damaged stand of the insured crop.
Representative samples are required in accordance with section 14 of the Basic Provisions.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which acceptable records of production were not provided; or for any
(2) Basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the number of insured acres of each insured crop or type, as applicable by your respective:
(i) Yield protection guarantee (per acre) if you elected yield protection for barley, oats, rye, or wheat;
(ii) Production guarantee (per acre) and your price election for flax or buckwheat; or
(iii) Revenue protection guarantee (per acre) if you elected revenue protection for barley, oats, rye, or wheat;
(2) Totaling the results of section 11(b)(1)(i), (ii), or (iii), whichever is applicable;
(3) Multiplying the production to count of each insured crop or type, as applicable, by your respective:
(i) Projected price for barley, oats, rye, or wheat if you elected yield protection;
(ii) Price election for flax or buckwheat; or
(iii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 11(b)(3)(i), (ii), or (iii), whichever is applicable;
(5) Subtracting the result of section 11(b)(4) from the result of section 11(b)(2); and
(6) Multiplying the result of section 11(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of wheat in the unit with a production guarantee (per acre) of 45 bushels, your projected price is $7.10, your harvest price is $10.90, and your production to count is 2,000 bushels.
If you elected yield protection:
(1) 50 acres × (45-bushel production guarantee × $7.10 projected price) = $15,975.00 value of the production guarantee;
(2) Not applicable;
(3) 2,000-bushel production to count × $7.10 projected price = $14,200.00 value of the production to count;
(4) Not applicable;
(5) $15,975.00−$14,200.00 = $1,775.00; and
(6) $1,775.00 × 1.000 share = $1,775.00 indemnity; or
If you elected revenue protection:
(1) 50 acres × (45-bushel production guarantee × $10.90 harvest price) = $24,525.00 revenue protection guarantee;
(2) Not applicable;
(3) 2,000-bushel production to count × $10.90 harvest price = $21,800.00 value of the production to count;
(4) Not applicable;
(5) $24,525.00−$21,800.00 = $2,725.00; and
(6) $2,725.00 × 1.000 share = $2,725.00 indemnity.
(c) The total production to count (in bushels) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) For flax or buckwheat, and barley, oats, rye, or wheat under yield protection, not less than the production guarantee (per acre), and for barley, oats, rye, or wheat under revenue protection, not less than the amount of production that when multiplied by the harvest price equals the revenue protection guarantee (per acre) for acreage:
(A) Which is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide records of production that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with paragraph (d) of this section);
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature wheat, barley, oat, rye, and buckwheat production may be adjusted for excess moisture and quality deficiencies. Flax production may be adjusted for quality deficiencies only. If a moisture adjustment is applicable, it will be made prior to any adjustment for quality.
(1) Production will be reduced by .12 percent for each .1 percentage point of moisture in excess of:
(i) 13.5 percent for wheat;
(ii) 14.5 percent for barley;
(iii) 14.0 percent for oats;
(iv) 16.0 percent for rye and buckwheat; or
(v) As otherwise provided in the Special Provisions.
We may obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality, in accordance with the Official United States Standards for Grain including the definition of terms used in section 11(d), result in:
(A) Wheat, except Khorasan, not meeting the grade requirements for U.S. No. 4 (grades U.S. No. 5 or worse) because of test weight; total damaged kernels (heat-damaged kernels will not be considered to be damaged); shrunken or broken kernels; defects (foreign material and heat damage will not be considered to be defects); a musty, sour, or commercially objectionable foreign odor (except smut odor); or grading garlicky, light smutty, smutty, and ergoty;
(B) Barley, except hull-less barley, not meeting the grade requirements for U.S. No. 4 (grades U.S. No. 5 or worse) because of test weight; percentage of sound barley (heat-damaged kernels will be considered to be sound barley); damaged kernels (heat-damaged kernels will not be considered to be damaged); thin barley; black barley; a musty, sour, or commercially objectionable foreign odor (except smut or garlic odor); or grading blighted, smutty, garlicky, or ergoty;
(C) Oats, except hull-less oats, not meeting the grade requirements for U.S. No. 4 (grade U.S. sample grade) because of test weight; percentage of sound oats (heat-damaged kernels will be considered to be sound oats); a musty, sour, or commercially objectionable foreign odor (except smut or garlic odor); or grading smutty, thin, garlicky, or ergoty;
(D) Rye not meeting the grade requirements for U.S. No. 3 (grades U.S. No. 4 or worse) because of test weight; percent damaged kernels (heat-damaged kernels will not be considered to be damaged); thin rye; a musty, sour, or commercially objectionable foreign odor (except smut or garlic odor); or grading light smutty, smutty, light garlicky, garlicky, or ergoty;
(E) Flaxseed not meeting the grade requirements for U.S. No. 2 (grades U.S. sample grade) due to test weight; damaged kernels (heat-damaged kernels will not be considered to be damaged); or a musty, sour, or commercially objectionable foreign odor (except smut or garlic odor);
(ii) Deficiencies in the quality of buckwheat, determined in accordance with applicable state grading standards, result in it not meeting No. 3 grade requirements due to test weight; a musty, sour or commercially objectionable foreign odor (except smut or garlic odor); or grading garlicky, smutty, and ergoty if such grades are provided for by the applicable state grading standards;
(iii) Quality factors for Khorasan fall below the levels contained in the Official United States Standards for Grain that cause durum wheat to grade less than U.S. No. 4. For example, if durum wheat grades less than U.S. No. 4 when its test weight falls below 54.0 pounds per bushel, Khorasan would be eligible for quality adjustment if its test weight falls below 54.0 pounds per bushel. The same quality factors considered for quality adjustment of durum wheat will be applicable and determination of deficiencies will be made in accordance with the Federal Grain Inspection Service directive that establishes procedures for quality factor analysis of Khorasan seed. Quality adjustment discount factors for U.S. grades specified in the Special Provisions will also apply to Khorasan at the same levels applicable to durum wheat;
(iv) Quality factors for hull-less barley fall below the levels contained in the Official United States Standards for Grain that cause barley to grade less than U.S. No. 4. For example, if barley grades less than U.S. No. 4 when its test weight falls below 40.0 pounds per bushel, hull-less barley would be eligible for quality adjustment if its test weight falls below 40.0 pounds per bushel. The same quality factors considered for quality adjustment of barley will be applicable and determination of deficiencies will be made in accordance with the Federal Grain Inspection Service directive that establishes procedures for quality factor analysis of hull-less barley. Quality adjustment discount factors for U.S. grades specified in the Special Provisions will also apply to hull-less barley at the same levels applicable to barley;
(v) Quality factors for hull-less oats fall below the levels contained in the Official United States Standards for Grain that cause oats to grade less than U.S. No. 4. For example, if oats grade less than U.S. No. 4 when its test weight falls below 27.0 pounds per bushel, hull-less oats would be eligible for quality adjustment if the test weight falls below 27.0 pounds per bushel. The same quality factors considered for quality adjustment of oats will be applicable and determination of deficiencies will be made in accordance with the Federal Grain Inspection Service directive that establishes procedures for quality factor analysis of hull-less oats. Quality adjustment discount factors for U.S. grades specified in the Special Provisions will also apply to hull-less oats at the same levels applicable to oats; or
(vi) Substances or conditions are present, including mycotoxins, that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a cause of loss against which insurance is provided under these crop provisions;
(ii) All determinations of these deficiencies, substances, or conditions are made using samples of the production obtained by us or by a disinterested third party approved by us;
(iii) With regard to deficiencies in quality (except test weight, which may be determined by our loss adjustor), the samples are analyzed by:
(A) A grain grader licensed under the United States Grain Standards Act or the United States Warehouse Act;
(B) A grain grader licensed under State law and employed by a warehouse operator who has a commodity storage agreement with the Commodity Credit Corporation; or
(C) A grain grader not licensed under State law, but who is employed by a warehouse operator who has a commodity storage agreement with the Commodity Credit Corporation and is in compliance with State law regarding warehouses; and
(iv) With regard to substances or conditions injurious to human or animal health, the samples are analyzed by a laboratory approved by us.
(4) Small grain production that is eligible for quality adjustment, as specified in sections 11(d)(2) and (3), will be reduced by the quality adjustment factor calculated in accordance with the Special Provisions.
(e) Any production harvested from plants growing in the insured crop may be counted as production of the insured crop on a weight basis.
A late planting period is applicable to small grains, except to any barley or wheat acreage covered under the terms of the Wheat or Barley Winter Coverage Endorsement. Barley or wheat covered under the terms of the Winter Coverage Endorsement must be planted on or prior to the applicable final planting date specified in the Special Provisions. In counties having one winter final planting date for acreage covered under the Wheat or Barley Winter Coverage Endorsement and another winter final planting date for acreage not covered under the endorsement, the winter late planting period will begin after the final planting date for acreage not covered under the endorsement.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents. In counties for which the Special Provisions designate a spring type, your prevented planting production guarantee will be based on your approved yield for spring-planted acreage of the insured crop.
§ 457.102 Wheat or barley winter coverage endorsement.
1. In return for payment of the additional premium designated in the actuarial documents, this endorsement is attached to and made part of the Small Grains Crop Provisions subject to the terms and conditions described herein. 2. This endorsement is available only in counties for which the Special Provisions for the insured crop designate both a fall final planting date and a spring final planting date, and for which the actuarial documents provide a premium rate for this coverage. 3. You must have a Small Grains Crop Insurance Policy in force and elect to insure barley or wheat under that policy. 4. You must select this coverage, by crop, on your application for insurance. Failure to do so means you have rejected this coverage for both wheat and barley and this endorsement is void. 5. In addition to the requirements of section 34(b) of the Basic Provisions and section 2 of the Small Grains Crop Provisions, optional units may be established for barley if each optional unit contains only initially planted winter barley or only initially planted spring barley. 6. If you elect this endorsement for winter barley, the contract change, cancellation, and termination dates applicable to wheat in the county will be applicable to all your spring and winter barley. 7. Coverage under this endorsement begins on the later of the date we accept your application for coverage or on the fall final planting date designated in the Special Provisions. Coverage ends on the spring final planting date designated in the Special Provisions. 8. The provisions of section 14 of the Basic Provisions are amended to require that all notices of damage be provided to us by the spring final planting date designated in the Special Provisions. 9. All eligible acreage of each crop covered under this endorsement must be insured. 10. The amount of any indemnity paid under the terms of this endorsement will be subject to any reduction specified in the Basic Provisions for multiple crop benefits in the same crop year. 11. Whenever any winter wheat or barley is damaged during the insurance period and at least 20 acres or 20 percent of the insured planted acreage in the unit, whichever is less, does not have an adequate stand to produce at least 90 percent of the production guarantee for the acreage, you may, at your option, take one of the following actions: (a) Continue to care for the damaged crop. By doing so, coverage will continue under the terms of the Basic Provisions, the Small Grains Crop Insurance Provisions and this endorsement. (b) Replant the acreage to an appropriate variety of the insured crop, if it is practical, and receive a replanting payment in accordance with the terms of section 9 (Replanting Payments) of the Small Grains Crop Insurance Provisions. By doing so, coverage will continue under the terms of the Basic Provisions, the Small Grains Crop Insurance Provisions and this endorsement, and the production guarantee for winter wheat or barley will remain in effect. (c) Destroy the remaining crop on such acreage. By doing so, you agree to accept an appraised amount of production determined in accordance with section 11(c)(1) of the Small Grains Crop Insurance Provisions to count against the unit production guarantee. This amount will be considered production to count in determining any final indemnity on the unit and will be used to settle your claim as described in section 11 (Settlement of Claim) of the Small Grains Crop Insurance Provisions. You may use such acreage for any purpose, including planting and separately insuring any other crop if such insurance is available. If you elect to plant and elect to insure a spring type of the same crop (you must elect whether or not you want insurance on the spring type of the same crop at the time we release the winter type acreage), you must pay additional premium for the insurance. Such acreage will be insured in accordance with the policy provisions that are applicable to acreage that is initially planted to a spring type of the insured crop, and you must: (1) Plant the spring type in a manner which results in a clear and discernable break in the planting pattern at the boundary between it and any remaining acreage of the winter type; and (2) Store or market the production in a manner which permits us to verify the amount of spring type production separately from any winter type production. In the event you are unable to provide records of production that are acceptable to us, the spring type acreage will be considered to be a part of the original winter type unit. Whenever any winter wheat is damaged during the insurance period (see section 3, above), and at least 20 acres or 20 percent of the acreage in the unit, whichever is less, does not have an adequate stand to produce at least 90 percent of the production guarantee for the acreage, you may take any one of the following actions: (a) Destroy the remaining crop on such acreage. By doing so, you agree to accept an amount of production to count against the unit production guarantee equal to 70 percent of the production guarantee for the damaged acreage, or an appraisal determined in accordance with paragraph 11.(c)(1) of the Small Grains Crop Insurance Provisions (§ 457.101) if such an appraisal results in a greater amount of production. This amount will be considered production to count in determining any final indemnity on the unit and will be used to settle your claim as described in the provisions under section 11. (Settlement of Claim) of the Small Grains Crop Insurance Provisions (§ 457.101). You may use such acreage for any purpose, including planting and separately insuring any other crop. If you elect to utilize such acreage for the production of spring wheat, you must: (1) Plant the spring wheat in a manner which results in a clear and discernible break in the planting pattern at the boundary between it and any remaining winter wheat; and (2) Store or market the production from such acreage in a manner which permits us to verify the amount of spring wheat production separately from any winter wheat production. In the event you are unable to provide records of production that are acceptable to us, the spring wheat acreage will be considered to be a part of the original winter wheat unit. If you elected to insure the spring wheat acreage as a separate optional unit, any premium amount for such acreage will be considered earned and payable to us. (b) Continue to care for the damaged crop. By doing so, coverage will continue under the terms of the Common Crop Insurance Policy (§ 457.8), the Small Grains Crop Insurance Provisions (§ 457.101), and this Option. (c) Replant the acreage to an appropriate variety of wheat, if it is practical, and receive a replanting payment in accordance with the terms of section 9. (Replanting Payments) of the Small Grains Crop Provisions (§ 457.101). By doing so, coverage will continue under the terms of the Common Crop Insurance Policy (§ 457.8), the Small Grains Crop Insurance Provisions (§ 457.101), and this Option, and the production guarantee for winter wheat will remain in effect. Whenever any winter wheat is damaged during the insurance period and at least 20 acres or 20 percent of the acreage in the unit, whichever is less, does not have an adequate stand to produce at least 90 percent of the production guarantee for the acreage, you may, at your option, take one of the following actions: (a) Continue to care for the damaged crop. By doing so, coverage will continue under the terms of the Common Crop Insurance Policy (§ 457.8), the Small Grains Crop Insurance Provisions (§ 457.101), and this Option. (b) Replant the acreage to an appropriate variety of wheat, if it is practical, and receive a replanting payment in accordance with the terms of section 9. (Replanting Payments) of the Small Grains Crop Provisions (§ 457.101). By doing so, coverage will continue under the terms of the Common Crop Insurance Policy (§ 457.8), the Small Grains Crop Insurance Provisions (§ 457.101), and this Option, and the production guarantee for winter wheat will remain in effect. (c) Accept our appraisal of the crop on the damaged acreage as production to count against the production guarantee for the damaged acreage, destroy the remaining crop on such acreage, and be eligible for any indemnity due under the terms of the Common Crop Insurance Policy (§ 457.8) and the Small Grains Crop Provisions (§ 457.101). The appraisal will be considered production to count in determining any final indemnity on the unit and will be used to settle your claim as described in the provisions of section 11. (Settlement of Claim) of the Small Grains Crop Insurance Provisions (§ 457.101). You may use such acreage for any purpose, including planting and separately insuring any other crop. If you elect to utilize such acreage for the production of spring wheat, you must: (1) Plant the spring wheat in a manner which results in a clear and discernable break in the planting pattern at the boundary between it and any remaining winter wheat; and (2) Store or market the production from such acreage in a manner which permits us to verify the amount of spring wheat production separately from any winter wheat production. In the event you are unable to provide records of production that are acceptable to us, the spring wheat acreage will be considered to be a part of the original winter wheat unit. If you elected to insure the spring wheat acreage as a separate optional unit, any premium amount for such acreage will be considered earned and payable to us.
§ 457.103 [Reserved]
§ 457.104 Cotton crop insurance provisions.
The Cotton Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
Cotton. Varieties identified as American Upland Cotton.
Growth area. A geographic area designated by the Secretary of Agriculture for the purpose of reporting cotton prices.
Harvest. The removal of the seed cotton from the open cotton boll, or the severance of the open cotton boll from the stalk by either manual or mechanical means.
Mature cotton. Cotton that can be harvested either manually or mechanically.
Planted acreage. In addition to the definition contained in the Basic Provisions, cotton must be planted in rows, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement. The yield conversion factor normally applied to non-irrigated skip-row cotton acreage will not be used if the land between the rows of cotton is planted to any other spring planted crop.
Production guarantee (per acre). In lieu of the definition contained in the Basic Provisions, the number of pounds determined by multiplying the approved yield per acre by any applicable yield conversion factor for non-irrigated skip-row planting patterns, and multiplying the result by the coverage level percentage you elect.
Skip-row. A planting pattern that:
(1) Consists of alternating rows of cotton and fallow land or land planted to another crop the previous fall; and
(2) Qualifies as a skip-row planting pattern as defined by the Farm Service Agency (FSA) or a successor agency.
In addition to the requirements of section 3 of the Basic Provisions, you must elect to insure your cotton with either revenue protection or yield protection by the sales closing date.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State and county | Cancellation and termination dates |
|---|---|
| Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, Karnes, Goliad, Victoria, and Jackson Counties, Texas, and all Texas counties lying south thereof | January 31. |
| Alabama; Arizona; Arkansas; California; Florida; Georgia; Louisiana; Mississippi; Nevada; North Carolina; South Carolina; El Paso, Hudspeth, Culberson, Reeves, Loving, Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom Green, Concho, McCulloch, San Saba, Mills, Hamilton, Bosque, Johnson, Tarrant, Wise, and Cooke Counties, Texas, and all Texas counties lying south and east thereof to and including Terrell, Crocket, Sutton, Kimble, Gillespie, Blanco, Comal, Guadalupe, Gonzales, De Witt, Lavaca, Colorado, Wharton, Matagorda Counties, Texas. | February 28. |
| All other Texas counties and all other States | March 15. |
In accordance with section 8 of the Basic Provisions, the crop insured will be all the cotton lint, in the county for which premium rates are provided by the actuarial documents:
(a) In which you have a share; and
(b) That is not (unless allowed by the Special Provisions or by written agreement):
(1) Colored cotton lint;
(2) Planted into an established grass or legume; or
(3) Interplanted with another spring planted crop.
In addition to the provisions of section 9 of the Basic Provisions:
(a) The acreage insured will be only the land occupied by the rows of cotton when a skip row planting pattern is utilized; and
(b) Any acreage of the insured crop damaged before the final planting date, to the extent that a majority of the producers in the area would not normally further care for the crop, must be replanted unless we agree that it is not practical to replant.
(a) In lieu of section 11(b)(2) of the Basic Provisions, insurance will end upon the removal of the cotton from the field.
(b) In accordance with the provisions under section 11 of the Basic Provisions, the calendar date for the end of the insurance period is the date immediately following planting as follows:
(1) September 30 in Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, Karnes, Goliad, Victoria, and Jackson Counties, Texas, and all Texas counties lying south thereof;
(2) January 31 in Arizona, California, New Mexico, Oklahoma, and all other Texas counties; and
(3) December 31 in all other states.
In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss which occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control meaures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss specified in sections 8(a) through (g) that also occurs during the insurance period; or
(i) For revenue protection, a change in the harvest price from the projected price, unless FCIC can prove the price change was the direct result of an uninsured cause of loss specified in section 12(a) of the Basic Provisions.
(a) In addition to your duties under section 14 of the Basic Provisions, in the event of damage or loss, at our option or if required by FCIC in the Special Provisions, you may be required to leave the cotton stalks intact for our inspection. If applicable, the stalks must not be destroyed, and required samples must not be harvested, until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed and written notice of probable loss given to us.
(b) Representative samples are required in accordance with section 14 of the Basic Provisions.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the number of insured acres by your respective:
(i) Yield protection guarantee (per acre) if you elected yield protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue protection;
(2) Totaling the results of section 10(b)(1)(i) or 10(b)(1)(ii), whichever is applicable;
(3) Multiplying the production to count by your:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 10(b)(3)(i) or 10(b)(3)(ii), whichever is applicable;
(5) Subtracting the result of section 10(b)(4) from the result of section 10(b)(2); and
(6) Multiplying the result of section 10(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of cotton in the unit with a production guarantee (per acre) of 525 pounds, your projected price is $.65, your harvest price is $.70, and your production to count is 25,000 pounds.
If you elected yield protection:
(1) 50 acres × (525 pound production guarantee × $.65 projected price) = $17,062.50 value of the production guarantee
(3) 25,000 pound production to count × $.65 projected price = $16,250.00 value of production to count
(5) $17,062.50−$16,250.00 = $812.50
(6) $812.50 × 1.000 share = $813.00 indemnity; or
If you elected revenue protection:
(1) 50 acres × (525 pound production guarantee × $.70 harvest price) = $18,375.00 revenue protection guarantee
(3) 25,000 pound production to count × $.70 harvest price = $17,500.00 value of the production to count
(5) $18,375.00−$17,500.00 = $875.00
(6) $875.00 × 1.000 share = $875.00 indemnity.
(c) The total production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee and for revenue protection, not less than the amount of production that when multiplied by the harvest price equals the revenue protection guarantee (per acre) for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes;
(D) For which you fail to provide records of production that are acceptable to us; or
(E) If applicable, on which the cotton stalks are destroyed, in violation of section 9.
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production of white cotton may be adjusted for quality deficiencies in accordance with subsection 10(d)); and
(iv) Potential production on insured acreage you want to put to another use or you wish to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end if you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage, including any mature cotton retrieved from the ground.
(d) Mature white cotton may be adjusted for quality when production has been damaged by insured causes. Such production to count will be reduced if the price quotation for cotton of like quality (price quotation “A”) for the applicable growth area is less than 85 percent of price quotation “B.”
(1) Price B is defined as the Upland Cotton National Average Loan Rate determined by FSA, or as specified in the Special Provisions.
(2) Price A is defined as the loan value per pound for the bale determined in accordance with the FSA Schedule of Premiums and Discounts for the applicable crop year, or as specified in the Special Provisions.
(3) If eligible for adjustment, the amount of production to count will be determined by multiplying the number of pounds of such production by the factor derived from dividing price quotation “A” by 85 percent of price quotation “B.”
(e) Colored cotton lint will not be eligible for quality adjustment.
(a) In addition to the provisions contained in section 17 of the Basic Provisions, your prevented planting production guarantee will be based on your approved yield without adjustment for skip-row planting patterns.
(b) Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.105 Extra long staple cotton crop insurance provisions.
The Extra Long Staple Cotton Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
Cotton. Varieties identified as Extra Long Staple (ELS) cotton and American Upland (AUP) cotton if ELS cotton is destroyed by an insured cause and acreage is replanted to AUP cotton.
ELS cotton. Extra Long Staple cotton (also called Pima cotton, American-Egyptian cotton, and American Pima cotton).
Harvest. The removal of the seed cotton from the open cotton boll, or the severance of the open cotton boll from the stalk by either manual or mechanical means.
Mature ELS cotton. ELS cotton that can be harvested either manually or mechanically.
Planted acreage. In addition to the definition contained in the Basic Provisions, cotton must be planted in rows, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement. The yield conversion factor normally applied to non-irrigated skip-row cotton acreage will not be used if the land between the rows of cotton is planted to any other spring planted crop.
Production guarantee. The number of pounds determined by multiplying the approved yield per acre by any applicable yield conversion factor for non-irrigated skip-row planting patterns, and multiplying the result by the coverage level percentage you elect.
Replanting. Performing the cultural practices necessary to replace the ELS cotton seed, and replacing the seed with either ELS or AUP cotton seed in the insured acreage with the expectation of growing a successful crop.
Skip-row. A planting pattern that:
(1) Consists of alternating rows of cotton and fallow land or land planted to another crop the previous fall; and
(2) Qualifies as a skip-row planting pattern as defined by the Farm Service Agency (FSA) or a successor agency.
In addition to the requirements of section 3 of the Basic Provisions (§ 457.8) you may select only one price election for all the cotton in the county insured under this policy.
The contract change date is November 30 preceding the cancellation date (see the provisions of section 4 of the Basic Provisions).
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are:
| States | Cancellation and termination dates |
|---|---|
| New Mexico | March 15. |
| All other States | Feb. 28. |
In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the cotton lint in the county for which premium rates are provided by the actuarial documents:
(a) In which you have a share; and
(b) That is not (unless allowed by the Special Provisions or by a written agreement):
(1) Planted into an established grass or legume;
(2) Interplanted with another spring planted crop;
(3) Grown on acreage from which a hay crop was harvested in the same calendar year unless the acreage is irrigated; or
(4) Grown on acreage on which a small grain crop reached the heading stage in the same calendar year unless the acreage is irrigated or adequate measures are taken to terminate the small grain crop prior to heading and less than fifty percent (50%) of the small grain plants reach the heading stage.
In addition to the provisions of section 9 of the Basic Provisions (§ 457.8):
(a) The acreage insured will be only the land occupied by the rows of cotton when a skip row planting pattern is utilized; and
(b) Any acreage of the insured crop damaged before the final planting date, to the extent that a majority of producers in the area would not normally further care for the crop, must be replanted unless we agree that it is not practical to replant.
(a) In lieu of section 11(b)(b)(2) of the Basic Provisions, insurance will end upon the removal of the cotton from the field.
(b) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8), the calendar date for the end of the insurance period is January 31 immediately following planting.
In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss which occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of irrigation water supply, if applicable, due to an unavoidable cause of loss occurring within the insurance period.
(a) In addition to your duties under section 14 of the Basic Provisions, in the event of damage or loss:
(1) You must give us notice if you intend to replant any acreage originally planted to ELS cotton to AUP cotton.
(2) At our option or if required by FCIC in the Special Provisions, you may be required to leave the cotton stalks intact for our inspection. If applicable, the stalks must not be destroyed, and required samples must not be harvested, until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed and written notice of probable loss is given to us.
(b) Representative samples are required in accordance with section 14 of the Basic Provisions.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production:
(1) For any optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim on any unit by:
(1) Multiplying the insured acreage by the production guarantee;
(2) Subtracting from this the total production to count;
(3) Multiplying the remainder by your price election; and
(4) Multiplying this result by your share.
(c) The total production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes;
(D) For which you fail to provide records of production that are acceptable to us; or
(E) If applicable, on which the cotton stalks are destroyed, in violation of section 9.
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies in accordance with subsection:
(A) 10(d) and (e) if it is mature ELS cotton; or
(B) 10(f) if it is AUP cotton insured under these crop provisions); and
(iv) Potential production on insured acreage you want to put to another use or you wish to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement the insurance period for that acreage will end if you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provided sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count.); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage, including any mature cotton retrieved from the ground.
(d) Mature ELS cotton production may be adjusted for quality when production has been damaged by insured causes. Such production to count will be reduced if Price A is less than 85 percent of Price B.
(1) Price B is defined as the Extra Long Staple Cotton National Average Loan Rate determined by FSA, or as specified in the Special Provisions.
(2) Price A is defined as the loan value per pound for the bale determined in accordance with the FSA Schedule of Premiums and Discounts for the applicable crop year, or as specified in the Special Provisions.
(3) If eligible for quality adjustment, the amount of production to be counted will be determined by multiplying the number of pounds of such production by the factor derived from dividing Price A by 85 percent of Price B.
(e) For ELS cotton to be eligible for quality adjustment as shown in subsection 10(d), ginning must have been completed at a gin using roller equipment.
(f) Mature AUP cotton harvested or appraised from acreage originally planted to ELS cotton in the same growing season will be reduced by the factor obtained by dividing the price per pound for AUP cotton by the price per pound for ELS cotton. The prices used for AUP and ELS cotton will be calculated using the Upland Cotton National Average Loan Rate determined by FSA and the Extra Long Staple Cotton National Average Loan Rate determined by FSA, or as specified in the Special Provisions.
(a) A late planting period is applicable to ELS cotton, if allowed by the Special Provisions.
(b) If the Special Provisions do not provide for a late planting period, any ELS cotton that is planted after the final planting date will not be insured unless you were prevented from planting it by the final planting date. Such acreage will be insurable, and the production guarantee and premium for the acreage will be determined in accordance with section 16 of the Basic Provisions.
(a) In addition to the provisions contained in section 17 of the Basic Provisions, your prevented planting production guarantee will be based on your approved yield without adjustment for skip-row planting patterns.
(b) Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.106 Texas citrus tree crop insurance provisions.
The Texas Citrus Tree Crop Insurance Provisions for the 2011 and succeeding crop years are as follows:
Both FCIC and Reinsured Policies
Bud union. The location on the tree trunk where a bud from one tree variety is grafted onto root stock of another variety.
Crop – Specific groups of citrus fruit trees as listed in the Special Provisions.
Crop year. For the 1998 crop year only, a period of time that begins on June 1, 1997, and ends on November 20, 1998. For all other crop years, a period of time that begins on November 21 of the calendar year prior to the year the trees normally bloom, and ends on November 20 of the following calendar year. The crop year is designated by the year in which the insurance period ends.
Dehorning. Cutting all scaffold limbs to a length not longer than
Destroyed – Trees damaged to the extent that removal is necessary.
Excess precipitation. An amount of precipitation sufficient to directly damage the tree.
Excess wind. A natural movement of air that has sustained speeds in excess of 58 miles per hour recorded at the U.S. Weather Service reporting station nearest to the crop at the time of crop damage.
Freeze. The formation of ice in the cells of the trees caused by low air temperatures.
Good farming practices. The cultural practices generally in use in the county for the trees to have normal growth and vigor and recognized by the National Institute of Food and Agriculture as compatible with agronomic and weather conditions in the county.
Interplanted. Acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Irrigated practice. A method by which the normal growth and vigor of the insured trees is maintained by artificially applying adequate quantities of water during the growing season using the appropriate irrigation systems at the proper times.
Root stock. A root or a piece of a root of one tree variety onto which a bud from another tree variety is grafted.
Scaffold limbs. Major limbs attached directly to the trunk.
Set out. Transplanting the tree into the grove.
(a) A basic unit, as defined in section 1 of the Basic Provisions, will be divided into additional basic units by each citrus crop designated in the Special Provisions.
(b) Sections 34(b) (1), (3), and (4) of the Basic Provisions are not applicable.
(c) Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
(d) Instead of establishing optional units by section, section equivalent, or FSA farm serial number optional units may be established if each optional unit is located on non-contiguous land.
(a) In lieu of the requirement of section 3 (Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities) of the Basic Provisions (§ 457.8), that prohibits you from selecting more than one coverage level for each insured crop, you may select a different coverage level for each crop designated in the Special Provisions that you elect to insure.
(b) In addition to the requirements of section 3 (Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities) of the Basic Provisions (§ 457.8):
(1) If you insure trees within a crop which are either of a different variety or are planted at a different population density, the per acre amount of insurance for each variety or population density for the crop must bear the same relationship to the maximum amount of insurance available for each variety and population density of the crop as specified in the Actuarial documents. For example, if you elect 100 percent of the maximum amount of insurance for a variety within a population density for the crop, you must select 100 percent of the maximum amount of insurance for that variety for all population densities for the crop. The amount of insurance for each variety and population density must be multiplied by any applicable factor contained in section 3(b)(2).
(2) The amount of insurance per acre will be the product obtained by multiplying the reference maximum dollar amount of insurance that is shown in the actuarial documents for the applicable population density by the percentage for the level of coverage you select and by:
(i) Thirty-three percent (0.33) for the year of set out, the year following dehorning, or the year following grafting of a set out tree. (Insurance will be limited to this amount until trees that are set out are one year of age or older on the first day of the crop year);
(ii) Sixty percent (0.60) for the first growing season after being set out, the second year following dehorning, or the second year following grafting of a set out tree;
(iii) Eighty percent (0.80) for the second growing season after being set out, the third year following dehorning, or the third year following grafting of a set out tree; or
(iv) Ninety percent (0.90) for the third growing season after being set out, the fourth year following dehorning, or the fourth year following grafting of a set out tree.
(3) The amount of insurance per acre for each population density, or factor as appropriate, will be multiplied by the applicable number of insured acres. These results will then be added together to determine the amount of insurance for the unit.
(4) The amount of insurance will be reduced proportionately for any unit on which the stand is less than 90 percent, based on the original planting pattern. For example, if the amount of insurance you selected is $2,000 and the remaining stand is 85 percent of the original stand, the amount of insurance on which the premium and any indemnity will be based is $1,700 ($2,000 multiplied by 0.85).
(5) If any insurable acreage of trees is set out after the first day of the crop year, and you elect to insure such acreage during that crop year, you must report the acreage, practice, crop, number of trees, date set out is completed, and your share to us within 72 hours after set out is completed for the unit.
(6) Production reporting requirements contained in section 3 (Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities) of the Basic Provisions (§ 457.8), are not applicable.
(7) You must report, by the sales closing date contained in the Special Provisions, by type if applicable:
(i) Any damage, removal of trees, change in practices, or any other circumstance that may reduce the amount of insurance, and the number of affected acres;
(ii) The number of trees on insurable and uninsurable acreage;
(iii) The date of original set out and the planting pattern;
(iv) The date of replacement or dehorning, if more than 10 percent of the trees on any unit have been replaced or dehorned in the previous 5 years; and
(v) For the first year of insurance for acreage interplanted with another perennial crop, and anytime the planting pattern of such acreage is changed:
(A) The age of the interplanted crop, and type if applicable;
(B) The planting pattern; and
(C) Any other information that we request in order to establish your amount of insurance.
We will reduce the amount of insurance as necessary, based on our estimate of the effect of interplanting a perennial crop; removal of trees; damage; change in practices and any other circumstance on the potential of the insured crop. If you fail to notify us of any circumstance that may reduce the potential for the insured crop, we will reduce your amount of insurance as necessary at any time we become aware of the circumstance.
In accordance with section 4 (Contract Changes) of the Basic Provisions (§ 457.8), the contract change date is August 31 preceding the cancellation date.
In accordance with section 2 (Life of Policy, Cancellation, and Termination) of the Basic Provisions (§ 457.8), the cancellation and termination dates are November 20.
In addition to the provisions of section 7 of the Basic Provisions (§ 457.8), for the 1998 crop year, the premium amount otherwise payable for the 1998 crop year will be increased by 46 percent as a result of the additional six months of coverage for that crop year.
(a) In accordance with section 8 (Insured Crop) of the Basic Provisions (§ 457.8), the crop insured will be all of each citrus tree crop designated in the Special Provisions in the county for which a premium rate is provided by the actuarial documents and that you elect to insure:
(1) In which you have an ownership share;
(2) That is adapted to the area;
(3) That is set out for the purpose of growing fruit to be harvested for the commercial production of fresh fruit or for juice;
(4) That is irrigated; and
(5) That have the potential to produce at least 70 percent of the county average yield for the crop and age, unless a written agreement is approved to insure the trees with lesser potential.
(b) In addition to section 8 (Insured Crop) of the Basic Provisions (§ 457.8), we do not insure any citrus trees:
(1) During the crop year the application for insurance is filed, unless we inspect the acreage and consider it acceptable; or
(2) That have been grafted onto existing root stock or nursery stock within the one-year period prior to the date insurance attaches.
(c) We may exclude from insurance or limit the amount of insurance on any acreage that was not insured the previous year.
In lieu of the provisions in section 9 (Insurable Acreage) of the Basic Provisions (§ 457.8), that prohibit insurance attaching to a crop planted with another crop, citrus trees interplanted with another perennial crop are insurable, unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
In lieu of the provisions of section 11 (Insurance Period) of the Basic Provisions (§ 457.8):
(a) The insurance period is as follows:
(1) For the 1998 crop year only, coverage will begin on June 1, 1997, and will end on November 20, 1998.
(2) For all subsequent crop years, coverage begins on November 21 of the calendar year prior to the year the insured crop normally blooms, except that for the year of application, if your application is received after November 11 but prior to November 21, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10 day period and determine that it does not meet the requirements for insurability contained in your policy. You must provide any information that we require for the crop or to determine the condition of the grove.
(3) The calendar date for the end of the insurance period for each crop year is November 20.
(b) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(c) If you relinquish your insurable share on any insurable acreage of citrus trees on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to and no premium or indemnity will be due for such acreage for that crop year unless:
(1) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(2) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(3) The transferee is eligible for crop insurance.
In accordance with the provisions of section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur within the insurance period:
(a) Excess precipitation;
(b) Excess wind;
(c) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the grove;
(d) Freeze;
(e) Hail;
(f) Tornado; or
(g) Failure of the irrigation water supply if caused by an insured peril or drought that occurs during the insurance period.
In addition to the requirements of section 14 (Duties in the Event of Damage or Loss) of the Basic Provisions (§ 457.8), in case of damage or probable loss, if you intend to claim an indemnity on any unit, you must allow us to inspect all insured acreage before pruning, dehorning, or removal of any damaged trees.
(a) In the event of damage covered by this policy, we will settle your claim on a unit basis by:
(1) Determining the actual percent of damage for the unit in accordance with sections 12 (b), (c), and (d);
(2) Subtracting your deductible from the percent of damage for the unit (this result must be greater than zero to receive an indemnity);
(3) Dividing the result of section 12(a)(2) by your coverage level percentage;
(4) Multiplying the result of section 12(a)(3) by the amount of insurance per acre determined in accordance with section 3(b)(2);
(5) Multiplying the result of section 12(a)(4) by the number of insured acres; and
(6) Multiplying the result of section 12(a)(5) by your share.
(b) The percent of damage for any tree will be determined as follows:
(1) For damage occurring during the year of set out (trees that have not been set out for at least one year at the time insurance attaches):
(i) One-hundred percent (100%) whenever there is no live wood above the bud union;
(ii) Ninety percent (90%) whenever there is less than 12 inches of live wood above the bud union; or
(iii) The tree will be considered undamaged whenever there is more than 12 inches of live wood above the bud union; or
(2) For damage occurring in any year following the year of set out:
(i) The percentage of damage will be determined by dividing the number of scaffold limbs damaged in an area from the trunk to a length equal to one-fourth (
(ii) The percent of damage for the unit will be determined by computing the average of the determinations made for the individual trees. If this percent of damage exceeds 80 percent, the unit will be considered 100 percent damaged.
(c) The percent of damage on the unit will be reduced by the percentage of damage due to uninsured causes.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.107 Florida citrus fruit crop insurance provisions.
The Florida Citrus Fruit Crop Insurance Provisions for the 2014 and succeeding crop years are as follows:
Age class. Trees in the unit are grouped by age, with each insurable age group of a particular citrus fruit commodity, commodity type, and intended use receiving a Reference Maximum Dollar Amount shown in the actuarial documents that is used to calculate the amount of insurance for the unit.
Amount of insurance (per acre). The dollar amount determined by multiplying the Reference Maximum Dollar Amount shown on the actuarial documents for each applicable combination of commodity type, intended use, and age class of trees, within a citrus fruit commodity, times the coverage level percent that you elect, times your share.
Box. A standard field box as prescribed in the State of Florida Citrus Fruit Laws or contained in standards issued by FCIC.
Buckhorn. To prune any limb at a diameter of at least three inches for citrus.
Citrus fruit commodity. Citrus fruit as follows:
(1) Oranges;
(2) Grapefruit;
(3) Tangelos;
(4) Mandarins/Tangerines;
(5) Tangors;
(6) Lemons;
(7) Limes; and
(8) Any other citrus fruit commodity designated in the actuarial documents.
Citrus fruit group. A designation in the Special Provisions used to identify combinations of commodity types and intended uses within a citrus fruit commodity that may be grouped together for the purposes of electing coverage levels and identifying the insured crop.
Commodity type. A specific subgroup of a commodity having a characteristic or set of characteristics distinguishable from other subgroups of the same commodity.
Excess wind. A natural movement of air that has sustained speeds exceeding 58 miles per hour (50 knots) recorded at the U.S. National Weather Service (NWS) reporting station (reported as MAX SUST (KT)), the Florida Automated Weather Network (FAWN) reporting station (reported as 10m Wind (mph)), or any other weather reporting station identified in the Special Provisions operating nearest to the insured acreage at the time of damage.
Freeze. The formation of ice in the cells of the fruit caused by low air temperatures.
Harvest. The severance of mature citrus fruit from the tree by pulling, picking, shaking, or any other means, or collecting the marketable citrus fruit from the ground.
Hurricane. A windstorm classified by the U.S. Weather Service as a hurricane.
Intended use. The producer’s expected end use or disposition of the commodity at the time the commodity is reported. Insurable intended uses will be specified in the Special Provisions.
Interstock. The area of the tree that is grafted to a rootstock. For example, the rootstock may be Sour Orange, and the interstock grapefruit, and the grafted scion Valencia orange.
Potential production. The amount, converted to boxes, of citrus fruit that would have been produced had damage not occurred.
(a) Including citrus fruit that:
(1) Was harvested before damage occurred;
(2) Remained on the tree after damage occurred;
(3) Except as provided in (b), was missing, damaged, or destroyed from either an insured or uninsured cause;
(4) Was marketed or could be marketed as fresh citrus fruit;
(5) Was harvested prior to inspection by us; or
(6) Was harvested within 7 days after a freeze;
(b) Not including citrus fruit that:
(1) Was missing, damaged, or destroyed before insurance attached for any crop year;
(2) Was damaged or destroyed by normal dropping; or
(3) Any tangerines that normally would not meet the 210 pack size (2 and
Scion. A detached living portion of a plant joined to a stock in grafting.
Top worked. A buckhorned citrus tree with a new scion grafted onto the interstock.
Unmarketable. Citrus fruit that cannot be processed into products for human consumption.
(a) Basic units will be established in accordance with section 1 of the Basic Provisions.
(b) Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
(c) In addition to establishing optional units by section, section equivalent, or FSA farm serial number, optional units may be established if each optional unit is located on non-contiguous land.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one coverage level for each citrus fruit group that you elect to insure. If different amounts of insurance are available for commodity types within a citrus fruit group, you must select the same coverage level for each commodity type. For example, if you choose the 75 percent coverage level for one commodity type, you must also choose the 75 percent coverage level for all other commodity types within that citrus fruit group.
(b) The production reporting requirements contained in section 3 of the Basic Provisions are not applicable.
(c) You must report, by the acreage reporting date designated in the actuarial documents:
(1) Any event or action that could reduce the yield per acre of the insured citrus fruit commodity (including but not limited to removal of trees, any damage, disease, change in cultural practices, or any other circumstance that may reduce the productive capacity of the trees) and the number of affected acres;
(2) The number of trees on insurable and uninsurable acreage, including interplanted trees;
(3) The age of the trees and the planting pattern; and
(4) Any other information we request in order to establish your amount of insurance.
(d) We will reduce insurable acreage or the amount of insurance or both, as necessary:
(1) Based on our estimate of the effect of the interplanted trees on the insured commodity type;
(2) Following a decrease in plant stand;
(3) If cultural practices are performed that may reduce the productive capacity of the trees;
(4) If disease or damage occurs to the trees that may reduce the productive capacity of the trees; or
(5) Any other circumstance that may reduce the productive capacity of the trees or that may reduce the yield per acre from previous levels.
(e) If you fail to notify us of any circumstance that may reduce the acreage, the productive capacity of the trees, or the yield per acre from previous levels, we will reduce the acreage or amount of insurance or both as necessary any time we become aware of the circumstance.
(f) For carryover policies:
(1) Any changes to your coverage must be requested on or before the sales closing date;
(2) Requested changes will take effect on May 1, the first day of the crop year, unless we reject the requested increase based on our inspection, or because a loss occurs on or before April 30 (Rejection can occur at any time we discover loss has occurred on or before April 30); and
(3) If the increase is rejected, coverage will remain at the same level as the previous crop year.
In accordance with section 4 of the Basic Provisions, the contract change date is January 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are April 30.
(a) In accordance with section 8 of the Basic Provisions, the insured crop will be all acreage of each citrus fruit group that you elect to insure, in which you have a share, that is grown in the county shown on the application, and for which a premium rate is quoted in the actuarial documents.
(b) In addition to the citrus fruit not insurable in section 8 of the Basic Provisions, we do not insure any citrus fruit:
(1) That cannot be expected to mature each crop year within the normal maturity period for the commodity type;
(2) Produced by citrus trees that have not reached the fifth growing season after being set out, unless otherwise provided in the Special Provisions or by a written agreement to insure such citrus fruit (In order for the year of set out to be considered as a growing season, citrus trees must be set out on or before April 15 of the calendar year);
(3) Of “Meyer Lemons,” “Sour Oranges,” or “Clementines”;
(4) Of the Robinson tangerine variety, for any crop year in which you have elected to exclude such tangerines from insurance (You must elect this exclusion prior to the crop year for which the exclusion is to be effective, except that for the first crop year you must elect this exclusion by the later of the sales closing date or the time you submit the application for insurance);
(5) That is produced on citrus trees that have been topworked until the third crop year after topworking. The Special Provisions will specify the appropriate rate class for trees insurable following topworking, but that have not reached full production; or
(6) Of any commodity type not specified as insurable in the Special Provisions.
(c) Prior to the date insurance attaches, and upon our approval, you may elect to insure or exclude from insurance any insurable citrus acreage that has a potential production of less than 100 boxes per acre. If you elect to:
(1) Insure such acreage, we will consider the potential production to be 100 boxes per acre when determining the amount of loss; or
(2) Exclude such acreage, we will disregard the acreage for all purposes related to this policy.
(d) In addition to the provisions in section 6 of the Basic Provisions, if you fail to notify us of your election to insure or exclude citrus acreage, and the potential production from such acreage is 100 or more boxes per acre, we will determine the percent of damage on all of the insurable acreage for the unit, but will not allow the percent of damage for the unit to be increased by including such acreage.
(e) Potential production will be determined during loss adjustment.
(f) For citrus fruit for which fresh fruit coverage is available as designated in the actuarial documents:
(1) Management records must be available upon request to verify good fresh citrus fruit production practices were followed from the beginning of bloom stage until harvest; and
(2) Unless otherwise provided in the Special Provisions:
(i) Acceptable fresh fruit sales records must be provided upon request from at least one of the previous three crop years; or
(ii) For fresh fruit acreage new to the operation or for acreage in the initial year of fresh fruit production, a current year fresh fruit marketing contract must be provided to us upon request.
(a) In lieu of the provisions in section 9 of the Basic Provisions that prohibit insurance attaching to interplanted acreage:
(1) Citrus fruit from trees interplanted with another commodity type or another agricultural commodity is insurable unless we inspect the acreage and determine it does not meet the requirements contained in your policy.
(2) If the citrus fruit is from trees interplanted with another commodity type or another agricultural commodity, acreage will be prorated according to the percentage of the acres occupied by each of the interplanted commodity types or agricultural commodities. For example, if grapefruit have been interplanted with oranges on 100 acres and the grapefruit trees are on 50 percent of the acreage, grapefruit will be considered planted on 50 acres and oranges will be considered planted on 50 acres.
(3) The combination of the citrus fruit acreage and the interplanted acreage cannot exceed the physical amount of acreage.
(b) In addition to section 9 of the Basic Provisions, any acreage of citrus fruit that has been abandoned is not insurable.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) Coverage begins on May 1 of each crop year, unless:
(i) For new or carryover policies, as applicable, we inspect the acreage and determine it does not meet the requirements for insurability contained in your policy (You must provide any information we require, so we may determine the condition of the acreage to be insured); or
(ii) For carryover policies, you report additional citrus acreage, or a greater share, such that the amount of insurance will increase by more than 10 percent and we notify you all or a part of your citrus acreage is not insurable.
(2) The calendar date for the end of the insurance period for each crop year, unless specified otherwise in the Special Provisions, is:
(i) February 7 for navel oranges, Orlando tangelos and tangerines;
(ii) February 28 for early-season oranges and all other tangelos;
(iii) March 31 for mid-season oranges and temples;
(iv) April 30 for lemons and limes;
(v) May 15 for murcotts; and
(vi) June 30 for grapefruit and late-season oranges.
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) Acreage acquired after the acreage reporting date for the crop year is not insurable unless a transfer of coverage and right to indemnity is executed in accordance with section 28 of the Basic Provisions.
(2) If you relinquish your insurable share on any insurable acreage of citrus fruit on or before the acreage reporting date of the crop year, insurance will not attach, no premium will be due, and no indemnity payable, for such acreage for that crop year.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss to citrus fruit that occur within the insurance period:
(1) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the grove;
(2) Freeze;
(3) Hail;
(4) Hurricane;
(5) Tornado;
(6) Excess wind; or
(7) Diseases, but only if specified in the Special Provisions.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to:
(1) Damage to the blossoms or trees; or
(2) Inability to market the citrus fruit for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) If any citrus fruit within a unit is damaged by an insurable cause of loss, we will settle your claim by:
(1) Calculating the amount of insurance for the unit by multiplying the number of acres by the respective dollar amount of insurance per acre for each applicable combination of commodity type, intended use, and age class of trees in the unit and multiplying that result by your share;
(2) Calculating the average percent of damage to the fruit within each respective combination of commodity type, intended use, and age class of trees, rounded to the nearest tenth of a percent (0.1%) (To determine the percent of damage, the amount of citrus fruit damaged from an insured cause must be converted to boxes and divided by the potential production);
(3) Subtracting the deductible from the result of section 10(b)(2);
(4) If the result of section 10(b)(3) is positive, dividing this result by the coverage level percentage (If the result of section 10(b)(3) is negative, no indemnity will be due);
(5) Multiplying the result of section 10(b)(4) by the amount of insurance for the unit for the respective combination of commodity type, intended use, and age class of trees, to determine the value of all damage; and
(6) Totaling all such results of section 10(b)(5) for all applicable combinations of commodity types, intended uses, and age classes of trees in the unit and subtracting any indemnities paid for the current crop year to determine the amount payable for the unit. For example, assume a 55-acre unit sustains late season damage. No previous damage has occurred on the unit during the crop year and no fruit has been harvested. The producer elected the 75 percent coverage level and has a 100 percent share. The amount of insurance is $1,180 per acre, based on the 75 percent coverage level, for the commodity type, intended use, and age class of trees. The amount of potential production is 24,530 boxes and the amount of damaged production is 17,171 boxes. The loss would be calculated as follows:
1. 55 acres × $1,180 = $64,900 amount of insurance for the unit;
2. 17,171 ÷ 24,530 = 70 percent average percent of damage;
3. 70 percent damage −25 percent deductible (100 percent −75 percent) = 45 percent;
4. 45 percent ÷ 75 percent = 60 percent adjusted damage; and
5. 60 percent × $64,900 = $38,940 indemnity.
(c) Any individual citrus fruit will be considered 100 percent damaged, if due to an insurable cause of loss it is:
(1) On the ground and unmarketable; or
(2) Unmarketable because it is immature, unwholesome, decomposed, adulterated, or otherwise unfit for human consumption.
(d) Any citrus fruit that can be processed into products for human consumption will be considered marketable. The percent of damage for the marketable citrus fruit (excluding citrus fruit sold as fresh or damaged due to uninsured causes) will be determined by:
(1) Subtracting the juice content of the marketable citrus fruit (excluding citrus fruit sold as fresh or damaged due to uninsured causes) from:
(i) The average juice content of the fruit produced on the unit for the three previous crop years based on your records, if they are acceptable to us; or
(ii) The default juice content provided in the Special Provisions, if at least three years of acceptable juice records are not furnished or the citrus fruit is insured as fresh;
(2) Subtracting the juice content of the marketable citrus fruit (excluding citrus fruit sold as fresh or damaged due to uninsured causes) from the official weight per box for the applicable commodity type provided in the Special Provisions;
(3) Dividing the result of section 10(d)(1) by the result of 10(d)(2);
(4) Dividing the official weight per box for the applicable commodity type provided in the Special Provisions by:
(i) The average juice content of the fruit produced on the unit for the three previous crop years based on your records, if they are acceptable to us; or
(ii) The default juice content provided in the Special Provisions, if at least three years of acceptable juice records are not furnished or the citrus fruit is insured as fresh; and
(5) Multiplying the result of section 10(d)(3) by the result of 10(d)(4); and
(6) For citrus fruit insured as fresh that has a Fresh Fruit Factor listed in the Special Provisions, making an additional adjustment to the percent of damage by:
(i) Subtracting the result of section 10(d)(5) from 1;
(ii) Multiplying the result of section 10(d)(6)(i) by the applicable Fresh Fruit Factor located in the Special Provisions; and
(iii) Adding the result of section 10(d)(6)(ii) to the result of section 10(d)(5).
(e) Notwithstanding section 10(d), for citrus fruit insured as fresh, unless otherwise provided in the Special Provisions, any individual citrus fruit not meeting the applicable United States Standards for packing as fresh fruit due to an insured cause of loss will be considered 100 percent damaged, except that the percent of damage for any production sold for an alternative use will be adjusted in accordance with section 10(d).
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.108 Sunflower seed crop insurance provisions.
The Sunflower Seed Crop Insurance Provisions for the 2022 and succeeding crop years are as follows:
Harvest. Combining or threshing the sunflowers for seed.
Local market price. The cash seed price per pound for oil type sunflower seed grading U.S. No. 2, or non-oil type sunflower seed with a test weight of at least 22 pounds per bushel and less than five percent (5%) kernel damage, offered by buyers in the area in which you normally market the sunflower seed. The local market price for oil type sunflower seed will reflect the maximum limits of quality deficiencies allowable for the U.S. No. 2 grade of sunflower seed. Factors not associated with grading of sunflower seed under the Official United States Standards for Grain including, but not limited to, oil or moisture content will not be considered.
Planted acreage. In addition to the definition contained in the Basic Provisions, sunflower seed must initially be planted in rows far enough apart to permit mechanical cultivation, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
(a) In addition to the requirements of section 34(a) of the Basic Provisions, you may elect separate enterprise units for confectionery or oil types if these types are allowed by the actuarial documents. If you elect enterprise units for these types, you may not elect enterprise or optional units by irrigation practices.
(1) You may elect one enterprise unit for the confectionery type or one enterprise unit for the oil type, or separate enterprise units for both types, unless otherwise specified in the Special Provisions. For example: You may choose one enterprise unit for the confectionery type acreage and basic or optional units for the oil type acreage.
(2) You must separately meet the requirements in section 34(a)(4) for each enterprise unit.
(3) If you elected separate enterprise units for both types and we discover you do not qualify for an enterprise unit for one or the other type and such discovery is made:
(i) On or before the acreage reporting date, you may elect to insure:
(A) One enterprise unit for the confectionery type or oil type provided you meet the requirements in section 34(a)(4), and basic or optional units for the other type, whichever you report on your acreage report and qualify for;
(B) One enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4); or
(C) Basic or optional units for all acreage of the crop in the county, whichever you report on your acreage report and qualify for; or
(ii) At any time after the acreage reporting date, your unit structure will be one enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4). Otherwise, we will assign the basic unit structure.
(4) If you elected an enterprise unit for one type and a different unit structure on the other type and we discover you do not qualify for an enterprise unit for the type and such discovery is made:
(i) On or before the acreage reporting date, your unit division will be based on basic or optional units, whichever you report on your acreage report and qualify for; or
(ii) At any time after the acreage reporting date, we will assign the basic unit structure.
(b) In addition to, or instead of, establishing optional units as provided in section 34(c) in the Basic Provisions, a separate optional unit may be established for each sunflower type (designated in the actuarial documents and including any type insured by written agreement).
In addition to the requirements of section 3 of the Basic Provisions, you must elect to insure your sunflowers with either revenue protection or yield protection by the sales closing date.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State and county | Cancellation
and termination dates |
|---|---|
| Hidalgo, Jim Wells, Nueces, and Starr Counties, Texas | January 31. |
| All other Texas counties and all other States | March 15. |
In accordance with section 8 of the Basic Provisions, the crop insured will be all the oil and non-oil type sunflower seed in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is planted for harvest as sunflower seed; and
(c) That is not (unless a written agreement allows otherwise):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage which does not meet the rotation requirements shown in the Special Provisions; and
(b) Any acreage of the insured crop damaged before the final planting date, to the extent that a majority of producers in the area would not normally further care for the crop, must be replanted unless we agree that it is not practical to replant.
In accordance with the provisions of section 11 of the Basic Provisions, the calendar date for the end of the insurance period is November 30, immediately following planting.
In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss which occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss specified in sections 9(a) through (g) that also occurs during the insurance period; or
(i) For revenue protection, a change in the harvest price from the projected price, unless FCIC can prove the price change was the direct result of an uninsured cause of loss specified in section 12(a) of the Basic Provisions.
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that limit the amount of a replant payment to the actual cost of replanting, the amount of any replanting payment will be determined in accordance with these Crop Provisions;
(2) Except as specified in section 10(a)(1), you must comply with all requirements regarding replanting payments contained in section 13 of the Basic Provisions; and
(3) The insured crop must be damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage.
(b) Unless otherwise specified in the Special Provisions, the amount of the replanting payment per acre will be the lesser of 20 percent of the production guarantee or 175 pounds, multiplied by your projected price, multiplied by your share.
(c) When the crop is replanted using a practice that is uninsurable for an original planting, the liability for the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
(d) If the acreage is replanted to an insured crop type that is different than the insured crop type originally planted on the acreage:
(1) The production guarantee, premium, and projected price and harvest price, as applicable, will be adjusted based on the replanted type;
(2) Replanting payments will be calculated using your projected price and production guarantee for the crop type that is replanted and insured; and
(3) A revised acreage report will be required to reflect the replanted type, as applicable.
Representative samples are required in accordance with section 14 of the Basic Provisions.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the number of insured acres by your respective:
(i) Yield protection guarantee (per acre) if you elected yield protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue protection;
(2) Totaling the results of section 12(b)(1)(i) or 12(b)(1)(ii), whichever is applicable;
(3) Multiplying the production to count by your:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 12(b)(3)(i) or 12(b)(3)(ii), whichever is applicable;
(5) Subtracting the result of section 12(b)(4) from the result of section 12(b)(2); and
(6) Multiplying the result of section 12(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of sunflowers in the unit with a production guarantee (per acre) of 1,250 pounds, your projected price is $.23, your harvest price is $.24, and your production to count is 54,000 pounds.
If you elected yield protection:
(1) 50 acres × (1,250 pound production guarantee × $.23 projected price) = $14,375.00 value of the production guarantee;
(3) 54,000 pound production to count × $.23 projected price = $12,420.00 value of production to count;
(5) $14,375.00−$12,420.00 = $1,955.00;
(6) $1,955.00 × 1.000 share = $1,955.00 indemnity; or
If you elected revenue protection:
(1) 50 acres × (1,250 pound production guarantee × $.24 harvest price) = $15,000.00 revenue protection guarantee;
(3) 54,000 pound production to count × $.24 harvest price = $12,960.00 value of the production to count;
(5) $15,000.00−$12,960.00 = $2,040.00;
(6) $2,040.00 × 1.000 share = $2,040.00 indemnity.
(c) The total production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee, and for revenue protection, not less than the amount of production that when multiplied by the harvest price equals the revenue protection guarantee (per acre) for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide records of production that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with section 12(d)); and
(iv) Potential production on insured acreage you want to put to another use or you wish to abandon and no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end if you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count.); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature sunflower seed production may be adjusted for excess moisture and quality deficiencies. If moisture adjustment is applicable, it will be made prior to any adjustment for quality.
(1) Production will be reduced by 0.12 percent for each 0.1 percentage point of moisture in excess of ten percent (10%). We may obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality result in:
(A) Oil type sunflower seed not meeting the grade requirements for U.S. No. 2 (grades U.S. sample grade) because of test weight, kernel damage (excluding heat damage), or a musty, sour or commercially objectionable foreign odor; or
(B) Non-oil type sunflower seed having a test weight below 22 pounds per bushel or kernel damage (excluding heat damage) in excess of five percent (5%) or a musty, sour or commercially objectionable foreign odor; or
(ii) Substances or conditions are present that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a cause of loss against which insurance is provided under these crop provisions and within the insurance period;
(ii) All determinations of these deficiencies, substances, or conditions are made using samples of the production obtained by us or by a disinterested third party approved by us;
(iii) With regard to deficiencies in quality (except test weight, which may be determined by our loss adjustor), the samples are analyzed by:
(A) A grain grader licensed under the United States Grain Standards Act or the United States Warehouse Act;
(B) A grain grader licensed under State law and employed by a warehouse operator who has a storage agreement with the Commodity Credit Corporation; or
(C) A grain grader not licensed under State law, but who is employed by a warehouse operator who has a commodity storage agreement with the Commodity Credit Corporation and is in compliance with State law regarding warehouses; and
(iv) With regard to substances or conditions injurious to human or animal health, the samples are analyzed by a laboratory approved by us.
(4) Sunflower seed production that is eligible for quality adjustment, as specified in sections 12(d)(2) and (3), will be reduced in accordance with quality adjustment factor provisions contained in the Special Provisions.
(e) Any production harvested from plants growing in the insured crop may be counted as production of the insured crop on a weight basis.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.109 Sugar Beet Crop Insurance Provisions.
The Sugar Beet Crop Insurance Provisions for effective for the 2023 and succeeding crop years in states with a November 30 contract change date and for the 2024 and succeeding crop years in all other states, are as follows:
Both FCIC and Reinsured Policies
Crop year. The period within which the sugar beets are normally grown, which is designated by the calendar year in which the sugar beets are normally harvested.
Harvest. Topping and lifting of sugar beets in the field.
Percentage of raw sugar. Quantity of sugar determined from analytical tests of samples performed by the processor or other laboratories approved by us.
Planted acreage. In addition to the definition contained in the Basic Provisions, sugar beets must initially be planted in rows, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Pound. Sixteen (16) ounces avoirdupois.
Practical to replant. In addition to the definition in section 1 of the Basic Provisions, it will not be considered practical to replant if production from the replanted acreage cannot be delivered under the terms of the production agreement, or 30 days after the initial planting date for all counties where a late planting period is not applicable, unless replanting is generally occurring in the area.
Processor. Any business enterprise regularly engaged in processing sugar beets for sugar that possesses all licenses and permits for processing sugar beets required by the State in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process the contracted sugar beets within a reasonable amount of time after harvest.
Production agreement. A written contract between you and the processor, executed on or before the acreage reporting date, which is in effect for the crop year, containing at a minimum:
(1) Your commitment to plant, grow, and deliver the sugar beet production to the processor; and
(2) The processor’s commitment to purchase the production stated in the contract.
Production guarantee (per acre):
(1) First stage production guarantee – The final stage production guarantee multiplied by 60 percent.
(2) Final stage production guarantee – The number of pounds of raw sugar determined by multiplying the approved yield per acre by the coverage level percentage you elect.
Raw sugar. Sugar that has not been extracted from the sugar beet.
Ton. Two thousand (2,000) pounds avoirdupois.
In addition to the requirements of section 34 of the Basic Provisions, basic units may be divided into optional units only if you have a production agreement that requires the processor to accept all production from a number of acres specified in the production agreement. Acreage insured to fulfill a production agreement which provides that the processor will accept a designated amount of production or a combination of acreage and production will not be eligible for optional units.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may select only one price election for all the sugar beets in the county insured under this policy.
(b) The production guarantees are progressive by stages and increase at specified intervals to the final stage. The stages are:
(1) First stage, with a guarantee of 60 percent (60%) of the final stage production guarantee, extends from planting until:
(i) The earlier of thinning or 90 days after planting in California; and
(ii) July 1 in all other States.
(2) Final stage, with a guarantee of 100 percent (100%) of the final stage production guarantee, applies to all insured sugar beets that complete the first stage.
(c) The production guarantee will be expressed in pounds of raw sugar.
(d) Any acreage of sugar beets damaged in the first stage to the extent that growers in the area would not normally further care for the sugar beets will be deemed to have been destroyed, even though you may continue to care for it. The production guarantee for such acreage will not exceed the first stage production guarantee.
In accordance with the provisions of section 4 of the Basic Provisions, the contract change date is April 30 preceding the cancellation date for California and November 30 preceding the cancellation date for all other states.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are August 31 for California and March 15 for all other states.
In addition to the requirements of section 6 of the Basic Provisions, you must provide a copy of all production agreements to us on or before the acreage reporting date.
In lieu of the premium computation method contained in section 7 of the Basic Provisions, the annual premium amount is computed by multiplying the final stage production guarantee by the price election, the premium rate, the insured acreage, your share at the time of planting, and any applicable premium adjustment factors contained in the actuarial documents.
(a) In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the sugar beets in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvest as sugar beets;
(3) That are grown under a production agreement and are not excluded from the production agreement at any time during the crop year; and
(4) That are not (unless allowed by the Special Provisions or by written agreement):
(i) Interplanted with another crop;
(ii) Planted into an established grass or legume; or
(iii) Planted prior to submitting a properly completed application.
(b) Sugar beet growers who are also processors may establish an insurable interest if they meet the following requirements:
(1) The processor must meet the definition of a “processor” in section 1 of these crop provisions and have a valid insurable interest in the sugar beet crop;
(2) The Board of Directors or officers of the processor must have adopted and executed a corporate resolution that contains essentially the same terms as a production agreement. Such corporate resolution will be considered a production agreement under the terms of the sugar beet crop insurance policy;
(3) The sales records of the processor showing the amount of sugar produced the previous year must be supplied to us to confirm the processor has produced and sold sugar in the past; and
(4) Our inspection of the processing facilities determines that they conform to the definition of “processor” contained in section 1 of these crop provisions.
In addition to the provisions of section 9 of the Basic Provisions (§ 457.8):
(a) We will not insure any acreage planted to sugar beets:
(1) The preceding crop year, unless otherwise specified in the Special Provisions for the county;
(2) In any crop year following the discovery of rhizomania on the acreage, unless allowed by the Special Provisions or by written agreement; or
(3) That does not meet the rotation requirements shown in the Special Provisions;
(b) Any acreage of the insured crop damaged before the final planting date, to the extent that growers in the area would normally not further care for the crop, must be replanted unless we agree that replanting is not practical.
In accordance with section 11 of the Basic Provisions, the dates for the end of insurance period are contained in the Special Provisions.
In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(a) In accordance with section 13 of the Basic Provisions (§ 457.8), a replanting payment is allowed if the crop is damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent (90%) of the final stage production guarantee for the acreage and it is practical to replant.
(b) The dollar amount of the replant payment is specified in the Special Provisions.
(c) When sugar beets are replanted using a practice that is uninsurable for an original planting, our liability on the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
In accordance with the requirements of section 14 of the Basic Provisions, representative samples of the unharvested crop must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be harvested or destroyed until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which acceptable production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim on any unit by:
(1) Multiplying the insured acreage by its respective production guarantee;
(2) Subtracting the total production to count from the result in paragraph (b)(1);
(3) Multiplying the result of paragraph (b)(2) by your price election; and
(4) Multiplying the result of paragraph (b)(3) by your share.
(c) The total production to count from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production;
(iv) Only appraised production in excess of the difference between the first and final stage production guarantee for acreage that does not qualify for the final stage guarantee will be counted, except that all production from acreage subject to paragraphs (c)(1)(i) and (ii) of this section will be counted; and
(v) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end if you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(d) Harvested production or unharvested production that is appraised after the earliest delivery date that the processor accepts harvested production and that meets the minimum acceptable standards contained in the production agreement or corporate resolution will be converted to pounds of raw sugar by multiplying the tons of such production by 2,000 and by the average percentage of raw sugar to determine the production to count. The average percentage of raw sugar will be determined from tests performed by the processor or other laboratories approved by us at the time of delivery or sample acquisition (appraisal).
(1) If individual tests of raw sugar content are not made at the time of delivery, the average percent of raw sugar may be based on the results of your previous tests performed by the processor or other laboratories approved by us during the crop year if it is determined that such results are representative of the total production.
(2) If not representative, the average percent of raw sugar will equal the raw sugar content percent shown in the Special Provisions.
(e) Harvested production or unharvested production that is appraised after the earliest delivery date that the processor accepts harvested production and that does not meet the minimum acceptable standards contained in the production agreement or corporate resolution due to an insured peril will be converted to pounds of raw sugar by multiplying the tons of such damaged production by 2,000 and by the average percent of raw sugar contained in such production. The average percentage of raw sugar will be determined from tests performed by the processor or other laboratories approved by us at the time of crop delivery or sample acquisition (appraisal).
(1) If individual tests of raw sugar content are not made at the time of delivery, the average percent of raw sugar may be based on the results of your previous tests performed by the processor or other laboratories approved by us during the crop year if it is determined that such results are representative of the total production.
(2) If not representative, the average percent of raw sugar will equal the raw sugar content percent shown in the Special Provisions.
(f) Production lost due to harvest prior to full maturity. If the percentage of insured acreage in the unit harvested prior to full maturity exceeds the threshold specified in the Special Provisions, production to count from such acreage will be determined by increasing the amount of harvested production by 1 percent per day for each day the sugar beets were harvested prior to the date the sugar beets would have reached full maturity.
(1) The date the sugar beets would have reached full maturity will be considered to be 45 days prior to the calendar date for the end of the insurance period, unless otherwise specified in the Special Provisions.
(2) The adjustment will not be made if the sugar beets are damaged by an insurable cause of loss and leaving the crop in the field would reduce production.
(3) The adjustment cannot result in a yield greater than the higher of your approved actual production history yield or the actual yield of the production harvested after full maturity from the unit.
(4) The adjustment will only be made if early harvest is required in the production agreement, or the processor requests early harvest prior to full maturity.
(5) If the production agreement does not require early harvest and the processor has not requested early harvest, and the processor:
(i) Accepts the early harvested production, the early harvested production will be counted but no early harvest adjustment will apply.
(ii) Does not accept the early harvested production, the production to count will be the production guarantee for the acreage harvested early.
(g) If harvested production is damaged due to an insurable cause of loss and is rejected by the processor but is sold to a salvage buyer at a reduced price: Compute the pounds of raw sugar of the sold production by dividing the gross dollar amount paid by the salvage buyer by the established price.
(h) If production is damaged due to an insurable cause of loss to the extent that the processor will not accept the production, such as the production did not meet the standards contained in the production agreement; and there are no salvage markets for the production, then there would be no value for production and there would be no production to count provided the production is destroyed in a manner acceptable to us.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
(a) Applicability:
(1) You must have an additional coverage policy to elect this option.
(2) You must elect this option in writing on or before the sales closing date for the first year it is in effect.
(3) This election is continuous, in accordance with section 2 of the Basic Provisions, unless canceled by the cancellation date. Your election of the Catastrophic Risk Protection Endorsement for your sugar beets in any crop year will be deemed to be cancellation of this option by you.
(4) All insurable acreage of sugar beets in the county will be included under this option unless any acreage is specifically excluded by the Special Provisions.
(b) Insurance Guarantees:
(1) The production guarantee (per acre) will be the final stage guarantee.
(2) The terms and conditions contained in sections 3(b) and 3(d) do not apply under this option.
(c) Premium Adjustment Factor: The premium adjustment factor in the actuarial documents for the stage removal option will apply to the premium computation method in section 7.
(d) Settlement of Claim:
(1) The “respective production guarantee” referenced in section 14(b) will be the final stage guarantee.
(2) The terms and conditions of section 14(c)(1)(iv) do not apply under this option.
§ 457.110 Fig crop insurance provisions.
The Fig Crop Insurance Provisions for the 2001 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
Harvest. The picking of the figs from the trees or ground by hand or machine for the purpose of removal from the orchard.
Interplanted. Acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Manufacturing grade production. Production that meets the minimum grade standards and is defined as “manufacturing grade” by the Marketing Order for Dried Figs, as amended, which is in effect on the date insurance attaches.
Marketable figs. Figs that grade manufacturing grade or better in accordance with the Marketing Order for Dried Figs, as amended, which is in effect on the date insurance attaches.
Substandard production. Production that does not meet minimum grade standards and is defined as “substandard” by the Marketing Order for Dried Figs, as amended, which is in effect on the date insurance attaches.
(a) A basic unit, as defined in section 1 of the Basic Provisions, will be divided into additional basic units by each fig type designated in the Special Provisions.
(b) Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm serial number and by irrigated and non-irrigated practices are not applicable. Optional units may be established only if each optional unit is located on non-contiguous land, unless otherwise allowed by written agreement.
(a) In addition to the requirements under section 3 of the Basic Provisions, you may select only one price election for each fig type designated in the Special Provisions and insured in the county under this policy.
(b) You may not increase your elected or assigned coverage level or the ratio of your price election to the maximum price election if a cause of loss that could or would reduce the yield of the insured crop has occurred prior to the time you request the increase.
(c) You must report, by the production reporting date designated in section 3 of the Basic Provisions, by type if applicable:
(1) Any damage, removal of trees, change in practices, or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern;
(4) For the first year of insurance for acreage interplanted with another perennial crop, and anytime the planting pattern of such acreage is changed, the age of the crop that is interplanted with the figs, and type if applicable, and the planting pattern; and
(5) Any other information that we request in order to establish your approved yield. We will reduce the yield used to establish your production guarantee as necessary, based on our estimate of the effect of the following: Interplanted perennial crop; removal of trees; damage; change in practices and any other circumstance on the yield potential of the insured crop. If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce your production guarantee as necessary at any time we become aware of the circumstance.
The contract change date is October 31 preceding the cancellation date (see the provisions under section 4 (Contract Changes) of the Basic Provisions (§ 457.8)).
The cancellation and termination dates are February 28.
By applying for fig crop insurance, you authorize us to have access to and to determine or verify your production and acreage from records maintained by the California Fig Advisory Board and the fig packer.
The crop insured will be all the commercially grown dried figs that are grown in the county on insurable acreage, and for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for harvest as dried figs;
(c) That are irrigated;
(d) That have reached the seventh growing season after being set out; and
(e) For which acceptable production records for at least the previous crop year are provided;
(f) That are not figs:
(1) Grown on acreage with less than 90 percent of a stand based on the original planting pattern unless we agree, in writing, to insure such figs;
(2) Which we inspect and consider not acceptable;
(3) Grown for the crop year the application is filed unless inspected and accepted by us; or
(4) Grown on acreage acquired for the crop year unless such acreage has been inspected and accepted by us.
In lieu of the provisions in section 9 of the Basic Provisions, that prohibit insurance attaching to a crop planted with another crop, figs interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) Coverage begins on March 1, except that for the year of application, if your application is received after February 19 but prior to March 1, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10 day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the orchard.
(2) The calendar date for the end of the insurance period for each crop year is October 31 or the date harvest of the figs (by type) should have started on any acreage that will not be harvested (Exceptions, if any, for specific counties or varieties or varietal group are contained in the Special Provisions).
(b) Notwithstanding paragraph (a)(1) of this section, for each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(c) If your fig policy is canceled or terminated for any crop year, in accordance with the terms of the policy, after insurance attached for that crop year but on or before the cancellation and termination dates whichever is later, insurance will not be considered to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(a) In addition to the provisions under section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), any loss covered by this policy must occur within the insurance period. The specific causes of loss for figs are:
(1) Adverse weather conditions;
(2) Earthquake;
(3) Fire;
(4) Volcanic eruption;
(5) Wildlife; or
(6) Failure of the irrigation water supply.
(b) In addition to the causes of loss not insured against contained in section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), we will not insure against:
(1) Any loss of production due to fire, where weeds and other forms of undergrowth have not been controlled or tree pruning debris has not been removed from the grove; or
(2) The inability to market the fruit as a direct result of quarantine, boycott, or refusal of any entity to accept production.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by the production guarantee;
(2) Subtracting from this the total production to count;
(3) Multiplying the remainder by your price election; and
(4) Multiplying this result by your share.
(c) The total production (pounds) to count from all insurable acreage on the unit will include all harvested and appraised marketable figs.
(1) Figs, which due to insurable causes, grade manufacturing grade will be adjusted by:
(i) Dividing the value per pound of the manufacturing grade production by the highest price election available for the insured type; and
(ii) Multiplying the result (not to exceed 1) by the number of pounds of such manufacturing grade production.
(2) Figs, which due to insurable causes, grade substandard and are delivered to the substandard pool will not be considered production to count, provided all the insured’s substandard production is inspected by us and we give written consent to such delivery prior to delivery. If we do not give written consent prior to the delivery to the substandard pool, all production will be counted as undamaged marketable production. Substandard production for which we give written consent to you prior to delivery to the substandard pool, which is not delivered to the substandard pool, and is sold by you, will be considered production to count and adjusted as follows:
(i) Dividing the value per pound received for such substandard production by the highest price election available for the insured type; and
(ii) Multiplying the result (not to exceed 1) by the number of pounds of such substandard production.
(3) Appraised production to be counted will include:
(i) Potential production lost due to uninsured causes and failure to follow recognized good fig farming practices;
(ii) Not less than the production guarantee for the figs on any acreage:
(A) That is abandoned without our consent;
(B) Damaged solely by uninsured causes;
(c) If the figs are destroyed by you without our consent; or
(D) For which you fail to provide records of production that are acceptable to us;
(iii) Unharvested production which would be marketable if harvested; and
(iv) Potential production on insured acreage that you want to abandon and no longer care for if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end if you abandon the crop. If agreement on the appraised amount of production is not reached:
(A) We may require you to continue to care for the crop so that a subsequent appraisal may be made or the crop harvested to determine actual production. You must notify us within three days of the date harvest should have started if the crop is not harvested; or
(B) You may elect to continue to care for the crop. We will determine the amount of production to count for the acreage using the harvested production or our reappraisal if the crop is not harvested.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.111 Pear crop insurance provisions.
The Pear Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Both FCIC and Reinsured Policies
Harvest. The picking of mature pears from the trees or the collecting of marketable pears from the ground.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Marketable. Pear production that grades U.S. Number 2 processing or better, unless otherwise provided in the Special Provisions, or that is sold (even if failing to meet any U.S. or applicable state grading standard).
Ton. Two thousand (2,000) pounds avoirdupois.
(a) Optional units may either be established in accordance with section 34(c) of the Basic Provisions or by non-contiguous land, but not both.
(b) In addition to establishing optional units in accordance with section 2(a), optional units may be established by type if allowed by the Special Provisions. The requirements of section 34 of the Basic Provisions that require the crop to be planted in a manner that results in a clear and discernable break in the planting pattern at the boundaries of each optional unit are not applicable for optional units by type.
In addition to the requirements of section 3 of the Basic Provisions (§ 457.8):
(a) You may select different coverage levels and percent of price elections for each type in the county as specified in the Special Provisions, unless you elect Catastrophic Risk Protection (CAT) on any type.
(1) For example, if you choose 75 percent coverage level and 100 percent of the maximum price election for one type, you may choose 65 percent coverage level and 75 percent of the maximum price election for another type. However, if you elect the CAT level of coverage for any pear type, the CAT level of coverage will be applicable to all insured pear acreage for all types in the county.
(2) Notwithstanding section 3(b)(2) of the Basic Provisions, pear types will not be considered as separate crops and will not be subject to separate administrative fees.
(b) You must report, by the production reporting date designated in section 3 of the Basic Provisions (§ 457.8), by type:
(1) Any damage, removal of trees, change in practices or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with another perennial crop, and any time the planting pattern of such acreage is changed:
(i) The age of the interplanted crop, and type if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your approved yield.
(c) We will reduce the yield used to establish your production guarantee, as necessary, based on our estimate of the effect of any situation listed in sections 3(b)(1) through (b)(4). If the situation occurred:
(1) Before the beginning of the insurance period, the yield used to establish your production guarantee will be reduced for the current crop year regardless of whether the situation was due to an insured or uninsured cause of loss (If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce the yield used to establish your production guarantee at any time we become aware of the circumstance);
(2) After the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee will be reduced for the current crop year only if the potential reduction in the yield used to establish your production guarantee is due to an uninsured cause of loss; or
(3) After the beginning of the insurance period and you fail to notify us by the production reporting date, production lost due to uninsured causes equal to the amount of the reduction in yield used to establish your production guarantee will be applied in determining any indemnity (see section 11(c)(1)(ii)). We will reduce the yield used to establish your production guarantee for the subsequent crop year to reflect any reduction in the productive capacity of the trees.
(d) You may not increase your elected or assigned coverage level or the ratio of your price election to the maximum price election if a cause of loss that could or would reduce the yield of the insured crop has occurred prior to the time that you request the increase.
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is October 31 preceding the cancellation date for states with a January 31 cancellation date and August 31 preceding the cancellation date for all other states.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are:
| States | Cancellation and termination dates |
|---|---|
| California | January 31. |
| All other states | November 20. |
In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the pears in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are of varieties adapted to the area;
(c) That are grown on trees that have produced an average of at least five (5) tons of pears per acre in at least one of the four previous crop years, unless otherwise allowed by the Special Provisions; and
(d) That are grown in an orchard that, if inspected, is considered acceptable by us.
In lieu of the provisions in section 9 of the Basic Provisions (§ 457.8), that prohibit insurance attaching to a crop planted with another crop, pears interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) For the year of application, coverage begins:
(i) In California, on February 1, except that if your application is received after January 22 but prior to February 1, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10-day period and determine that it does not meet insurability requirements (You must provide any information that we require for the crop or to determine the condition of the orchard); or
(ii) In all other states, on November 21, except that if your application is received after November 11 but prior to November 21, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10-day period and determine that it does not meet insurability requirements (You must provide any information that we require for the crop or to determine the condition of the orchard).
(2) For each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring an existing policy to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(3) The calendar date for the end of the insurance period for each crop year is:
(i) September 15 for all types of summer or fall pears;
(ii) October 15 for all types of winter pears; or
(iii) As otherwise provided for specific types in the Special Provisions.
(4) If your pear policy is canceled or terminated for any crop year, in accordance with the terms of the policy, after insurance attached for that crop year but on or before the cancellation and termination dates whichever is later, insurance will not be considered to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(b) In addition to the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable interest on any insurable acreage of pears on or before the acreage reporting date of any crop year, insurance will not be considered to have attached to, and no premium will be due, and no indemnity paid, for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Earthquake;
(4) Volcanic eruption;
(5) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period;
(6) Insects, but not damage due to insufficient or improper application of pest control measures; or
(7) Plant disease, but not damage due to insufficient or improper application of disease control measures.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions (§ 457.8), we will not insure against damage or loss of production due to:
(1) Failure of the fruit to color properly; or
(2) Inability to market the pears for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples in accordance with our procedures.
(b) In addition to the requirements of section 14 of the Basic Provisions (§ 457.8), the following will apply:
(1) You must notify us within 3 days of the date harvest should have started if the crop will not be harvested.
(2) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(3) If you intend to claim an indemnity on any unit, you must notify us at least 15 days prior to the beginning of harvest if you previously gave notice in accordance with section 14 of the Basic Provisions (§ 457.8), so that we may inspect the damaged production. You must not sell or dispose of the damaged crop until after we have given you written consent to do so. If you fail to meet the requirements of this section, and such failure results in our inability to inspect the damaged production, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate, acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type if applicable, by its respective production guarantee;
(2) Multiplying the results of section 11(b)(1) by your price election for each type, if applicable;
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to be counted of each type, if applicable, by your price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the result of section 11(b)(5) from the result of section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share.
Basic Coverage Example:
You have a 100 percent share of a 20-acre pear orchard located in a state other than California. You elect 100 percent of the $500/ton price election. You have a production guarantee of 15 tons/acre; you are only able to produce 10 tons of pears per acre. Your indemnity will be calculated as follows:
(1) 20 acres × 15 tons/acre = 300-ton production guarantee;
(2) $500/ton (100 percent of the price election) × 300-ton production guarantee;
(3) = $150,000 value of production guarantee;
(4) 20 acres × 10 tons = 200-ton production to count;
(5) $500/ton (100 percent of the price election) × 200-ton production to count = $100,000 value of production to count;
(6) $150,000 value of production guarantee – $100,000 value of production to count = $50,000 loss; and
(7) $50,000 × 100 percent share = $50,000 indemnity payment.
(c) The total production to count (in tons) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the requirements contained in section 10;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) For all states except California, all harvested and appraised marketable pear production from the insurable acreage.
(3) For California, all harvested and appraised production that:
(i) Meets the standards for first grade canning as defined by the California Pear Advisory Board or for U.S. Number 1 as defined by the United States Standards for Grades of Summer and Fall Pears, or Pears for Processing, or for U.S. Extra Number 1 or U.S. Number 1 as defined by the United States Standards for Grades of Winter Pears;
(ii) Is accepted by a processor for canning or packing; or
(iii) Is marketable for any purpose. However, if the pears are damaged by an insured cause, the production to count will be reduced by the greater of the following amounts:
(A) The excess over ten percent (10%) of pears that are size 165 or smaller for varieties other than Forelle, Seckel or Winter Nelis; or
(B) The result of dividing the value per ton of such pears by the highest price election for the insured type, subtracting this result from 1.000, and multiplying this difference (if positive) by the number of tons of such pears.
(d) Any pear production not graded or appraised prior to the earlier of the time pears are placed in storage or the date the pears are delivered to a packer, processor, or other handler will not be considered damaged pear production and will be considered production to count.
The late and prevented planting provisions of the Basic Provisions are not applicable.
In the event of a conflict between the Pear Crop Insurance Provisions and this option, this option will control. If you select this option, you cannot receive less than the indemnity due under section 11.
(a) This endorsement applies to any crop year, provided:
(1) The insured pears are located in a State designated for such coverage on the actuarial documents and for which there is designated a premium rate for this endorsement;
(2) All the pear trees in the unit are managed for the production of fresh market pears (Units that are not managed for the production of fresh market pears do not qualify for this endorsement);
(3) You have not elected to insure your pears under the CAT Endorsement;
(4) You elected it on your application or other form approved by us, and did so on or before the sales closing date for the initial crop year for which you wish it to be effective (By doing so, you agree to pay the additional premium designated in the actuarial documents for this optional coverage); and
(5) You or we do not cancel it in writing on or before the cancellation date. Your election of CAT coverage for any crop year after this endorsement is effective will be considered as notice of cancellation of this endorsement by you.
(b) If the fresh pear production is damaged by an insured cause of loss, and if eleven percent (11%) or more of the harvested and appraised production does not grade at least U.S. Number 1 in accordance with the United States Standards for Grades of Summer and Fall Pears or the United States Standards for Grades of Winter Pears, as applicable, the amount of production to count will be reduced as follows:
(1) By two percent (2%) for each full one percent (1%) in excess of ten percent (10%), when eleven percent (11%) through sixty percent (60%) of the pears fail the grade standard; or
(2) By one hundred percent (100%) when more than sixty percent (60%) of the pears fail the grade standard.
(3) If you sell more of your fresh pear production as U.S. Number 1 or better than the quantity of pears determined to grade U.S. Number 1 or better in the appraisal, the quantity of such sold production exceeding the amount determined to grade U.S. Number 1 or better in the appraisal will be included as production to count under this option.
(c) Marketable production that grades less than U.S. Number 1 due to uninsurable causes not covered by this endorsement will not be reduced.
(d) Any adjustments that reduce your production to count under this option will not be applicable when determining production to count for Actual Production History purposes.
Fresh Pear Quality Adjustment Example:
You have a 100 percent share of a 20-acre pear orchard. You have a production guarantee of 15 tons/acre. You elect 100 percent of the $500/ton price election. You are only able to produce 10 tons/acre and only 7.5 tons/acre grade U.S. Number 1 or better (7.5 × 20 = 150 tons). Your indemnity would be calculated as follows:
(1) 20 acres × 15 tons per acre = 300 tons production guarantee;
(2) 300 tons production guarantee × $500/ton = $150,000 value of production guarantee;
(3) The value of fresh pear production to count is determined as follows:
(i) 200 tons harvested production minus 150 tons that graded U.S. Number 1 or better = 50 tons failing to make grade;
(ii) 50 tons failing grade/200 tons of production = 25 percent of production failing to grade U.S. Number 1;
(iii) 25 percent minus 10 percent = 15 percent in excess of 10 percent allowance failing to make grade;
(iv) 15 percent × 2 = 30 percent total quality adjustment for pears failing to grade U.S. Number 1;
(v) 200 tons production × 30 percent quality adjustment = 60 tons of pears failing to make grade;
(vi) 200 tons production minus 60 tons failing to make grade = 140 tons of quality adjusted fresh pear production to count;
(vii) 140 tons of quality adjusted fresh pear production to count × $500/ton price election = $70,000 value of fresh pear production to count;
(4) $150,000 value of production guarantee minus $70,000 value of fresh pear production to count = $80,000 value of loss;
(5) $80,000 value of loss × 100 percent share = $80,000 indemnity payment.
§ 457.112 Hybrid sorghum seed crop insurance provisions.
The Hybrid Sorghum Seed Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
FCIC policies:
Both FCIC and Reinsured Policies
If a conflict exists among the policy provisions, the order of priority is as follows:
(1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions, (§ 457.8) with (1) controlling (2), etc.
Adjusted yield. An amount determined by multiplying the county yield by the coverage level factor.
Amount of insurance per acre. A dollar amount determined by multiplying the adjusted yield by the price election you select and subtracting any minimum guaranteed payment, not to exceed the total compensation specified in the hybrid sorghum seed processor contract. If your hybrid sorghum seed processor contract contains a minimum guaranteed payment that is stated in bushels, we will convert that value to dollars by multiplying it by the price election you selected.
Approved yield. In lieu of the definition contained in the Basic Provisions, an amount FCIC determines to be representative of the yield that the female parent plants are expected to produce when grown under a specific production practice. FCIC will establish the approved yield based upon records provided by the seed company and other information it deems appropriate.
Bushel. Fifty-six pounds avoirdupois of the insured crop.
Certified seed test. A warm germination test performed on clean seed according to specifications of the “Rules for Testing Seeds” of the Association of Official Seed Analysts.
Commercial hybrid sorghum seed. The offspring produced by crossing a male and female parent plant, each having a different genetic character. This offspring is the product intended for use by an agricultural producer to produce a commercial field sorghum crop for grain or forage.
County yield. An amount contained in the actuarial documents that is established by FCIC to represent the yield that a producer of hybrid sorghum seed would be expected to produce if the acreage had been planted to commercial field sorghum.
Coverage level factor. A factor contained in the Special Provisions to adjust the county yield for commercial field sorghum to reflect the higher value of hybrid sorghum seed.
Dollar value per bushel. An amount that determines the value of any seed production to count. It is determined by dividing the amount of insurance per acre by the result of multiplying the approved yield by the coverage level percentage, expressed as a decimal.
Female parent plants. Sorghum plants that are grown for the purpose of producing commercial hybrid sorghum seed and are male sterile.
Field run. Commercial hybrid sorghum seed production before it has been processed or screened.
Good farming practices. In addition to the definition contained in the Basic Provisions, good farming practices include those practices required by the hybrid sorghum seed processor contract.
Harvest. Combining, threshing or picking of the female parent plants to obtain commercial hybrid sorghum seed.
Hybrid sorghum seed processor contract. An agreement executed in writing between the hybrid sorghum seed crop producer and a seed company containing, at a minimum:
(a) The producer’s promise to plant and grow male and female parent plants, and to deliver all commercial hybrid sorghum seed produced from such plants to the seed company;
(b) The seed company’s promise to purchase the commercial hybrid sorghum seed produced by the producer; and
(c) Either a fixed price per unit of measure (bushels, hundredweight, etc.) of the commercial hybrid sorghum seed or a formula to determine the value of such seed. Any formula for establishing the value must be based on data provided by a public third party that establishes or provides pricing information to the general public, based on prices paid in the open market (e.g., commodity futures exchanges), to be acceptable for the purpose of this policy.
Inadequate germination. Germination of less than 80 percent of the commercial hybrid sorghum seed as determined by using a certified seed test.
Insurable interest. Your share of the financial loss that occurs in the event seed production is damaged by a cause of loss specified in section 10.
Local market price. The cash price offered by buyers for any production from the female parent plants that is not considered commercial hybrid sorghum seed under the terms of this policy.
Male parent plants. Sorghum plants grown for the purpose of pollinating female parent plants.
Minimum guaranteed payment. A minimum amount (usually stated in dollars or bushels) specified in your hybrid sorghum seed processor contract that will be paid or credited to you by the seed company regardless of the quantity of seed produced.
Non-seed production. Production that does not qualify as seed production because of inadequate germination.
Planted acreage. In addition to the definition contained in the Basic Provisions, the insured crop must be planted in rows wide enough to permit mechanical cultivation, unless provided by the Special Provisions or by written agreement.
Planting pattern. The arrangement of the rows of the male and female parent plants in a field. An example of a planting pattern is four consecutive rows of female parent plants followed by two consecutive rows of male parent plants.
Practical to replant. In addition to the definition contained in the Basic Provisions, practical to replant applies to either the female or male parent plant. It will not be considered practical to replant unless production from the replanted acreage can be delivered under the terms of the hybrid sorghum seed processor contract, or the seed company agrees that it will accept the production from the replanted acreage.
Prevented planting. In addition to the definition contained in the Basic Provisions, prevented planting applies to the female and male parent plants. The male parent plants must be planted in accordance with the requirements of the hybrid sorghum seed processor contract to be considered planted.
Sample. For the purpose of the certified seed test, at least 3 pounds of randomly selected field run sorghum seed for each type or variety of commercial hybrid sorghum seed grown on the unit.
Seed company. A business enterprise that possesses all licenses for marketing commercial hybrid sorghum seed required by the state in which it is domiciled or operates, and which possesses facilities with enough storage and drying capacity to accept and process the insured crop within a reasonable amount of time after harvest. If the seed company is the insured, it must also be a corporation.
Seed production. All seed produced by female parent plants with a germination rate of at least 80 percent as determined by a certified seed test.
Type. Grain sorghum, forage sorghum, or sorghum sudan parent plants.
Variety. The name, number or code assigned to a specific genetic cross by the seed company or the Special Provisions for the insured crop in the county.
(a) For any processor contract that stipulates the amount of production to be delivered:
(1) In lieu of the definition of “basic unit” contained in the Basic Provisions, a basic unit will consist of all acreage planted to the insured crop in the county that will be used to fulfill a hybrid sorghum seed processor contract;
(2) There will be no more than one basic unit for all production contracted with each processor contract;
(3) In accordance with section 12, all production from any basic unit in excess of the amount under contract will be included as production to count if such production is applied to any other basic unit for which the contracted amount has not been fulfilled; and
(4) Optional units will not be established.
(b) For any processor contract that stipulates a number of acres to be planted, the provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may select only one price election for all the hybrid sorghum seed in the county insured under this policy unless the Special Provisions provide different price elections by type or variety, in which case you may elect one price election for each hybrid sorghum seed type or variety designated in the Special Provisions. The price election you choose for each type or variety must have the same percentage relationship to the maximum price offered by us for each type or variety. For example, if you choose 100 percent of the maximum price election for one specific type or variety, you must also choose 100 percent of the maximum price election for all other types or varieties.
(b) The production reporting requirements contained in section 3 of the Basic Provisions are not applicable to this contract.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are March 15.
In addition to the requirements of section 6 of the Basic Provisions, you must:
(a) Report by type and variety, the location and insurable acreage of the insured crop;
(b) Report any acreage that is uninsured, including that portion of the total acreage occupied by male parent plants; and
(c) Certify that you have a hybrid sorghum seed processor contract and report the amount, if any, of any minimum guaranteed payment.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the female parent plants in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are grown under a hybrid sorghum seed processor contract executed before the acreage reporting date;
(3) That are planted for harvest as commercial hybrid sorghum seed in accordance with the requirements of the hybrid sorghum seed processor contract and the production management practices of the seed company; and
(4) That are not (unless allowed by the Special Provisions or by written agreement):
(i) Planted with a mixture of female and male parent seed in the same row;
(ii) Planted for any purpose other than for commercial hybrid sorghum seed;
(iii) Interplanted with another crop; or
(iv) Planted into an established grass or legume.
(b) An instrument in the form of a “lease” under which you retain control of the acreage on which the insured crop is grown and that provides for delivery of the crop under substantially the same terms as a hybrid sorghum seed processor contract will be treated as a contract under which you have an insurable interest in the crop.
(c) A commercial hybrid sorghum seed producer who is also a commercial hybrid sorghum seed company may be able to insure the hybrid sorghum seed crop if the following requirements are met:
(1) The seed company has an insurable interest in the hybrid sorghum seed crop;
(2) Prior to the sales closing date, the Board of Directors of the seed company has executed and adopted a corporate resolution containing the same terms as an acceptable hybrid sorghum seed processor contract. This corporate resolution will be considered a contract under the terms of this policy;
(3) Sales records for at least the previous years’ seed production must be provided to confirm that the seed company has produced and sold seed. If such records are not available, the crop may be insured under the Coarse Grains Crop Provisions with a written agreement; and
(4) Our inspection reveals that the storage and drying facilities satisfy the definition of a seed company.
(d) Any of the insured crop that is under contract with different seed companies may be insured under separate policies with different insurance providers provided all acreage of the insured crop in the county is insured. If you elect to insure the insured crop with different insurance providers, you agree to pay separate administrative fees for each insurance policy.
In addition to the provisions of section 9 of the Basic Provisions, we will not insure any acreage of the insured crop:
(a) Planted and occupied exclusively by male parent plants;
(b) Not in compliance with the rotation requirements contained in the Special Provisions or, if applicable, required by the hybrid sorghum seed processor contract; or
(c) If either the female or male parent plants are damaged before the final planting date and we determine that insured crop is practical to replant but it is not replanted.
(a) In addition to the provisions of section 11 of the Basic Provisions, insurance attaches upon completion of planting of:
(1) The female parent plant seed on or before the final planting date designated in the Special Provisions, except as allowed in section 16 of the Basic Provisions; and
(2) The male parent plant seed.
(b) In accordance with the provisions of section 11 of the Basic Provisions, the calendar date for the end of the insurance period is the November 30 immediately following planting.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of loss contained in section 10(a) (1) through (7) that occurs during the insurance period.
(b) In addition to the causes of loss excluded by section 12 of the Basic Provisions, we will not insure against any loss of production due to:
(1) The use of unadapted, incompatible, or genetically deficient male or female parent plant seed;
(2) Frost or freeze after the date set by the Special Provisions;
(3) Failure to follow the requirements stated in the hybrid sorghum seed processor contract and production management practices of the seed company;
(4) Inadequate germination, even if resulting from an insured cause of loss, unless you have provided adequate notice as required by section 11(b)(1); or
(5) Failure to plant the male parent plant seed at a time or in a manner sufficient to assure adequate pollination of the female parent plants, unless you are prevented from planting the male parent plant seed by an insured cause of loss.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples of at least one complete planting pattern of the male and female parent plant rows that extend the entire length of each field in the unit. If you are going to destroy any acreage of the insured crop that will not be harvested, the samples must not be destroyed until after our inspection.
(b) In addition to the requirements of section 14 of the Basic Provisions:
(1) You must give us notice of probable loss at least 15 days before the beginning of harvest if you anticipate inadequate germination on any unit; and
(2) You must provide a completed copy of your hybrid sorghum seed processor contract unless we have determined it has already been provided by the seed company, and the seed company certifies that such contract is used for all its producers without any waivers or amendments.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) You will not receive an indemnity payment on a unit if the seed company refuses to provide us with records we require to determine the dollar value per bushel of production for each variety.
(c) In the event of loss or damage covered by this policy, we will settle your claim on any unit by:
(1) Multiplying the insured acreage by its respective amount of insurance per acre, by type and variety if applicable;
(2) Totaling the results of section 12(c)(1) if there are more than one type or variety;
(3) Multiplying the total seed production to count (see section 12(d)) for each type and variety of commercial hybrid sorghum seed by the applicable dollar value per bushel for that type or variety;
(4) Multiplying the total non-seed production to count (see section 12(e)) for each type and variety by the applicable local market price determined on the earlier of the date the non-seed production is sold or the date of final inspection;
(5) Totaling the results of sections 12(c)(3) and 12(c)(4) by type and variety;
(6) Subtracting the result of section 12(c)(5) from the result of section 12(c)(1) if there is only one type or variety, or subtracting the result of 12(c)(5) from the result of section 12(c)(2) if there are more than one type or variety; and
(7) Multiplying the result of section 12(c)(6) by your share.
You have a 100 percent share in 50 acres insured for the development of type “A” hybrid sorghum seed in the unit, with an amount of insurance per acre guarantee of $361 (county yield of 170 bushels times a coverage level factor of .867 for the 65 percent coverage level, times a price election of $2.45 per bushel, minus the minimum guaranteed payment of zero). Your seed production was 1,400 bushels and the dollar value per bushel was $3.47. Your non-seed production was 100 bushels with a local market value of $2.00 per bushel. Your indemnity would be calculated as follows:
(1) 50 acres × $361 = $18,050 amount of insurance guarantee;
(3) 1,400 bushels × $3.47 = $4,858 value of seed production;
(4) 100 bushels of non-seed × $2.00 = $200 of non-seed production;
(5) $4,858 + $200 = $5,058;
(6) $18,050 − $5,058 = $12,992; and
(7) $12,992 × 100 percent share = $12,992 indemnity payment.
You also have a 100 percent share in 50 acres insured for the development of type “B” hybrid sorghum seed in the unit, with an amount of insurance per acre guarantee of $340 (county yield of 160 bushels times a coverage level factor of .867 for the 65 percent coverage level, times a price election of $2.45 per bushel, minus the minimum guaranteed payment of zero). You harvested 1,200 bushels and the dollar value per bushel for the harvested amount was $4.63. You also harvested 200 bushels of non-seed with a market value of $2.00 per bushel. Your indemnity would be calculated as follows:
(1) 50 acres × $361 = $18,050 amount of insurance guarantee for type “A” and 50 acres × $340 = $17,000 amount of insurance guarantee for type “B”;
(2) $18,050 + $17,000 = $35,050 amount of insurance guarantee;
(3) 1,400 bushels × $3.47 = $4,858 value of seed production for type “A” and 1,200 bushels × $4.63 = $5,556 value of seed production for type “B”;
(4) 100 bushels of non-seed × $2.00 = $200 of non-seed production for type “A” and 200 bushels of non-seed × $2.00 = $400 of non-seed production for type “B”
(5) $4,858 + $200 + $5,556 + $400 = $11,014 value of production to count;
(6) $35,050 − $11,014 = $24,036; and
(7) $24,036 × 100 percent share = $24,036 indemnity payment.
(d) Production to be counted as seed production will include:
(1) All appraised production as follows:
(i) Not less than the amount of insurance per acre for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Mature unharvested production with a germination rate of at least 80 percent of the commercial hybrid sorghum seed as determined by a certified seed test. Any such production may be adjusted in accordance with section 12(f);
(iv) Immature appraised production;
(v) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) Harvested production that you deliver as commercial hybrid sorghum seed to the seed company stated in your hybrid sorghum seed processor contract, regardless of quality, unless the production has inadequate germination.
(e) Production to be counted as non-seed production will include all harvested or mature appraised production that does not qualify as seed production to count as specified in section 12(d). Any such production may be adjusted in accordance with section 12(f).
(f) For the purpose of determining the quantity of mature production:
(1) Commercial hybrid sorghum seed production will be:
(i) Increased 0.12 percent for each 0.1 percentage point of moisture below 13.0 percent; or
(ii) Decreased 0.12 percent for each 0.1 percentage point of moisture in excess of 13.0 percent.
(2) When records of commercial hybrid sorghum seed production provided by the seed company have been adjusted to a basis of 13.0 percent moisture and 56 pound avoirdupois bushels, section 12(f)(1) above will not apply to harvested production. In such cases, records of the seed company will be used to determine the amount of production to count, provided that the moisture and weight of such production are calculated on the same basis as that used to determine the approved yield.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your amount of insurance for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.113 Coarse grains crop insurance provisions.
The Coarse Grains Crop Insurance Provisions for the 2022 and succeeding crop years are as follows:
Coarse grains. Corn, grain sorghum, and soybeans.
Following another crop (FAC). A cropping practice, as specified in the Special Provisions, in which a crop is planted following another crop.
Grain sorghum. The crop defined as sorghum under the United States Grain Standards Act.
Harvest. Combining, threshing, or picking the insured crop for grain, or cutting for hay, silage, earlage, snaplage, or fodder.
Local market price. The cash grain price per bushel for the U.S. No. 2 yellow corn, U.S. No. 2 grain sorghum, or U.S. No. 1 soybeans, offered by buyers in the area in which you normally market the insured crop. The local market price will reflect the maximum limits of quality deficiencies allowable for the U.S. No. 2 grade for yellow corn and grain sorghum, or U.S. No. 1 grade for soybeans. Factors not associated with grading under the Official United States Standards for Grain, including but not limited to protein and oil, will not be considered.
Not following another crop (NFAC). A cropping practice, as specified in the Special Provisions, in which a crop is planted not following another crop.
Planted acreage. In addition to the definition contained in the Basic Provisions, coarse grains must initially be planted in rows, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Production guarantee (per acre). In lieu of the definition contained in the Basic Provisions, the number of bushels (tons for corn insured as silage) determined by multiplying the approved yield per acre by the coverage level percentage you elect.
Silage. A product that results from severing the plant from the land and chopping it for the purpose of livestock feed.
Ton. Two thousand (2000) pounds avoirdupois.
(a) In addition to the requirements of section 34(a) of the Basic Provisions, you may elect separate enterprise units for FAC or NFAC cropping practices if these cropping practices are allowed by the actuarial documents. If you elect enterprise units for these cropping practices, you may not elect enterprise or optional units by irrigation practices.
(1) You may elect one enterprise unit for all FAC cropping practices or one enterprise unit for all NFAC cropping practices, or separate enterprise units for both practices, unless otherwise specified in the Special Provisions. For example: You may choose an enterprise unit for all FAC acreage (soybeans irrigated practice and non-irrigated practice) and an enterprise unit for all NFAC acreage (soybeans irrigated practice and non-irrigated practice).
(2) You are only eligible if both FAC and NFAC cropping practices are allowed by the actuarial documents for each irrigation practice you use. If FAC and NFAC cropping practices are only allowed for the non-irrigated practice, separate enterprise units for FAC and NFAC cropping practices are not available if you use the irrigated practice; but if you use only non-irrigated FAC and NFAC cropping practices, separate enterprise units for non-irrigated FAC and NFAC cropping practices are available.
(3) You must separately meet the requirements in section 34(a)(4) for each enterprise unit.
(4) If you elected separate enterprise units for both cropping practices and we discover you do not qualify for an enterprise unit for one or the other cropping practice and such discovery is made:
(i) On or before the acreage reporting date, you may elect to insure:
(A) One enterprise unit for all FAC or NFAC cropping practices provided you meet the requirements in section 34(a)(4), and basic or optional units for the other cropping practice, whichever you report on your acreage report and qualify for;
(B) One enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4); or
(C) Basic or optional units for all acreage of the crop in the county, whichever you report on your acreage report and qualify for; or
(ii) At any time after the acreage reporting date, your unit structure will be one enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4). Otherwise, we will assign the basic unit structure.
(5) If you elected an enterprise unit on one cropping practice for FAC or NFAC and a different unit structure on the other cropping practice and we discover you do not qualify for an enterprise unit for the FAC or NFAC cropping practice and such discovery is made:
(i) On or before the acreage reporting date, your unit division will be based on basic or optional units, whichever you report on your acreage report and qualify for; or
(ii) At any time after the acreage reporting date, we will assign the basic unit structure.
(b) Instead of establishing optional units as provided in section 34(c) of the Basic Provisions, if allowed by the actuarial documents, you may have separate optional units for the FAC cropping practice and the NFAC cropping practice. These optional units will be by section, section equivalent, or FSA FN and by the FAC cropping practice and the NFAC cropping practice. These optional units cannot be further divided by irrigated and non-irrigated acreage or by acreage insured under an organic farming practice.
(c) If FAC or NFAC cropping practices are only available by written agreement, separate enterprise units or optional units for FAC or NFAC cropping practices are not available.
In addition to the requirements of section 3 of the Basic Provisions, you must elect to insure your corn, grain sorghum, or soybeans with either revenue protection or yield protection by the sales closing date.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State and county | Cancellation and termination dates |
|---|---|
| (a) For corn and grain sorghum: | |
| Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, Karnes, Goliad, Victoria, and Jackson Counties, Texas, and all Texas counties lying south thereof | January 31. |
| El Paso, Hudspeth, Culberson, Reeves, Loving, Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom Green, Concho, McCulloch, San Saba, Mills, Hamilton, Bosque, Johnson, Tarrant, Wise, Cooke Counties, Texas, and all Texas counties lying south and east thereof to and including Terrell, Crockett, Sutton, Kimble, Gillespie, Blanco, Comal, Guadalupe, Gonzales, De Witt, Lavaca, Colorado, Wharton, and Matagorda Counties, Texas | February 15. |
| Alabama; Arizona; Arkansas; California; Florida; Georgia; Louisiana; Mississippi; Nevada; North Carolina; and South Carolina | February 28. |
| All other Texas counties and all other states | March 15. |
| (b) For soybeans: | |
| Jackson, Victoria, Goliad, Bee, Live Oak, McMullen, LaSalle, and Dimmit Counties, Texas and all Texas counties lying south thereof | January 31. |
| Alabama; Arizona; Arkansas; California; Florida; Georgia; Louisiana; Mississippi; Nevada; North Carolina; and South Carolina; and El Paso, Hudspeth, Culberson, Reeves, Loving, Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom Green, Concho, McCulloch, San Saba, Mills, Hamilton, Bosque, Johnson, Tarrant, Wise, Cooke Counties, Texas, and all Texas counties lying south and east thereof to and including Maverick, Zavala, Frio, Atascosa, Karnes, De Witt, Lavaca, Colorado, Wharton, and Matagorda Counties, Texas | February 28. |
| All other Texas counties and all other states | March 15. |
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be each coarse grain crop you elect to insure for which premium rates are provided by the actuarial documents:
(1) In which you have a share;
(2) That is adapted to the area based on days to maturity and is compatible with agronomic and weather conditions in the area; and
(3) That is not (unless allowed by the Special Provisions or by written agreement):
(i) Interplanted with another crop except as allowed in section 6(b)(1); or
(ii) Planted into an established grass or legume.
(b) For corn only, in addition to the provisions of section 6(a), the corn crop insured will be all corn that is:
(1) Planted for harvest either as grain or as silage (see section 6(c)). A mixture of corn and sorghum (grain or forage-type) will be insured as corn silage if the sorghum does not constitute more than 20 percent of the plants;
(2) Yellow dent or white corn, including mixed yellow and white, waxy or high-lysine corn, high-oil corn blends containing mixtures of at least 90 percent high yielding yellow dent female plants with high-oil male pollinator plants, or commercial varieties of high-protein hybrids, and excluding:
(i) High-amylose, high-oil, or high-protein (except as authorized in section 6(b)(2)), flint, flour, Indian, blue corn, a variety genetically adapted to provide forage for wildlife, or any other open pollinated corn, unless the Special Provisions or a written agreement allows insurance of such excluded crops.
(ii) A variety of corn adapted for silage use only when the corn is reported for insurance as grain.
(c) For corn only, if the actuarial documents for the county provide a premium rate for:
(1) Both grain and silage, all insurable acreage will be insured as the type or types reported by you on or before the acreage reporting date;
(2) Grain but not silage, all insurable acreage will be insured as grain unless a written agreement allows insurance on all or a portion of the insurable acreage as silage; or
(3) Silage but not grain, all insurable corn acreage will be insured as silage unless a written agreement allows insurance on all or a portion of the insurable acreage as grain.
(d) For grain sorghum only, in addition to the provisions of section 6(a), the grain sorghum crop insured will be all of the grain sorghum in the county:
(1) That is planted for harvest as grain;
(2) That is a combine-type hybrid grain sorghum (grown from hybrid seed); and
(3) That is not a dual-purpose type of grain sorghum (a type used for both grain and forage), unless a written agreement allows insurance of such grain sorghum.
(e) For soybeans only, in addition to the provisions of section 6(a), the soybean crop insured will be all of the soybeans in the county that are planted for harvest as soybeans.
In addition to the provisions of section 9 of the Basic Provisions, any acreage of the insured crop damaged before the final planting date, to the extent that a majority of producers in the area would not normally further care for the crop, must be replanted unless we agree that it is not practical to replant.
In accordance with the provisions of section 11 of the Basic Provisions, unless otherwise specified in the actuarial documents, the calendar date for the end of the insurance period is the date immediately following planting as follows:
| (a) For corn insured as grain: | |
| (1) Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, Karnes, Goliad, Victoria, and Jackson Counties, Texas, and all Texas counties lying south thereof | September 30. |
| (2) Clark, Cowlitz, Grays Harbor, Island, Jefferson, King, Kitsap, Lewis, Pierce, Skagit, Snohomish, Thurston, Wahkiakum, and Whatcom Counties, Washington | October 31. |
| (3) All other counties and states | December 10. |
| (b) For corn insured as silage: | |
| (1) Connecticut, Delaware, Idaho, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and West Virginia | October 20. |
| (2) All other states | September 30. |
| (c) For grain sorghum: | |
| (1) Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, Karnes, Goliad, Victoria, and Jackson Counties, Texas, and all Texas counties lying south thereof | September 30. |
| (2) All other Texas counties and all other states | December 10. |
| (d) For soybeans: All states | December 10. |
In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss which occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss specified in sections 9(a) through (g) that also occurs during the insurance period; or
(i) For revenue protection, a change in the harvest price from the projected price, unless FCIC can prove the price change was the direct result of an uninsured cause of loss specified in section 12(a) of the Basic Provisions.
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that limit the amount of a replant payment to the actual cost of replanting, the amount of any replanting payment will be determined in accordance with these Crop Provisions;
(2) Except as specified in section 10(a)(1), you must comply with all requirements regarding replanting payments contained in section 13 of the Basic Provisions; and
(3) The insured crop must be damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage.
(b) Unless otherwise specified in the Special Provisions, the amount of the replanting payment per acre will be the lesser of 20 percent of the production guarantee or the number of bushels (tons for corn insured as silage) for the applicable crop specified below, multiplied by your projected price, multiplied by your share:
(1) 8 bushels for corn grain;
(2) 1 ton for corn silage;
(3) 7 bushels for grain sorghum; and
(4) 3 bushels for soybeans.
(c) When the crop is replanted using a practice that is uninsurable for an original planting, the liability on the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
(d) If the acreage is replanted to an insured crop type that is different than the insured crop type originally planted on the acreage:
(1) The production guarantee, premium, and projected price and harvest price, as applicable, will be adjusted based on the replanted type;
(2) Replanting payments will be calculated using your projected price and production guarantee for the crop type that is replanted and insured; and
(3) A revised acreage report will be required to reflect the replanted type, as applicable.
(a) Representative samples are required in accordance with section 14 of the Basic Provisions.
(b) For any corn unit that has separate dates for the end of the insurance period (grain and silage), in lieu of the requirement contained in section 14 of the Basic Provisions to provide notice within 72 hours of your initial discovery of damage (but not later than 15 days after the end of the insurance period), you must provide notice within 72 hours of your initial discovery of damage (but not later than 15 days after the latest end of the insurance period applicable to the unit).
(c) If you will harvest any acreage in a manner other than as you reported on your acreage report (e.g., you reported planting it to harvest as grain but will harvest the acreage for hay, silage, earlage, snaplage, or fodder, or you reported planting it to harvest as silage but will harvest the acreage for grain, hay, earlage, snaplage, or fodder), you must notify us before harvest begins so the acreage can be appraised as the type reported on your acreage report to determine production to count that is used for claim purposes. Failure to timely provide notice will result in production to count determined in accordance with section 12(c)(1)(i)(E).
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the number of insured acres of each insured crop or type, as applicable, by your respective:
(i) Yield protection guarantee (per acre) if you elected yield protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue protection;
(2) Totaling the results of section 12(b)(1)(i) or 12(b)(1)(ii), whichever is applicable;
(3) Multiplying the production to count of each insured crop or type, as applicable, by your respective:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 12(b)(3)(i) or 12(b)(3)(ii), whichever is applicable;
(5) Subtracting the result of section 12(b)(4) from the result of section 12(b)(2); and
(6) Multiplying the result of section 12(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of corn in the unit with a production guarantee (per acre) of 115 bushels, your projected price is $4.58, your harvest price is $4.53, and your production to count is 5,000 bushels.
If you elected yield protection:
(1) 50 acres × (115 bushel production guarantee × $4.58 projected price) = $26,335.00 value of the production guarantee
(3) 5,000 bushel production to count × $4.58 projected price = $22,900.00 value of the production to count
(5) $26,335.00−$22,900.00 = $3,435.00
(6) $3,435.00 × 1.000 share = $3,435.00 indemnity; or
If you elected revenue protection:
(1) 50 acres × (115 bushel production guarantee × $4.58 projected price) = $26,335.00 revenue protection guarantee
(3) 5,000 bushel production to count × $4.53 harvest price = $22,650.00 value of the production to count
(5) $26,335.00−$22,650.00 = $3,685.00
(6) $3,685.00 × 1.000 share = $3,685.00 indemnity.
(c) The total production to count (in bushels for corn insured as grain or in tons for corn insured as silage) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee, or for revenue protection, not less than the amount of production that when multiplied by the harvest price equals the revenue protection guarantee (per acre) for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes;
(D) For which you fail to provide records of production that are acceptable to us; or
(E) For which you fail to give us notice before harvest begins if you report planting the corn to harvest as grain but harvest it as silage or you report planting the corn to harvest as silage but harvest it as grain.
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with section 12(d)); and
(iv) Potential production on insured acreage you will put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count.); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature coarse grain production (excluding corn insured as silage) may be adjusted for excess moisture and quality deficiencies. If moisture adjustment is applicable it will be made prior to any adjustment for quality. Corn insured as silage will be adjusted for excess moisture and quality only as specified in section 12(e).
(1) Production will be reduced by 0.12 percent for each 0.1 percentage point of moisture in excess of:
(i) 15 percent for corn (If moisture exceeds 30 percent, production will be reduced 0.2 percent for each 0.1 percentage point above 30 percent);
(ii) 14 percent for grain sorghum; and
(iii) 13 percent for soybeans.
We may obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality, in accordance with the Official United States Standards for Grain, result in:
(A) Corn not meeting the grade requirements for U.S. No. 4 (grades U.S. No. 5 or worse) because of test weight or kernel damage (excluding heat damage) or having a musty, sour, or commercially objectionable foreign odor;
(B) Grain sorghum not meeting the grade requirements for U.S. No. 4 (grades U.S. Sample grade) because of test weight or kernel damage (excluding heat damage) or having a musty, sour, or commercially objectionable foreign odor (except smut odor), or meets the special grade requirements for smutty grain sorghum; or
(C) Soybeans not meeting the grade requirements for U.S. No. 4 (grades U.S. Sample grade) because of test weight or kernel damage (excluding heat damage) or having a musty, sour, or commercially objectionable foreign odor (except garlic odor), or which meet the special grade requirements for garlicky soybeans; or
(ii) Substances or conditions are present that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a cause of loss against which insurance is provided under these crop provisions;
(ii) All determinations of these deficiencies, substances, or conditions are made using samples of the production obtained by us or by a disinterested third party approved by us;
(iii) With regard to deficiencies in quality (except test weight, which may be determined by our loss adjuster), the samples are analyzed by:
(A) A grain grader licensed under the United States Grain Standards Act or the United States Warehouse Act;
(B) A grain grader licensed under State law and employed by a warehouse operator who has a storage agreement with the Commodity Credit Corporation; or
(C) A grain grader not licensed under State law, but who is employed by a warehouse operator who has a commodity storage agreement with the Commodity Credit Corporation and is in compliance with State law regarding warehouses; and
(iv) With regard to substances or conditions injurious to human or animal health, the samples are analyzed by a laboratory approved by us.
(4) Coarse grain production that is eligible for quality adjustment, as specified in sections 12(d)(2) and (3), will be reduced by the quality adjustment factor calculated in accordance with the Special Provisions.
(e) For corn insured as silage:
(1) Whenever our appraisal of grain content is less than 4.5 bushels of grain per ton of silage, the silage production will be reduced by 1 percentage point for each 0.1 of a bushel less than 4.5 bushels per ton (If we cannot make a grain appraisal before harvest and you do not leave a representative unharvested sample, in accordance with the policy no reduction for grain-deficient silage will be made.); and
(2) If the normal silage harvesting period has ended, or for any acreage harvested as silage or appraised as silage after the calendar date for the end of the insurance period as specified in section 8(b), we will increase the silage production to count to a 65 percent moisture equivalent to reflect the normal moisture content of silage harvested during the normal silage harvesting period.
(f) Any production harvested from plants growing in the insured crop may be counted as production of the insured crop on a weight basis.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§§ 457.114-457.115 [Reserved]
§ 457.116 Sugarcane crop insurance provisions.
The Sugarcane Crop Insurance Provisions for the 2011 and succeeding crop years are as follows:
Crop year. The period within which the insured sugarcane is normally grown and designated by the calendar year in which the harvest of sugarcane normally begins in the county.
Harvest. Cutting and removing the mature sugarcane from the field.
Irrigated practice. A method of producing a crop by which water is artificially applied during the growing season by appropriate systems and at the proper times, with the intention of providing the quantity of water needed to produce at least the yield used to establish the irrigated production guarantee on the irrigated acreage planted to the insured crop.
Local market price. The price per pound for raw sugar offered by buyers in the area in which you normally market the sugarcane.
Plant cane. The insured crop which grows from seed planted for the crop year.
Stubble cane. The insured crop which grows from the stubble of sugarcane that was harvested the previous crop year.
Sugarcane. The grass, Saccharum officinarum, that is grown to produce sugar.
(a) In addition to the requirements of section 3 (Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities) of the Basic Provisions (§ 457.8), you may select only one price election for all the sugarcane in the county insured under this policy.
(b) Instead of reporting your sugarcane production for the previous crop year as required by subsection 3(f) of the Basic Provisions (§ 457.8), there is a lag period of one year and you are required to report production from two crop years previously, e.g., 1994 crop year production must be reported by the required date for the 1996 crop year.
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is June 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are September 30.
(a) In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the sugarcane in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That is grown for processing for sugar or for seed; and
(3) That is not interplanted with another crop, unless allowed by a written agreement.
(b) In addition to the crop listed as not insured in section 8(b) of the Basic Provisions (§ 457.8), we will not insure any sugarcane:
(1) That was damaged the previous crop year to the extent the sugarcane is unable to produce the yield used to establish the production guarantee for the unit for the current crop year; or
(2) That exceeds the age limitations (by variety, if applicable) contained in the Special Provisions , unless we agree in writing to insure such acreage. An agreement in writing will not be provided unless, after an appraisal, we determine that the crop is able to produce at least the yield used to establish the production guarantee for the unit for the current crop year.
Section 9(a)(2)(iv) of the Basic Provisions (§ 457.8), is not applicable to the Sugarcane Crop Insurance Provisions.
(a) In addition to the provisions of section 11 of the Basic Provisions (§ 457.8), insurance attaches:
(1) On the later of the day we accept your application or at the time of planting for plant cane;
(2) On the first day following harvest of the previous crop for stubble cane except as contained in sections 7(a)(3) and (4);
(3) On the later of April 15 or 30 days following harvest of the previous crop for stubble cane damaged during the previous crop year in all states (except Louisiana); and
(4) On the later of April 30 or 30 days following harvest of the previous crop for stubble cane damaged during the previous crop year in Louisiana.
(b) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8), the calendar date for the end of the insurance period is:
(1) January 31 in Louisiana; and
(2) April 30 in all other states.
In accordance with the provisions of section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if applicable, due to an unavoidable cause of loss occurring within the insurance period.
(a) In addition to your duties under section 14 of the Basic Provisions (§ 457.8), in the event of damage or loss:
(1) All sugarcane stubble must remain intact for our inspection; and
(2) You must give us notice at least 15 days before you begin cutting any sugarcane for seed. Your notice must include the unit number and the number of acres you intend to harvest as seed. Failure to give us timely notice will cause the acreage cut for seed to be considered as put to another use without consent. The production to count for such acreage will not be less than the production guarantee.
(3) You must request an appraisal if any time during the crop year sugarcane acreage cut for seed will not produce at least the production guarantee so we can determine the production to count. If you do not request an appraisal, the production to count for such acreage will be the production guarantee.
(b) In accordance with the requirements of section 14 (Duties in the Event of Damage or Loss) of the Basic Provisions (§ 457.8), if you initially discover damage to any insured crop within 15 days of, or during harvest, you must leave representative samples of the unharvested crop for our inspection. The representative samples of the unharvested crop must be at least 10 feet wide and extend the entire length of each field in the unit. The stubble must not be destroyed and the required samples must not be harvested until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production:
(1) For any optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim on any unit by:
(1) Multiplying the insured acreage by the production guarantee;
(2) Subtracting from this the total production to count;
(3) Multiplying the remainder by your price election; and
(4) Multiplying this result by your share.
(1) 100 acres × 3,900 pound production guarantee = 390,000 pound production guarantee;
(2) 390,000 pound production guarantee−200,000 pounds harvested production = 190,000 pound production loss;
(3) 190,000 pound production loss × $0.12 price election = $22,800 loss; and
(4) $22,800 loss × 100 percent share = $22,800 indemnity payment.
(1) 100 acres × 3,900 pound production guarantee = 390,000 pound production guarantee;
(2) 390,000 pound production guarantee−278,000 (200,000 pounds harvested production + 78,000 pounds production for putting acreage to another use without consent, (20 acres × 3,900 pound production guarantee per acre)) = 112,000 pound production loss;
(3) 112,000 pound production loss × $0.12 price election = $13,440 loss; and
(4) $13,440 loss × 100 percent share = $13,440 indemnity payment.
(c) The total production (pounds of sugar) to count from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes;
(D) For which you fail to provide records of production that are acceptable to us; or
(E) On which the sugarcane stubble is destroyed within 15 days after harvest is completed without our consent;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production;
(iv) Potential production on insured acreage harvested for seed (see section 9(a)(3));
(v) Potential production on insured acreage you want to put to another use or you wish to abandon and no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end if you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us. (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count.); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from insurable acreage. Final records of sugar production will be used to determine the amount of production to count. Preliminary mill estimates will not be used.
(d) Harvested sugarcane may be adjusted for low quality if it is damaged by one or more freezes occurring within the insurance period to the extent that it cannot be processed for sugar by the boiling house operation. The amount of production to count for such sugarcane will be determined by dividing the dollar value of the damaged production by the local market price per pound for raw sugar. The prices used for this adjustment will be determined on the earlier of the date such quality-adjusted production is sold or the date of final inspection for the unit.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.117 Forage production crop insurance provisions.
The Forage Production Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Both FCIC and Reinsured Policies
Adequate stand. The number shown in the Special Provisions, representing:
(a) For forage containing 60 percent or more alfalfa, the minimum required number of live alfalfa stems per square foot that are two inches or greater in height; or
(b) For forage containing less than 60 percent alfalfa, the normal planting density.
Air-dry forage. Forage that has dried in windrows by natural means to less than 13 percent moisture before being put into stacks or bales.
Crop year. The period from the date insurance attaches until harvest is normally completed, which is designated by the calendar year in which the majority of the forage is normally harvested.
Cutting. The severance of the forage plant from its roots.
Fall planted. A forage crop seeded after June 30, except when specified in the Special Provisions.
Forage. Planted perennial alfalfa, perennial red clover, perennial grasses, or a mixture thereof, or other species as shown in the Actuarial Documents.
Harvest. Removal of forage from the windrow or field. Grazing will not be considered harvested.
Normal planting density. The minimum number of live plants per square foot as shown in the Special Provisions.
Spring planted. A forage crop seeded before July 1, except when specified in the Special Provisions.
Ton. Two thousand (2,000) pounds avoirdupois.
Windrow. Forage that is cut and placed in a row.
Year of establishment. The period between seeding and when the forage crop has developed an adequate stand. The year of establishment is determined by the date of seeding. The year of establishment for spring planted forage is designated by the calendar year in which seeding occurred. The year of establishment for fall planted forage is designated by the calendar year after the year in which the crop was planted. Insurance under this policy does not attach until after the year of establishment. Insurance during the year of establishment may be available under the forage seeding policy.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may only select one price election for all the forage in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may select one price election for each forage type designated in the actuarial documents. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for a specific type, you must also choose 100 percent of the maximum price election for all other types.
(b) You must report the total production harvested from insurable acreage for all cuttings for each unit by the production reporting date.
(c) Separate guarantees will be determined by forage type, as applicable.
In accordance with section 4 of the Basic Provisions, the contract change date is June 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State | Cancellation/ termination date |
|---|---|
| Arizona and California | October 31. |
| All other states | September 30. |
In lieu of the provisions of section 6(a) of the Basic Provisions, a report of all insured acreage of forage production must be submitted on or before each forage production acreage reporting date specified in the Special Provisions.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the forage in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That is not grown with the intent to be grazed, or grazed at any time during the insurance period; and
(3) That follows a year of establishment that results in an adequate stand as shown in the Special Provisions.
(b) In addition to the crops listed as not insured in section 8 of the Basic Provisions, we will not insure any forage that:
(1) Does not have an adequate stand at the beginning of the insurance period;
(2) Is grown with a non-forage crop; or
(3) Exceeds the age limitations for forage stands contained in the Special Provisions.
In lieu of the provisions of section 11 of the Basic Provisions:
(a) Insurance attaches on acreage with an adequate stand on the applicable date shown in the actuarial documents; and
(b) Forage production insurance ends at the earliest of:
(1) Total destruction of the forage crop;
(2) Removal from the windrow or the field for each cutting;
(3) Final adjustment of a loss;
(4) The date grazing commences on the forage crop;
(5) Abandonment of the forage crop; or
(6) The end of the insurance period date shown in the actuarial documents.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(b) In addition to the causes of loss specifically excluded in section 12 of the Basic Provisions, we will not insure against damage of loss of production that occurs after harvest.
In addition to the requirements of section 14 of the Basic Provisions, the following will apply:
(a) You must notify us within 3 days of the date cutting should have started if the insured crop will not be harvested;
(b) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal;
(c) If you intend to claim an indemnity on any unit, you must notify us at least 15 days prior to the beginning of harvest if you previously gave notice in accordance with section 14 of the Basic Provisions so that we may inspect the damaged production. You must not destroy the damaged crop until after we have given you written consent to do so. If you fail to meet the requirements of this section, and such failure results in our inability to inspect the damaged production, all such production will be considered undamaged and will be included as production to count; and
(d) You must notify us at least 5 days before grazing of insured forage begins so we can conduct an appraisal to determine production to count. Failure to give timely notice that the acreage will be grazed will result in an appraised amount of production to count of not less than the production guarantee per acre.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type, by its respective production guarantee;
(2) Multiplying each result in section 10(b)(1) by the respective price election you selected;
(3) Totaling the results of each crop type in section 10(b)(2);
(4) Multiplying the total production to be counted of each type, if applicable, (see section 10(c)) by the respective price election you selected;
(5) Totaling the results of each crop type in section 10(b)(4);
(6) Subtracting the result in section 10(b)(5) from the result in section 10(b)(3); and
(7) Multiplying the result in section 10(b)(6) by your share.
Assume you have a 100 percent share in 100 acres of type A forage in the unit, with a guarantee of 3.0 tons per acre and a price election of $100 per ton. Due to adverse weather you were only able to harvest 50.0 tons. Your indemnity would be calculated as follows:
1. 100 acres type A × 3 tons = 300-ton guarantee;
2 & 3. 300 tons × $100 price election = $30,000 total value guarantee;
4 & 5. 50 tons production to count × $100 price election = $5,000 total value of production to count;
6. $30,000 value guarantee − $5,000 = $25,000 loss; and
7. $25,000 × 100 percent share = $25,000 indemnity payment.
Example 2
Assume you also have a 100 percent share in 100 acres of type B forage in the same unit, with a guarantee of 1.0 ton per acre and a price election of $90 per ton. Due to adverse weather you were only able to harvest 5.0 tons. Your total indemnity for forage production for both types A and B in the same unit would be calculated as follows:
1. 100 acres × 3 tons = 300-ton guarantee for type A and 100 acres × 1 ton = 100-ton guarantee for type B;
2. 300-ton guarantee × $100 price election = $30,000 total value of the guarantee for type A and 100-ton guarantee × $90 price election = $9,000 total value of the guarantee for type B;
3. $30,000 + $9,000 = $39,000 total value of the guarantee;
4. 50 tons × $100 price election = $5,000 total value of production to count for type A; and 5 tons × $90 price election = $450 total value of production to count for type B;
5. $5,000 + $450 = $5,450 total value of production to count for types A and B;
6. $39,000 − $5,450 = $33,550 loss; and
7. $33,550 loss × 100 percent share = $33,550 indemnity payment.
(c) The total production to count (in tons) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production;
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached and:
(A) You do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) You elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(d) When forage is harvested as other than air-dry forage, the production to count will be adjusted to the equivalent of air-dry forage.
(e) Any harvested production from plants growing in the forage will be counted as forage on a weight basis.
(f) In addition to the provisions of section 15 of the Basic Provisions, we may determine the amount of production of any unharvested forage on the basis of our field appraisals conducted after the normal time for each cutting for the area.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.118 [Reserved]
§ 457.119 Texas citrus fruit crop insurance provisions.
The Texas citrus fruit crop insurance provisions for the 2024 and succeeding crop years are as follows:
Citrus fruit commodity. Includes the following:
(a) Oranges;
(b) Grapefruit; and
(c) Any other citrus fruit designated as a “citrus fruit commodity” in the actuarial documents.
Citrus fruit group. A designation in the Special Provisions used to identify combinations of citrus fruit commodity types and intended uses within a citrus fruit commodity that may be grouped together for the purposes of electing coverage levels and identifying the insured crop.
Commodity type. A specific subcategory of a citrus fruit commodity having a characteristic or set of characteristics distinguishable from other subcategories of the same citrus fruit commodity.
Crop year. The period beginning with the date insurance attaches to the insured crop and extending through the normal harvest time. It is designated by the calendar year following the year in which the bloom is normally set.
Excess rain. An amount of precipitation that damages the insured crop.
Excess wind. A natural movement of air that has sustained speeds exceeding 58 miles per hour (50 knots) recorded at the weather reporting station (U.S. National Weather Service reporting station or any other weather reporting station identified in the Special Provisions) operating nearest to the insured acreage at the time of damage.
Freeze. The formation of ice in the cells of the tree, its blossoms, or its fruit caused by low air temperatures.
Harvest. The severance of mature citrus fruit from the tree by pulling, picking, or any other means, or by collecting marketable fruit from the ground.
Hedged. A process of trimming the sides of the citrus trees for better or more fruitful growth of the citrus fruit.
Intended use. The insured’s expected end use or disposition of the commodity at the time the commodity is reported. Insurable intended uses will be specified in the Special Provisions.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more agricultural commodities are planted in any form of alternating or mixed pattern and at least one of these agricultural commodities constitutes an insured crop under these Crop Provisions.
Production guarantee (per acre). In lieu of the definition contained in section 1 of the Basic Provisions, the production guarantee will be determined by stage as follows:
(a) First stage production guarantee – The second stage production guarantee multiplied by forty percent (40%).
(b) Second stage production guarantee. The quantity of citrus (in tons) determined by multiplying the yield determined in accordance with section 3(e) of these Crop Provisions by the coverage level percentage you elect.
Ton. Two thousand (2,000) pounds avoirdupois.
Topped. A process of trimming the uppermost portion of the citrus trees for better and more fruitful growth of the citrus fruit.
(a) Basic units will be established for each insured crop (citrus fruit group) in accordance with section 1 of the Basic Provisions.
(b) Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
(c) Optional units may be established by either of the following, but not both:
(1) In accordance with section 34(c) of the Basic Provisions, except as provided in section 2(b) of these Crop Provisions; or
(2) If each optional unit is located on non-contiguous land.
In addition to the requirements of section 3 of the Basic Provisions (§ 457.8):
(a) You may select only one price election and coverage level for each insured crop (citrus fruit group designated in the Special Provisions) that you elect to insure.
(1) The price election you choose for each insured crop (citrus fruit group) need not bear the same percentage relationship to the maximum price offered by us for each insured crop (citrus fruit group). For example, if you choose one hundred percent (100%) of the maximum price election for one insured crop (citrus fruit group) (e.g., the citrus fruit group for early and midseason oranges), you may choose seventy-five percent (75%) of the maximum price election for another insured crop (citrus fruit group) (e.g., the citrus fruit group for late oranges).
(2) If separate price elections are available by commodity type or intended use within an insured crop (citrus fruit group), the price elections you choose within the insured crop (citrus fruit group) must have the same percentage relationship to the maximum price offered by us for each other commodity type or intended use within the insured crop (citrus fruit group). For example, if separate price elections are available for commodity type ruby red grapefruit with an intended use of fresh, and commodity type ruby red grapefruit with an intended use of juice, and you choose one hundred percent (100%) of the price election for commodity type ruby red grapefruit with an intended use of fresh, you must also choose one hundred percent (100%) of the price election for commodity type ruby red grapefruit with an intended use of juice.
(b) The production guarantee per acre is progressive by stage and increases from the first stage production guarantee to the second stage production guarantee. The stages are as follows:
(1) The first stage extends from the date insurance attaches through April 30 of the calendar year of normal bloom.
(2) The second stage extends from May 1 of the calendar year of normal bloom until the end of the insurance period.
(c) Any acreage of citrus damaged in the first stage to the extent that the majority of producers in the area would not further maintain it will be limited to the first stage production guarantee even though you may continue to maintain it.
(d) In addition to the reported production, each crop year you must report by commodity type and intended use:
(1) The number of trees damaged, topped, hedged, pruned or removed; any change in practices or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based; and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with another agricultural commodity and any time the planting pattern of such acreage is changed:
(i) The age of the interplanted agricultural commodity and commodity type, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your approved yield.
(e) We will reduce the yield used to establish your production guarantee, as necessary, based on our estimate of the effect of any circumstance that may reduce your yields from previous levels. Examples of these circumstances that may reduce yield may include, but are not limited to: Interplanted agricultural commodities; removal, topping, hedging, or pruning of trees; damage; and change in practices. If the circumstance occurred:
(1) Before the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee will be reduced for the current crop year regardless of whether the circumstance was due to an insured or uninsured cause of loss;
(2) After the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee will be reduced for the current crop year only if the potential reduction in the yield used to establish your production guarantee is due to an uninsured cause of loss; or
(3) Before or after the beginning of the insurance period and you fail to notify us by the production reporting date, an amount equal to the reduction in the yield will be added to the production to count calculated in section 12(c) of these Crop Provisions due to uninsured causes. We will reduce the yield used to establish your production guarantee for the subsequent crop year to reflect any reduction in the productive capacity of the trees or in the yield potential of the insured acreage.
(f) The yield used to compute your production guarantee will be determined in accordance with Actual Production History (APH) regulations, 7 CFR part 400, subpart G, and applicable policy provisions.
(g) In lieu of the provisions in section 3 of the Basic Provisions that require reporting your production for the previous crop year, for each crop year you must report your production from two crop years ago (e.g., on the 2018 crop year production report, you will provide your 2016 crop year production).
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is August 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are November 20.
In lieu of the premium computation method in section 7 of the Basic Provisions (§ 457.8), the annual premium amount is computed by multiplying the second stage production guarantee per acre by the price election, the premium rate, the insured acreage, your share at the time coverage begins, and by any applicable premium adjustment percentages contained in the Special Provisions.
(a) In accordance with section 8 of the Basic Provisions, the insured crop will be each citrus fruit group you elect to insure and for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That is grown on trees adapted to the area;
(3) That is irrigated;
(4) That has produced an average yield of at least three tons per acre the crop year from two years prior reported in accordance with section 3(g), or we have appraised the yield potential of at least three tons per acre;
(5) That is grown in a grove that, if inspected, is considered acceptable by us; and
(6) That is not sold by direct marketing, unless allowed by the Special Provisions or by written agreement.
(b) For each insured crop (citrus fruit group), administrative fees will be assessed in accordance with section 6 of the Catastrophic Risk Protection Endorsement and section 7 of the Basic Provisions.
In lieu of the provisions in section 9 of the Basic Provisions that prohibit insurance attaching to an insured crop interplanted with another agricultural commodity, interplanted acreage is uninsurable, except a citrus fruit group interplanted with another perennial agricultural commodity is insurable unless we inspect the acreage and determine it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) Coverage begins on November 21 of each crop year, except that for the year of application, if your application is received after November 11 but prior to November 21, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10-day period that begins when the application is received by us and determine that it does not meet insurability requirements. You must provide any information that we require for the insured crop (citrus fruit group) or to determine the condition of the grove.
(2) The calendar date for the end of the insurance period for each crop year is the second May 31st of the crop year.
(b) In addition to the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) If you acquire an insurable share in any insurable acreage after coverage begins, but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage of citrus on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium will be due, and no indemnity paid for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur within the insurance period:
(1) Excess rain;
(2) Excess wind;
(3) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the grove;
(4) Freeze;
(5) Hail;
(6) Tornado;
(7) Wildlife;
(8) Failure of the irrigation water supply if caused by an insured peril or drought that occurs during the insurance period; or
(9) Insects and plant disease, unless excluded or otherwise restricted through the Special Provisions, provided the loss of production is not due to damage resulting from insufficient or improper application of control measures as recommended by agricultural experts.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to the inability to market the citrus for any reason other than actual physical damage from an insurable cause of loss specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples. In lieu of the requirements of section 14(c)(3) of the Basic Provisions, we will determine which trees must remain unharvested so that we may inspect them in accordance with FCIC procedures.
(b) In addition to the requirements of section 14 of the Basic Provisions (§ 457.8), the following will apply:
(1) If the Special Provisions permit or a written agreement authorizing direct marketing exists, you must notify us at least 15 days before any production from any unit will be harvested for direct marketing. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(2) If you intend to claim an indemnity on any unit, you must notify us at least 15 days prior to the beginning of harvest, or within 24 hours if damage is discovered during harvest, so we may have an opportunity to inspect the unit. You must not sell or dispose of the damaged crop until after we have given you written consent to do so. If you fail to meet the requirements of this section, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim on a unit basis by:
(1) Multiplying the insured acreage for each combination of commodity type and intended use by its respective production guarantee;
(2) Multiplying the results of section 12(b)(1) by the respective price election for each combination of commodity type and intended use;
(3) Totaling the results of section 12(b)(2);
(4) Multiplying the total production to count of each combination of commodity type and intended use (see section 12(c)) by the respective price election;
(5) Totaling the results of section 12(b)(4);
(6) Subtracting this result of section 12(b)(5) from the result of section 12(b)(3); and
(7) Multiplying the result of section 12(b)(6) by your share.
(c) The total production to count (in tons) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) For which you fail to provide acceptable production records;
(C) That is damaged solely by uninsured causes; or
(D) From which production is sold by direct marketing, if direct marketing is specifically permitted by the Special Provisions or a written agreement, and you fail to meet the requirements contained in section 11;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the insured crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the insured crop, in which case we will use the harvested production. If you do not continue to care for the insured crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested production from the insurable acreage.
(d) Any citrus fruit insured with an intended use of juice that is not marketed as fresh fruit and, due to insurable causes, does not contain 120 or more gallons of juice per ton, will be adjusted by:
(1) Dividing the gallons of juice per ton obtained from the damaged citrus by 120; and
(2) Multiplying the result by the number of tons of such citrus.
If individual records of juice content are not available, an average juice content from the nearest juice plant will be used, if available. If not available, a field appraisal will be made to determine the average juice content.
(e) Any citrus fruit insured with an intended use of fresh that is not marketable as fresh fruit due to insurable causes will be adjusted by multiplying the number of tons of such citrus fruit by the applicable Fresh Fruit Factor contained in the actuarial documents.
(f) Any production will be considered marketed or marketable as fresh fruit unless, due solely to insured causes, such production was not marketed as fresh fruit.
(g) In the absence of acceptable records of disposition of harvested citrus fruit, the disposition and amount of production to count for the unit will be the guarantee on the unit.
(h) Any citrus fruit on the ground that is not harvested will be considered totally lost if damaged by an insured cause.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.120 [Reserved]
§ 457.121 Arizona-California citrus crop insurance provisions.
The Arizona-California citrus crop insurance provisions for the 2024 and succeeding crop years are as follows:
Carton. The standard container for marketing the fresh packed citrus fruit commodity, as shown below, unless otherwise provided in the Special Provisions. In the absence of marketing records on a carton basis, production will be converted to cartons on the basis of the following average net pounds of packed fruit in a standard packed carton, unless otherwise provided in the Special Provisions.
| Container size | Citrus fruit commodity | Pounds |
|---|---|---|
| Container #58 | Oranges | 38 |
| Container #58 | Lemons | 40 |
| Container #59 | Grapefruit | 32 |
| Container #63 | Mandarins/Tangerines | 25 |
| Container #63 | Tangelos | 25 |
Citrus fruit commodity. Citrus fruit as follows:
(1) Oranges;
(2) Lemons;
(3) Grapefruit;
(4) Mandarins/Tangerines;
(5) Tangelos; and
(6) Any other citrus fruit commodity designated in the actuarial documents.
Citrus fruit group. A designation in the Special Provisions used to identify commodity types within a citrus fruit commodity that may be grouped together for the purposes of electing coverage levels and identifying the insured crop.
Commodity type. A specific subgroup of a citrus fruit commodity having a characteristic or set of characteristics distinguishable from other subgroups of the same citrus fruit commodity.
Crop year. The period beginning with the date insurance attaches to the insured crop and extending through normal harvest time. It is designated by the calendar year following the year in which the bloom is normally set.
Dehorning. Cutting of any scaffold limb to a length that is not greater than one-fourth (
Graft. To unite a bud or scion with a rootstock or interstock in accordance with recommended practices to form a living union.
Harvest. The severance of mature citrus from the tree by pulling, picking, or any other means, or by collecting marketable fruit from the ground.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more agricultural commodities are planted in any form of alternating or mixed pattern.
Interstock. The area of the tree that is grafted to the rootstock.
Rootstock. The root and stem portion of a tree to which a scion can be grafted.
Scaffold limb. A major limb attached directly to the trunk.
Scion. A detached living portion of a plant joined to a rootstock or interstock in grafting.
Set out. Transplanting a tree into the grove.
Topwork. Grafting a scion onto a pruned scaffold limb.
(a) Basic units will be established in accordance with section 1 of the Basic Provisions.
(b) Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm number and by irrigated and non-irrigated practices are not applicable. Unless otherwise allowed by written agreement, optional units may only be established if each optional unit meets one or more of the following:
(1) The optional unit is located on non-contiguous land; and
(2) In addition to or instead of establishing optional units by non-contiguous land, optional units may be established by commodity type if allowed by the Special Provisions.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may select only one price election and coverage level for each citrus fruit group you elect to insure. The price election you choose for each citrus fruit group need not bear the same percentage relationship to the maximum price offered by us for each citrus fruit group. For example, if you choose one hundred percent (100%) of the maximum price election for the citrus fruit group for Valencia oranges, you may choose seventy-five percent (75%) of the maximum price election for the citrus fruit group for Navel oranges. However, if separate price elections are available by commodity type within each citrus fruit group, the price elections you choose for each commodity type must have the same percentage relationship to the maximum price offered by us for each commodity type within the citrus fruit group.
(b) In lieu of reporting your citrus production of marketable fresh fruit for the previous crop year, as required by section 3 of the Basic Provisions (§ 457.8), there is a lag period of one year. Each crop year, you must report your production from two crop years ago, e.g., on the 2024 crop year production report, you will provide your 2022 crop year production.
(c) In addition, you must report, by the production reporting date designated in section 3 of the Basic Provisions (§ 457.8), by commodity type, if applicable:
(1) The number of trees damaged, dehorned or removed; any change in practices or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based; and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with another perennial agricultural commodity and any time the planting pattern of such acreage is changed:
(i) The age of the interplanted agricultural commodity and commodity type, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your approved yield.
(d) We will reduce the yield used to establish your production guarantee as necessary, based on our estimate of the effect of any situation listed in section 3(c) that may occur. If you fail to notify us of any situation in section 3(c), we will reduce your production guarantee as necessary, at any time we become aware of the circumstance. If the situation in 3(c) occurred:
(1) Before the beginning of the insurance period, the yield used to establish your production guarantee will be reduced for the current crop year regardless of whether the situation was due to an insured or uninsured cause of loss;
(2) After the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee will be reduced for the current crop year only if the potential reduction in the yield used to establish your production guarantee is due to an uninsured cause of loss; or
(3) After the beginning of the insurance period and you fail to notify us by the production reporting date, an amount equal to the reduction in the yield will be added to the production to count calculated in section 11(c) due to uninsured causes. We may reduce the yield used to establish your production guarantee for the subsequent crop year to reflect any reduction in the productive capacity of the trees.
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is August 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are November 20.
In accordance with section 8 of the Basic Provisions, the insured crop will be all the acreage in the county of each citrus fruit group you elect to insure and for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is grown on rootstock and trees adapted to the area;
(c) That is irrigated;
(d) That is grown in a grove that, if inspected, is considered acceptable by us;
(e) That is not sold by direct marketing, unless allowed by the Special Provisions or by written agreement; and
(f) That, unless otherwise allowed by the Special Provisions, is grown on trees that have reached at least:
(1) The sixth leaf year; or
(2) The fifth leaf year after topwork or grafting, if topwork or grafting occurs after set out.
In lieu of the provisions in section 9 of the Basic Provisions that prohibit insurance attaching to interplanted acreage, citrus interplanted with another perennial agricultural commodity is insurable unless we inspect the acreage and determine it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) Coverage begins on November 21 of each crop year, except that for the year of application, if your application is received after November 11 but prior to November 21, insurance will attach on the 10th day after your properly completed application is received in our local office unless we inspect the acreage during the 10-day period and determine that it does not meet insurability requirements. You must provide any information that we require for the insured crop or to determine the condition of the grove.
(2) The calendar date for the end of the insurance period for each crop year is:
(i) August 31 for:
(A) Navel oranges; and
(B) Lemons in the Southern California counties of Imperial, Orange, Riverside, San Bernardino, San Diego, and Ventura;
(ii) November 20 for Valencia oranges; and
(iii) July 31 for lemons in all other counties and for all other citrus fruit commodities.
(b) In addition to the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) If you acquire an insurable share in any insurable acreage after coverage begins, but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage of citrus on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to and no premium will be due, and no indemnity paid, for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the grove;
(3) Wildlife;
(4) Earthquake;
(5) Volcanic eruption;
(6) Failure of irrigation water supply, if caused by an insured peril that occurs during the insurance period;
(7) Insects, but not damage due to insufficient or improper application of pest control measures; or
(8) Plant disease, but not damage due to insufficient or improper application of disease control measures.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to the inability to market the citrus for any reason other than actual physical damage from an insurable cause of loss specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples. In lieu of section 14(c)(3) of the Basic Provisions, we will determine which trees must remain unharvested as your representative sample so that we may inspect them in accordance with procedures.
(b)In addition to the requirements of section 14 of the Basic Provisions (§ 457.8), the following will apply:
(1) If the Special Provisions permit or a written agreement authorizing direct marketing exists, you must notify us at least 15 days before any production from any unit will be harvested for direct marketing. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(2) If you intend to claim an indemnity on any unit, you must notify us at least 15 days prior to the beginning of harvest or immediately if damage is discovered during harvest so that we may have an opportunity to inspect unharvested trees. You must not sell or dispose of the damaged insured crop until after we have given you written consent to do so. If you fail to meet the requirements of this section, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each commodity type by its respective production guarantee;
(2) Multiplying the results of section 11(b)(1) by the respective price election for each commodity type;
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to be counted of each commodity type (see section 11(c)), by the respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting this result of section 11(b)(5) from the result of section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share;
(c) The total production to count (in cartons) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) For which you fail to provide acceptable production records;
(C) That is damaged solely by uninsured causes; or
(D) From which production is sold by direct marketing, if direct marketing is specifically permitted by the Special Provisions or a written agreement, and you fail to meet the requirements contained in section 10;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production determined to be marketable as fresh packed fruit; and
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the insured crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the insured crop, in which case we will use the harvested production. If you do not continue to care for the insured crop, our appraisal made prior to deferring the claim will be used to determine the production to count;
(2) All harvested production marketed as fresh packed fruit from the insurable acreage; and
(3) All citrus that was disposed of or sold without an inspection or written consent.
(d) Any production will be considered marketed or marketable as fresh packed fruit unless, due solely to insured causes, such production was not marketed or marketable as fresh packed fruit.
(e) Citrus that cannot be marketed as fresh packed fruit due to insurable causes will not be considered production to count.
(f) If you elect the frost protection option and we determine that frost protection equipment, as specified in the Special Provisions, was not properly utilized or not properly reported, the indemnity for the unit will be reduced by the percentage of premium reduction allowed for frost protection equipment. You must, at our request, provide us records showing the start-stop times by date for each period the frost protection equipment was used.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.122 Walnut crop insurance provisions.
The Walnut Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Both FCIC and reinsured policies:
Harvest. Removal of mature walnuts from the orchard.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Net delivered weight. Delivered weight (pounds) of dry, hulled, whole in-shell walnuts, excluding foreign material.
Pound. A unit of weight equal to 16 ounces avoirdupois.
Production guarantee (per acre). In addition to the definition contained in section 1 of the Basic Provisions, the number of pounds is dry, hulled, whole in-shell walnuts.
Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm number and by irrigated and non-irrigated practices are not applicable. Optional units may be established only if each optional unit is located on non-contiguous land, unless otherwise allowed by written agreement.
In addition to the requirements of section 3 of the Basic Provisions (§ 457.8):
(a) You may select only one price election for all the walnuts in the county insured under this policy unless the actuarial documents provide different price elections by variety or varietal group, in which case you may select one price election for each walnut variety or varietal group designated in the Special Provisions. The price elections you choose for each variety or varietal group must have the same percentage relationship to the maximum price offered by us for each variety or varietal group. For example, if you choose 100 percent of the maximum price election for a specific variety or varietal group, you must also choose 100 percent of the maximum price election for all other varieties or varietal groups.
(b) You must report, by the production reporting date designated in section 3 of the Basic Provisions (§ 457.8), by variety or varietal group if applicable:
(1) Any damage, removal of trees, change in practices, or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern;
(4) For the first year of insurance for acreage interplanted with another perennial crop, and any time the planting pattern of such acreage is changed, the age of the crop that is interplanted with the walnuts, and type if applicable, and the planting pattern; and
(5) Any other information that we request in order to establish your approved yield.
(c) We will reduce the yield used to establish your production guarantee, as necessary, based on our estimate of the effect of any circumstance that may reduce your yields from previous levels. Examples of these circumstances that may reduce yield may include but are not limited to: interplanted perennial crop; removal of trees; damage; and change in practices. If the circumstance occurred:
(1) Before the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee will be reduced for the current crop year regardless of whether the circumstance was due to an insured or uninsured cause of loss;
(2) After the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee will be reduced for the current crop year only if the potential reduction in the yield used to establish your production guarantee is due to an uninsured cause of loss; or
(3) Before or after the beginning of the insurance period and you fail to notify us by the production reporting date, an amount equal to the reduction in the yield will be added to the production to count calculated in section 11(c) of these Crop Provisions due to uninsured causes. We will reduce the yield used to establish your production guarantee for the subsequent crop year to reflect any reduction in the productive capacity of the trees or in the yield potential of the insured acreage.
(d) You may not increase your elected or assigned coverage level or the ratio of your price election to the maximum price election if a cause of loss that could or would reduce the yield of the insured crop has occurred prior to the time that you request the increase.
In accordance with section 4 of the Basic Provisions, the contract change dates are October 31 for California and August 31 preceding the cancellation date for all other states.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are January 31 for California and November 20 for all other states.
In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the commercially grown English Walnuts (excluding black walnuts) in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown on tree varieties that:
(1) Were commercially available when the trees were set out;
(2) Are adapted to the area; and
(3) Are grown on a root stock that is adapted to the area;
(c) That are grown in an orchard that, if inspected, are considered acceptable by us; and
(d) On acreage where at least 90 percent of the trees have reached at least the seventh leaf year, unless otherwise provided in the Special Provisions.
In lieu of the provisions in section 9 of the Basic Provisions (§ 457.8) that prohibit insurance attaching to a crop planted with another crop, walnuts interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with section 11 of the Basic Provisions:
(1) Coverage begins on February 1 in California and November 21 in all other states of each crop year except for the year of application, if your application is received after January 22 but prior to February 1 in California or after November 11 but prior to November 21 in all states, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10-day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the orchard.
(2) The calendar date for the end of the insurance period for each crop year is November 15, unless otherwise specified in the Special Provisions.
(3) Notwithstanding paragraph (a)(1) of this section, for each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(4) If your walnut policy is canceled or terminated for any crop year, in accordance with the terms of the policy, after insurance attached for that crop year but on or before the cancellation and termination dates, whichever is later, insurance will not be considered to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(b) In addition to section 11 of the Basic Provisions (§ 457.8):
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period. Acreage acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage of walnuts on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions (§ 457.8), we will not insure against any damage or loss of production due to the inability to market the walnuts for any reason other than actual physical damage to the walnuts from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
(a) In addition to the requirements of section 14 of the Basic Provisions, if you intend to claim an indemnity on any unit:
(1) You must notify us prior to the beginning of harvest so that we may inspect the damaged production;
(2) You must give notice when knowledge is obtained of any mold damage or 15 days prior to harvest so that we may inspect the mold damaged production; and
(3) You must not sell or dispose of the damaged crop until we have given you written consent to do so.
(b) If you fail to meet the requirements of this section, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by the respective production guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective price election for each variety or varietal group;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted of each variety or varietal group, if applicable, (see section 11(c)) by the respective price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the result in section 11(b)(5) from the result in section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of walnuts in the unit, with a guarantee of 2,500 pounds per acre and a price election of $0.90 per pound. You are only able to harvest 200,000 pounds. Your indemnity would be calculated as follows:
(1) 100 acres × 2,500 pounds = 250,000 pound insurance guarantee;
(2 & 3) 250,000 pounds × $0.90 price election = $225,000 total value of insurance guarantee;
(4 & 5) 200,000 pounds production to count × $0.90 price election = $180,000 total value of production to count;
(6) $225,000 total value guarantee – $180,000 total value of production to count = $45,000 loss; and
(7) $45,000 × 100 percent share = $45,000 indemnity payment.
(c) The total production to count (whole in-shell pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is damaged solely by uninsured causes; or
(C) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested production from the insurable acreage.
(d) Mature walnut production damaged due to an insurable cause of loss which occurs within the insurance period may be adjusted for quality based on an inspection by the Dried Fruit Association or during our loss adjustment process. Walnut production that has mold damage greater than 8 percent, based on the net delivered weight, will be reduced by the quality adjustment factors contained in the Special Provisions. If walnut production exceeds 30 percent mold damage and will not be sold, the production to count will be zero.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.123 Almond crop insurance provisions.
The Almond Crop Insurance Provisions for the 2008 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
Harvest. The removal of mature almonds from the orchard.
Interplanted. Acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Meat pounds. The total pounds of almond meats (whole, chipped and broken, and in-shell meats). In-shell almonds will be converted to meat pounds in accordance with FCIC approved procedures.
Production guarantee (per acre). The quantity of almonds (total meat pounds per acre) determined by multiplying the approved actual production history (APH) yield per acre by the coverage level percentage you elect.
Set out. Transplanting the tree into the orchard.
Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm serial number and by irrigated and non-irrigated practices are not applicable. Optional units may be established only if each optional unit is located on non-contiguous land, unless otherwise allowed by written agreement.
In addition to the requirements of section 3 of the Basic Provisions (§ 457.8):
(a) You may select only one price election for all the almonds in the county insured under this policy unless the Special Provisions provide different price elections by type, in which case you may select one price election for each almond type designated in the Special Provisions. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) You must report, by the production reporting date designated in section 3 of the Basic Provisions (§ 457.8), by type if applicable:
(1) Any damage, removal of trees, change in practices, or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting patterns;
(4) For the first year of insurance for acreage interplanted with another perennial crop, and anytime the planting pattern of such acreage is changed, the age of the crop that is interplanted with the almonds, and type if applicable, and the planting pattern; and
(5) Any other information that we request in order to establish your approved yield.
We will reduce the yield used to establish your production guarantee as necessary, based on our estimate of the effect of the following: interplanted perennial crop; removal of trees; damage; change in practices and any other circumstance on the yield potential of the insured crop. If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce your production guarantee as necessary at any time we become aware of the circumstance.
(c) You may not increase your elected or assigned coverage level or the ratio of your price election to the maximum price election if a cause of loss that would or could reduce the yield of the insured crop has occurred prior to the time that you request the increase.
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is August 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are December 31.
In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the almonds in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share unless allowed otherwise by section 8(b);
(b) That are grown for harvest as almonds;
(c) That are irrigated;
(d) That are grown in an orchard that, if inspected, is considered acceptable to us; and
(e) On acreage where at least 90 percent of the trees have reached at least the sixth growing season after being set out, unless otherwise provided in the Special Provisions.
In lieu of the provisions in section 9 of the Basic Provisions (§ 457.8), that prohibit insurance attaching to a crop planted with another crop, almonds interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) Coverage begins on January 1 of each crop year, except that for the year of application, if your application is received after December 21, but prior to January 1, insurance will attach on the 10th day after your properly completed application is received in our local office unless we inspect the acreage during the 10 day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the orchard.
(2) The calendar date for the end of the insurance period for each crop year is November 30.
(3) Notwithstanding paragraph (a)(1) of this section, for each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(4) If your almond policy is canceled or terminated for any crop year, in accordance with the terms of the policy, after insurance attached for that crop year but on or before the cancellation and termination dates whichever is later, insurance will not be considered to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(b) In addition to the provisions of section 11 (Insurance Period) of the Basic Provisions (§ 457.8):
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period. Acreage acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage of almonds on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Earthquake;
(6) Volcanic eruption;
(7) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period; or
(8) Wildlife, unless control measures have not been taken.
(b) In addition to the causes of loss excluded in section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), we will not insure against damage or loss of production due to the inability to market the almonds for any reason other than actual physical damage to the almonds from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
In addition to the requirements of section 14 of the Basic Provisions (§ 457.8), if you intend to claim an indemnity on any unit, you must notify us prior to the beginning of harvest so that we may inspect the damaged production. You must not sell or dispose of the damaged crop until after we have given you written consent to do so. If you fail to meet the requirements of this section, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(l) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective price election for the type;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted of each type, if applicable, (see subsection 11(c)) by the respective price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the result in section 11(b)(5) from the result in section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of almonds in the unit, with a guarantee of 1,200 pounds per acre and a price election of $1.70 per pound. You are only able to harvest 100,000 pounds. Your indemnity would be calculated as follows:
(1) 100 acres × 1,200 pounds = 120,000 pound insurance guarantee;
(2 & 3) 120,000 pounds × $1.70 price election = $204,000 total value of insurance guarantee;
(4 & 5) 100,000 pounds production to count × $1.70 price election = $170,000 total value of production to count;
(6) $204,000 total of value guarantee – $170,000 total value of production to count = $34,000 loss; and
(7) $34,000 × 100 percent share = $34,000 indemnity payment.
(c) The total production to count, specified in meat pounds, from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is damaged solely by uninsured causes; or
(C) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested meat pounds, including meat pounds damaged due to uninsured causes of loss.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.124 Raisin crop insurance provisions.
The raisin crop insurance provisions for the 1998 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
Crop year. In lieu of the definition of “Crop year” contained in section 1 of the Basic Provisions (§ 457.8), the calendar year in which the raisins are placed on trays for drying.
Delivered ton. A ton of raisins delivered to a packer, processor, buyer or a reconditioner, before any adjustment for U. S. Grade B and better maturity standards, and after adjustments for moisture over 16 percent and substandard raisins over 5 percent.
RAC. The Raisin Administrative Committee, which operates under an order of the United States Department of Agriculture (USDA).
Raisins. The sun-dried fruit of varieties of grapes designated insurable by the actuarial documents. These grapes will be considered raisins for the purpose of this policy when laid on trays in the vineyard to dry.
Reference maximum dollar amount. The value per ton established by FCIC and shown in the actuarial documents.
Substandard. Raisins that fail to meet the requirements of U.S. Grade C, or layer (cluster) raisins with seeds that fail to meet the requirements of U.S. Grade B.
Table grapes. Grapes grown for commercial sale as fresh fruit on acreage where appropriate cultural practices were followed.
Ton. Two thousand (2,000) pounds avoirdupois.
Tonnage report. A report used to annually report, by unit, all the tons of raisins produced in the county in which you have a share.
(a) A basic unit, as defined in section 1 of the Basic Provisions, will be divided into additional basic units by grape variety.
(b) Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm serial number and by irrigated and non-irrigated practices are not applicable. Optional units may be established only if each optional unit is located on non-contiguous land, unless otherwise allowed by written agreement.
In addition to the requirements of section 3 (Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities) of the Basic Provisions (§ 457.8):
(a) You may select only one coverage level percentage for all the raisins in the county insured under this policy.
(b) The amount of insurance for the unit will be determined by multiplying the insured tonnage by the reference maximum dollar amount, by the coverage level percentage you elect, and by your share.
(c) Insured tonnage is determined as follows:
(1) For units not damaged by rain – The delivered tons; or
(2) For units damaged by rain – By adding the delivered tons to any verified loss of production due to rain damage. When production from a portion of the acreage within a unit is removed from the vineyard and production from the remaining acreage is lost in the vineyard, the amount of production lost in the vineyard will be determined based on the number of tons of raisins produced on the acreage from which production was removed. When no production has been removed from the vineyard, the amount of production lost in the vineyard will be determined based on an appraisal.
(3) Insured tonnage will be adjusted as follows:
(i) The insured tonnage will be reduced 0.12 percent for each 0.10 percent of moisture in excess of 16.0 percent. For example, 10.0 tons of raisins containing 18.0 percent moisture will be reduced to 9.760 tons of raisins;
(ii) Insured tonnage used for dry edible fruit will be reduced by 0.10 percent for each 0.10 percent of substandard raisins in excess of 5.0 percent; and
(iii) When raisins contain moisture in excess of 24.3 percent at the time of delivery and are released for a use other than dry edible fruit (e.g. distillery material), they will be considered to contain 24.3 percent moisture.
(4) If any raisins are delivered, the moisture content will be determined at the time of delivery.
(d) Section 3(c) of the Basic Provisions is not applicable to this crop.
In accordance with section 4 (Contract Changes) of the Basic Provisions (§ 457.8), the contract change date is April 30 preceding the cancellation date.
In accordance with section 2 (Life of Policy, Cancellation and Termination) of the Basic Provisions (§ 457.8), the cancellation and termination dates are July 31.
In lieu of the provisions contained in section 6 of the Basic Provisions (§ 457.8):
(a) You must report by unit, and on our form, the acreage on which you intend to produce raisins for the crop year. This acreage report must be submitted to us on or before the sales closing date, and contain the following information:
(1) All acreage of the crop (insurable and not insurable) in which you will have a share;
(2) Your anticipated share at the time coverage will begin;
(3) The variety; and
(4) The location of each vineyard.
(b) Acreage of the crop acquired after the acreage was reported, may be included on the acreage report if we agree to accept the additional acreage. Such additional acreage will not be added to the acreage report after you first place raisins from the additional acreage on trays for drying. Failure to report any acreage in which you have a share will result in denial of liability. If you elect not to produce raisins on any part of the acreage included on your acreage report, you must notify us in writing on or before September 21, and provide any records we may require to verify that raisins were not produced on that acreage.
(c) If you fail to file an acreage report in a timely manner, or if the information reported is incorrect, we may deny liability on any unit.
(d) In addition to the acreage report, you must annually submit a tonnage report, on our form, which includes by unit the number of delivered tons of raisins, and, if damage has occurred, the amount of any tonnage we determined was lost due to rain damage in the vineyard for each unit designated in the acreage report.
(e) The tonnage report must be submitted to us as soon as the information is available, but not later than March 1 of the year following the crop year. Indemnities may be determined on the basis of information you submitted on this report. If you do not submit this report by the reporting date, we may, at our option, either determine the insured tonnage and share by unit or we may deny liability on any unit. This report may be revised only upon our approval. Errors in reporting units may be corrected by us at any time we discover the error.
In lieu of the premium computation method contained in section 7 (Annual Premium) of the Basic Provisions (§ 457.8), the annual premium amount is determined by multiplying the amount of insurance for the unit at the time insurance attaches by the premium rate and then multiplying that result by any applicable premium adjustment factors that may apply.
(a) In accordance with section 8 (Insured Crop) of the Basic Provisions (§ 457.8), the crop insured will be all the raisins in the county of grape varieties for which a premium rate is provided by the actuarial documents and in which you have a share.
(b) In addition to the raisins not insurable under section 8 (Insured Crop) of the Basic Provisions (§ 457.8), we do not insure any raisins:
(1) Laid on trays after September 8 in vineyards with north-south rows in Merced or Stanislaus Counties, or after September 20 in all other counties;
(2) From table grape strippings; or
(3) From vines that received manual, mechanical, or chemical treatment to produce table grape sizing.
In lieu of the provisions of section 11 (Insurance Period) of the Basic Provisions (§ 457.8), insurance attaches on each unit at the time the raisins are placed on trays for drying and ends the earlier of:
(a) October 20;
(b) The date the raisins are removed from the trays;
(c) The date the raisins are removed from the vineyard;
(d) Total destruction of all raisins on a unit;
(e) Final adjustment of a loss on a unit; or
(f) Abandonment of the raisins.
(a) In accordance with the provisions of section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), insurance is provided only against unavoidable loss of production resulting from rain that occurs during the insurance period and while the raisins are on trays or in rolls in the vineyard for drying.
(b) In addition to the causes of loss excluded in section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), we will not insure against damage or loss of production due to inability to market the raisins for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of a person to accept production.
(a) We may require you to recondition a representative sample of not more than 10 tons of damaged raisins to determine if they meet standards established by the RAC once reconditioned. If such standards are met, we may require you to recondition all the damaged production. If we determine that it is possible to recondition any damaged production and, if you do not do so, we will value the damaged production at the reference maximum dollar amount, except if your damaged production undergoes a USDA inspection and is stored by your packer with other producer’s production to be reconditioned at a later date. If we agree, in writing, that it is not practical to recondition the damaged production, we will determine the number of tons meeting RAC standards that could be obtained if the production were reconditioned.
(b) If the representative sample of raisins that we require you to recondition does not meet RAC standards for marketable raisins after reconditioning, the reconditioning payment will be the actual cost you incur to recondition the sample, not to exceed an amount that is reasonable and customary for such reconditioning, regardless of the coverage level selected.
(c) A reconditioning payment, based on the actual (unadjusted) weight of the raisins, will be made if:
(1) Insured raisin production:
(i) Is damaged by rain within the insurance period;
(ii) Is reconditioned by washing with water and then drying;
(iii) Is insured at a coverage level greater than that applicable to the catastrophic risk protection plan of insurance; and either
(2) The damaged production undergoes an inspection by USDA and is found to contain mold, embedded sand, or other rain-caused contamination determined by micro-analysis in excess of standards established by the RAC, or is found to contain moisture in excess of 18 percent; or
(3) We give you consent to recondition the damaged production.
(d) Your request for consent to any wash-and-dry reconditioning must identify the acreage on which the production to be reconditioned was damaged in order to be eligible for a reconditioning payment.
(e) The reconditioning payment for raisins that meet RAC standards for marketable raisins after reconditioning will be the lesser of your actual cost for reconditioning or the amount determined by:
(1) Multiplying the greater of $125.00 or the reconditioning dollar amount per ton contained in the Special Provisions by your coverage level;
(2) Multiplying the result of section 11(e)(1) by the actual number of tons of raisins (unadjusted weight) that are wash-and-dry reconditioned; and
(3) Multiplying the result of section 11(e)(2) by your share.
(f) Only one reconditioning payment will be made for any lot of raisins damaged during the crop year. Multiple reconditioning payments for the same production will not be made.
(a) In addition to the requirements of section 14 (Duties in the Event of Damage or Loss) of the Basic Provisions (§ 457.8), the following will apply:
(1) If you intend to claim an indemnity on any unit, you must give us notice within 72 hours of the time the rain fell on the raisins. We may reject any claim for indemnity if such notice is later. You must provide us the following information when you give us this notice:
(i) The grape variety;
(ii) The location of the vineyard and number of acres; and
(iii) The number of vines from which the raisins were harvested.
(2) We will not pay any indemnity unless you:
(i) Authorize us in writing to obtain all relevant records from any raisin packer, raisin reconditioner, the RAC, or any other person who may have such records. If you fail to meet the requirements of this subsection, all insured production will be considered undamaged and valued at the reference maximum dollar value.
(ii) Upon our request, provide us with records of previous years’ production and acreage. This information may be used to establish the amount of insured tonnage when insurable damage results in discarded production.
(b) In lieu of the provisions in section 14 (Duties in the Event of Damage or Loss) of the Basic Provisions (§ 457.8) that require you to submit a claim for indemnity not later than 60 days after the end of the insurance period, any claim for indemnity must be submitted to us not later than March 31 following the date for the end of the insurance period.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the acreage from which raisins were removed for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured tonnage of raisins by the reference maximum dollar amount and your coverage level percentage;
(2) Subtracting from the total in section 13(b)(1) the total value of all insured damaged and undamaged raisins; and
(3) Multiplying the result of section 13(b)(2) by your share.
(c) For the purpose of determining the amount of indemnity, your share will not exceed the lesser of your share at the time insurance attaches or at the time of loss.
(d) Undamaged raisins or raisins damaged solely by uninsured causes will be valued at the reference maximum dollar amount.
(e) Raisins damaged partially by rain and partially by uninsured causes will be valued at the highest prices obtainable, adjusted for any reduction in value due to uninsured causes.
(f) Raisins that are damaged by rain, but that are reconditioned and meet RAC standards for raisins, will be valued at the reference maximum dollar amount.
(g) The value to count for any raisins produced on the unit that are damaged by rain and not removed from the vineyard will be the larger of the appraised salvage value or $35.00 per ton, except that any raisins that are damaged and discarded from trays or are lost from trays scattered in the vineyard as part of normal handling will not be considered to have any value. You must box and deliver any raisins that can be removed from the vineyard.
(h) At our sole option, we may acquire all the rights and title to your share of any raisins damaged by rain. In such event, the raisins will be valued at zero in determining the amount of loss and we will have the right of ingress and egress to the extent necessary to take possession, care for, and remove such raisins.
(i) Raisins destroyed, put to another use without our consent, or abandoned will be valued at the reference maximum dollar amount.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.125 Safflower crop insurance provisions.
The Safflower Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
Harvest. Collecting the safflower seed by combining or threshing.
Local market price. The cash price per pound for undamaged safflower (test weight of 35 pounds per bushel or higher and seed damage less than 25 percent) offered by buyers.
Nurse crop (companion crop). A crop planted into the same acreage as another crop, that is intended to be harvested separately, and which is planted to improve growing conditions for the crop with which it is grown.
Planted acreage. In addition to the definition contained in the Basic Provisions, safflowers must initially be planted in rows, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Pound. Sixteen ounces avoirdupois.
Value per pound. The cash price per pound for damaged safflower (test weight below 35 pounds per bushel, seed damage in excess of 25 percent, or both).
In addition to the requirements of section 3 (Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities) of the Basic Provisions (§ 457.8), you may select only one price election for all the safflower in the county insured under this policy unless the Special Provisions provide different price elections by type, in which case you may select one price election for each safflower type designated in the Special Provisions. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
In accordance with section 4 (Contract Changes) of the Basic Provisions (§ 457.8), the contract change date is August 31 preceding the cancellation date for California, and December 31 preceding the cancellation date for all other states.
In accordance with section 2 (Life of Policy, Cancellation, and Termination) of the Basic Provisions (§ 457.8), the cancellation and termination dates are:
| State | Cancellation and termination dates |
|---|---|
| California | December 31. |
| All other states | March 15. |
In accordance with section 8 (Insured Crop) of the Basic Provisions (§ 457.8), the crop insured will be all safflower in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is planted for harvest as safflower seed;
(c) That is not (unless allowed by the Special Provisions or by written agreement):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
In addition to the provisions of section 9 (Insurable Acreage) of the Basic Provisions (§ 457.8), we will not insure:
(a) Safflower planted on land on which safflower, sunflower seed, any variety of dry beans, soybeans, mustard, rapeseed, or lentils were grown the preceding crop year, unless other rotation requirements are specified in the Special Provisions or we agree in writing to insure such acreage; or
(b) Any acreage of safflower damaged before the final planting date, to the extent that the majority of producers in the area would normally not further care for the crop, unless the crop is replanted or we agree that it is not practical to replant.
In accordance with the provisions of section 11 (Insurance Period) of the Basic Provisions (§ 457.8), the calendar date for the end of the insurance period is October 31 immediately following planting.
In accordance with the provisions of section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife, unless proper measures to control wildlife have not been taken;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if caused by an insured cause of loss that occurs during the insurance period.
(a) In accordance with section 13 (Replanting Payment) of the Basic Provisions (§ 457.8), a replanting payment is allowed if the crop is damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be the lesser of 20 percent of the production guarantee or 160 pounds, multiplied by your price election, multiplied by your insured share.
(c) When safflower is replanted using a practice that is uninsurable as an original planting, the liability on the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
In accordance with the requirements of section 14 (Duties in the Event of Damage or Loss) of the Basic Provisions (§ 457.8), the representative samples of the unharvested crop must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be harvested or destroyed until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective price election;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted of each type if applicable, (see section 11(c)) by the respective price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the results from the total in section 11(b)(5) from the results in section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
(c) The total production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for the acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with section 11(d)); and
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature safflower may be adjusted for excess moisture and quality deficiencies. If moisture adjustment is applicable, it will be made prior to any adjustment for quality.
(1) Production will be reduced by 0.12 percent for each 0.1 percentage point of moisture in excess of 8 percent. We may obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if such production:
(i) Has a test weight below 35 pounds per bushel;
(ii) Has seed damage in excess of 25 percent; or
(iii) Contains substances or conditions that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a cause of loss against which insurance is provided under these crop provisions and that occurred within the insurance period;
(ii) The deficiencies, substances, or conditions result in a value per pound that is less than the local market price;
(iii) All determinations of these deficiencies, substances, or conditions are made using samples of the production obtained by us or by a disinterested third party approved by us;
(iv) With regard to deficiencies in quality (except test weight, which may be determined by our loss adjuster), the samples are analyzed by:
(A) A grader licensed under the United States Agricultural Marketing Act or the United States Warehouse Act;
(B) A grader licensed under State law and employed by a warehouse operator who has a storage agreement with the Commodity Credit Corporation; or
(C) A grader not licensed under State law, but who is employed by a warehouse operator who has a commodity storage agreement with the Commodity Credit Corporation and is in compliance with State law regarding warehouses; and
(v) With regard to substances or conditions injurious to human or animal health, the samples are analyzed by a laboratory approved by us.
(4) Safflower production that is eligible for quality adjustment, as specified in sections 11(d) (2) and (3), will be reduced as follows:
(i) In accordance with the quality adjustment factors contained in the Special Provisions; or
(ii) If quality adjustment factors are not contained in the Special Provisions:
(A) By determining the value per pound and the local market price on the earlier of the date such quality adjusted production is sold or the date of final inspection for the unit. Discounts used to establish the value per pound will be limited to those which are usual, customary, and reasonable. The value per pound will not be reduced for:
(1) Moisture content;
(2) Damage due to uninsured causes; or
(3) Drying, handling, processing, or any other costs associated with normal harvesting, handling, and marketing of safflower. We may obtain values per pound from any buyer of our choice. If we obtain values per pound from one or more buyers located outside your local market area, we will reduce such values per pound by the additional costs required to deliver the production to those buyers.
(B) Divide the value per pound by the local market price to determine the quality adjustment factor; and
(C) Multiply the adjustment factor by the number of pounds of the damaged production remaining after any reduction due to excessive moisture to determine the net production to count.
(e) Any production harvested from other plants growing in the insured crop may be counted as production of the insured crop on a weight basis.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.126 Popcorn crop insurance provisions.
The Popcorn Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
Base contract price. The price stipulated on the contract executed between you and the processor before any adjustments for quality.
Harvest. Removing the grain or ear from the stalk either by hand or by machine.
Merchantable popcorn. Popcorn that meets the provisions of the processor contract.
Planted acreage. In addition to the definition contained in the Basic Provisions, popcorn must initially be planted in rows far enough apart to permit mechanical cultivation, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Pound. Sixteen (16) ounces avoirdupois.
Practical to replant. In addition to the definition contained in the Basic Provisions, it will not be considered practical to replant unless production from the replanted acreage can be delivered under the terms of the popcorn processor contract, or the processor agrees in writing that it will accept the production from the replanted acreage.
Processor. Any business enterprise regularly engaged in processing popcorn that possesses all licenses, permits or approved inspections for processing popcorn required by the state in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process the contracted popcorn within a reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a processor, containing at a minimum:
(a) The producer’s commitment to plant and grow popcorn, and to deliver the popcorn production to the processor;
(b) The processor’s commitment to purchase all the production stated in the processor contract;
(c) A date, if specified on the processor’s contract, by which the crop must be harvested to be accepted; and
(d) A base contract price.
(a) For processor contracts that stipulate the amount of production to be delivered:
(1) In lieu of the definition contained in the Basic Provisions, a basic unit will consist of all the acreage planted to the insured crop in the county that will be used to fulfill contracts with each processor;
(i) There will be no more than one basic unit for all production contracted with each processor contract;
(ii) In accordance with section 13 of these Crop Provisions, all production from any basic unit in excess of the amount under contract will be included as production to count if such production is applied to any other basic unit for which the contracted amount has not been fulfilled; and
(2) Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm serial number and by irrigated and non-irrigated practices are not applicable.
(b) For any processor contract that stipulates only the number of acres to be planted, the provisions contained in section 34 of the Basic Provisions will apply.
In addition to the requirements of section 3 of the Basic Provisions, you may select only one price election for all the popcorn in the county insured under this policy unless the Special Provisions provide different price elections by type, in which case you may select one price election for each popcorn type designated in the Special Provisions. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State and county | Cancellation and termination dates |
|---|---|
| Val Verde, Edwards, Kerr, Kendall, Bexar, Wilson, Karnes, Goliad, Victoria, and Jackson counties Texas, and all Texas counties lying south thereof | January 15. |
| All other Texas counties and all other states | March 15. |
In addition to the provisions of section 6 of the Basic Provisions, you must provide a copy of all processor contracts to us on or before the acreage reporting date.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the popcorn in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That is planted for harvest as popcorn;
(3) That is grown under, and in accordance with the requirements of, a processor contract executed on or before the acreage reporting date and is not excluded from the processor contract at any time during the crop year; and
(4) That is not (unless allowed by the Special Provisions or by written agreement):
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume.
(b) You will be considered to have a share in the insured crop if, under the processor contract, you retain control of the acreage on which the popcorn is grown, you have a risk of loss, and the processor contract provides for delivery of popcorn under specified conditions and at a stipulated base contract price.
(c) A popcorn producer who is also a processor may be able to establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) The Board of Directors or officers of the processor must, prior to the sales closing date, execute and adopt a resolution that contains the same terms as an acceptable processor contract. Such resolution will be considered a processor contract under this policy; and
(3) Our inspection reveals that the processing facilities comply with the definition of a processor contained in these Crop Provisions.
In addition to the provisions of section 9 of the Basic Provisions, any acreage of the insured crop damaged before the final planting date, to the extent that the majority of producers in the area would normally not further care for the crop, must be replanted unless we agree that it is not practical to replant.
In lieu of the provisions contained in section 11 of the Basic Provisions, regarding the end of the insurance period, insurance ceases on each unit or part of a unit at the earliest of:
(a) The date the popcorn:
(1) Was destroyed;
(2) Should have been harvested but was not harvested;
(3) Was abandoned; or
(4) Was harvested;
(b) When the processor contract stipulates a specific amount of production to be delivered, the date the production accepted by the processor equals the contracted amount of production;
(c) Final adjustment of a loss; or
(d) December 10 immediately following planting.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by a cause of loss specified in sections 10(a)(1) through (7) that occurs during the insurance period.
(b) In addition to the causes of loss excluded by section 12 of the Basic Provisions, we do not insure against any loss of production due to:
(1) Damage resulting from frost or freeze after the date designated in the Special Provisions; or
(2) Failure to follow the requirements contained in the processor contract.
(a) In accordance with section 13 of the Basic Provisions, a replanting payment is allowed if the crop is damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be the lesser of 20 percent of the production guarantee or 150 pounds, multiplied by your price election, multiplied by your insured share.
(c) When popcorn is replanted using a practice that is uninsurable as an original planting, our liability for the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
In accordance with the requirements of section 14 of the Basic Provisions, the representative samples of the unharvested crop must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be destroyed until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed.
(a) We will determine your loss on a unit basis. In the event you are unable to provide acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by its respective production guarantee;
(2) Multiplying the result of section 13(b)(1) by the respective price election for each type, if applicable;
(3) Totaling the results of section 13(b)(2) if there is more than one type;
(4) Multiplying the total production to count (see section 13(c)), of each type if applicable, by its respective price election;
(5) Totaling the results of section 13(b)(4) if there is more than one type;
(6) Subtracting the result of section 13(b)(4) from the result in section 13(b)(2) if there is only one type or subtracting the result of section 13(b)(5) from the result of section 13(b)(3) if there is more than one type; and
(7) Multiplying the result of section 13(b)(6) by your share.
| For example: | |
| You have a 100 percent share in 100 acres of Type A popcorn in the unit, with a guarantee of 2,500 pounds per acre and a price election of $.12 per pound. You are only able to harvest 150,000 pounds. Your indemnity would be calculated as follows: | |
| 1 | 100 acres × 2,500 pounds = 250,000 pound guarantee; |
| 2 | 250,00 pounds × $.12 price election = $30,000 value of guarantee; |
| 4 | 150,000 pounds production to count × $.12 price election = $18,000 value of production to count; |
| 6 | $30,000−$18,000 = $12,000 loss; and |
| 7 | $12,000 × 100 percent share = $12,000 indemnity payment. |
| You also have a 100 percent share in 150 acres of type B popcorn in the same unit, with a guarantee of 2,250 pounds per acre and a price election of $.10 per pound. You are only able to harvest 70,000 pounds. Your total indemnity for both popcorn types A and B would be calculated as follows: | |
| 1 | 100 acres × 2,500 pounds = 250,000 guarantee for type A and 150 acres × 2,250 pounds = 337,500 pound guarantee for type B; |
| 2 | 250,000 pound guarantee × $.12 price election = $30,000 value of guarantee for type A and 337,500 pound guarantee × $.10 price election = $33,750 value guarantee for type B; |
| 3 | $30,000 + $33,750 = $63,750 total value guarantee; |
| 4 | 150,000 pounds × $.12 price election = $18,000 value of production to count for type A and |
| 70,000 pounds × $.10 price election = $7,000 value of production to count for type B; | |
| 5 | $18,000 + $7,000 = $25,000 total value of production to count; |
| 6 | $63,750−$25,000 = $38,750 loss; and |
| 7 | $38,750 × 100 percent = $38,750 indemnity payment. |
(c) The total production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide production records;
(ii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with section 13(d));
(iii) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested;
(2) All harvested production from the insurable acreage in the unit;
(3) All harvested and appraised production lost or damaged by uninsured causes; and
(4) For processor contracts that stipulate the amount of production to be delivered, all harvested popcorn production from any other insurable unit that has been used to fulfill your processor contract applicable to this unit.
(5) Any production from yellow or white dent corn will be counted as popcorn on a weight basis and any production harvested from plants growing in the insured crop may be counted as popcorn production on a weight basis.
(6) Any ear production for which we cannot determine a shelling factor will be considered to have an 80 percent shelling factor.
(d) Mature popcorn may be adjusted for excess moisture and quality deficiencies. If moisture adjustment is applicable, it will be made prior to any adjustment for quality.
(1) Production will be reduced by 0.12 percent for each 0.1 percentage point for moisture in excess of 15 percent. We may obtain samples of the production to determine the moisture content.
(2) Popcorn production will be eligible for quality adjustment if, due to an insurable cause of loss that occurs within the insurance period, it is not merchantable popcorn and is rejected by the processor. The production will be adjusted by:
(i) Dividing the value per pound of the damaged popcorn by the base contract price per pound for undamaged popcorn; and
(ii) Multiplying the result by the number of pounds of such popcorn.
Late planting provisions in the Basic Provisions are applicable for popcorn if you provide written approval from the processor by the acreage reporting date that it will accept the production from the late planted acres when it is expected to be ready for harvest.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.127 [Reserved]
§ 457.128 Guaranteed production plan of fresh market tomato crop insurance provisions.
The Guaranteed Production Plan of Fresh Market Tomato Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Acre. Forty-three thousand five hundred sixty (43,560) square feet of land when row widths do not exceed six feet, or if row widths exceed six feet, the land area on which at least 7,260 linear feet of rows are planted.
Carton. A container that contains 25 pounds of fresh tomatoes unless otherwise provided in the Special Provisions.
First fruit set. The date when 30 percent of the plants on the unit have produced fruit that has reached a minimum size of one inch in diameter.
Harvest. Picking of marketable tomatoes.
Mature green tomato. A tomato that:
(a) Has a heightened gloss due to a waxy skin that cannot be torn by scraping;
(b) Has a well-formed jelly-like substance in the locules;
(c) Has seeds that are sufficiently hard so they are pushed aside and not cut by a sharp knife in slicing; and
(d) Shows no red color.
Planting. Transplanting the tomato plants into the field.
Planting period. The time period designated in the Special Provisions during which the tomatoes must be planted to be insured as either spring-or fall-planted tomatoes.
Plant stand. The number of live plants per acre before any damage occurs.
Potential production. The number of cartons per acre of mature green or ripe tomatoes that the tomato plants would have produced by the end of the insurance period:
(a) With a classification size of 6 × 7 (2-8/32 inch minimum diameter) or larger for all types except cherry, roma, or plum; or
(b) Meeting the criteria specified in the Special Provisions for cherry, roma, or plum types.
Practical to replant. In lieu of the definition of “Practical to replant” contained in section 1 of the Basic Provisions (§ 457.8), practical to replant is defined as our determination, after loss or damage to the insured crop, based on factors, including but not limited to moisture availability, condition of the field, time to crop maturity, and marketing windows that replanting the insured crop will allow the crop to attain maturity prior to the calendar date for the end of the insurance period. In counties that do not have both spring and fall planting periods, it will not be considered practical to replant after the final planting date unless replanting is generally occurring in the area. In counties that have spring and fall planting periods, it will not be considered practical to replant after the final planting date for the planting period in which the crop was initially planted.
Ripe tomato. A tomato that meets the definition of a mature green tomato, except the tomato shows some red color and can still be packed for fresh market under the agreement or contract with the packer.
Row width. The distance in feet from the center of one row of plants to the center of an adjacent row.
(a) A basic unit, as defined in section 1 of the Basic Provisions, will be divided into additional basic units by planting period, if separate planting periods are provided for in the Special Provisions.
(b) Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
In addition to the requirements of section 3 of the Basic Provisions (§ 457.8):
(a) You may select only one price election for all the tomatoes in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may select one price election for each tomato type designated in the actuarial documents. The price election you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) The production guarantees per acre are progressive by stages and increase at specified intervals to the final stage production guarantee. The stages and production guarantees are as follows:
(1) For California:
| Stage | Percent of stage 3 (final stage) production guarantee | Length of time |
|---|---|---|
| 1 | 50 | From planting until first fruit set. |
| 2 | 70 | From first fruit set until harvested. |
| 3 | 100 | Harvested acreage. |
(2) For all other states, except California:
| Stage | Percent of stage 4 (final stage) production guarantee | Length of time |
|---|---|---|
| 1 | 50 | From planting until qualifying for stage 2. |
| 2 | 75 | From the earlier of stakes driven, one tie and pruning, or 30 days after planting until qualifying for stage 3. |
| 3 | 90 | From the earlier of the end of stage 2 or 60 days after planting until qualifying for stage 4. |
| 4 | 100 | From the earlier of 75 days after planting or the beginning of harvest. |
(c) Any acreage of tomatoes damaged to the extent that producers in the area generally would not further care for the tomatoes will be deemed to have been destroyed even though you continue to care for the tomatoes. The production guarantee for such acreage will be the guarantee for the stage in which such damage occurs.
(d) Any production guarantees for cherry, roma, or plum type tomatoes will be specified in the Special Provisions.
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is September 30 preceding the cancellation date for counties with a January 31 cancellation date and December 31 preceding the cancellation date for all other counties.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are:
Cancellation and Termination
| State | Dates |
|---|---|
| California, Florida, Georgia, and South Carolina | January 31. |
| All other states | March 15. |
(a) In addition to the provisions of section 6 of the Basic Provisions (§ 457.8), you must report the row width.
(b) If spring and fall planting periods are allowed in the Special Provisions you must report all the information required by section 6 of the Basic Provisions (§ 457.8) and these Crop Provisions by the acreage reporting date for each planting period.
In lieu of provisions contained in the Basic Provisions (§ 457.8), for determining premium amounts, the annual premium is determined by multiplying the final stage production guarantee by the price election, by the premium rate, by the insured acreage, by your share at the time coverage begins, and by any applicable premium adjustment factor contained in the Special Provisions.
In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the tomatoes in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are transplanted tomatoes that have been planted for harvest as fresh market tomatoes;
(c) That are planted within the spring or fall planting periods, as applicable, specified in the Special Provisions;
(d) That, on or before the acreage reporting date, are subject to any agreement in writing (packing contract) executed between you and a packer, whereby the packer agrees to accept and pack the production specified in the agreement, unless you control a packing facility or an exception exists in the Special Provisions; and
(e) That are not (unless allowed by the Special Provisions):
(1) Grown for direct marketing;
(2) Interplanted with another crop;
(3) Planted into an established grass or legume; or
(4) Cherry, roma, or plum type tomatoes.
(a) In addition to the provisions of section 9 of the Basic Provisions (§ 457.8):
(1) Any acreage of the insured crop damaged before the final planting date, to the extent that the majority of growers in the area would normally not further care for the crop, must be replanted unless we agree that it is not practical to replant. Unavailability of plants will not be considered a valid reason for failure to replant.
(2) We do not insure any acreage of tomatoes:
(i) Grown by any person if the person had not previously:
(A) Grown fresh market tomatoes for commercial sales; or
(B) Participated in the management of a fresh market tomato farming operation, in at least one of the three previous years.
(ii) That does not meet the rotation requirements contained in the Special Provisions;
(iii) On which tomatoes, peppers, eggplants, or tobacco have been grown within the previous two years unless the soil was fumigated or nematicide was applied before planting the tomatoes, except that this limitation does not apply to a first planting in Pennsylvania or if otherwise specified in the Special Provisions; or
(b) In lieu of the provisions of section 9 of the Basic Provisions (§ 457.8), that prohibit insurance from attaching if a crop has not been planted and harvested in at least one of the three previous calendar years, we will insure newly cleared land or former pasture land planted to fresh market tomatoes.
In lieu of the provisions of section 11 of the Basic Provisions (§ 457.8):
(a) Coverage begins on each unit or part of a unit on the later of the date you submit your application or when the tomatoes are planted.
(b) Coverage will end on any insured acreage at the earliest of:
(1) Total destruction of the tomatoes;
(2) Discontinuance of harvest;
(3) The date harvest should have started on any acreage that was not harvested;
(4) 120 days after the date of transplanting or replanting;
(5) Completion of harvest;
(6) Final adjustment of a loss; or
(7) October 15 of the crop year in Delaware, Maryland, New Jersey, North Carolina, and Virginia; October 31 of the crop year in California; November 10 of the crop year in Florida, Georgia, and South Carolina; and September 20 of the crop year in all other states.
(a) In accordance with the provisions of section 12of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions (§ 457.8), we will not insure against damage or loss of production that occurs or becomes evident after the tomatoes have been harvested.
(a) In accordance with section 13 of the Basic Provisions (§ 457.8), a replanting payment is allowed if the crop is damaged by an insurable cause of loss and the acreage to be replanted has sustained a loss in excess of 50 percent of the plant stand.
(b) The maximum amount of the replanting payment per acre will be:
(1) Seventy (70) cartons multiplied by your price election, multiplied by your insured share for all insured tomatoes except cherry, roma or plum types; and
(2) As specified in the Special Provisions for cherry, roma, or plum types.
(c) In lieu of the provisions contained in section 13 of the Basic Provisions (§ 457.8) that permit only one replanting payment each crop year, when both spring and fall planting periods are contained in the Special Provisions, you may be eligible for one replanting payment for acreage planted during each planting period within the crop year.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by its respective production guarantee for the stage in which the damage occurred;
(2) Multiplying the results of section 13(b)(1) by the respective price election for each type, if applicable;
(3) Totaling the results of section 13(b)(2);
(4) Multiplying the total production to be counted of each type, if applicable, (see section 13(c)) by the respective price election;
(5) Totaling the results of section 13(b)(4);
(6) Subtracting this result of section 13(b)(5) from the results in section 13(b)(3); and
(7) Multiplying the result of section 13(b)(6) by your share.
(c) The total production to count (in cartons) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Potential production lost due to uninsured causes;
(iii) Unharvested production of mature green and ripe tomatoes remaining after harvest has ended:
(A) With a classification size of 6 × 7 (2
(B) That grade in accordance with the requirements specified in the Special Provisions for cherry, roma or plum types.
(iv) Potential production on unharvested acreage and potential production on acreage when final harvest has not been completed;
(v) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage:
(i) That is marketed, regardless of grade; and
(ii) That is unmarketed and:
(A) That grades eighty-five percent (85%) or better U.S. No. 1 with a classification size of 6 × 7 (2-8/32 inch minimum diameter) or larger for all types except cherry, roma, or plum; or
(B) That grade in accordance with the requirements specified in the Special Provisions for cherry, roma, or plum types.
(d) Only that amount of appraised production that exceeds the difference between the final stage guarantee and the stage guarantee applicable to the acreage will be production to count.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.129 Fresh market sweet corn crop insurance provisions.
The fresh market sweet corn crop insurance provisions for the 2023 and succeeding crop years in counties with a contract change date of November 30, and for the 2024 and succeeding crop years in counties with a contract change date of April 30, are as follows:
Allowable cost. The dollar amount per container for harvesting, packing, and handling as shown in the actuarial documents.
Amount of insurance (per acre). The dollar amount of coverage per acre obtained by multiplying the reference maximum dollar amount shown on the actuarial documents by the coverage level percentage you elect.
Average net value per container. The dollar amount obtained by totaling the net values of all containers of sweet corn sold and dividing the result by the total number of containers of all sweet corn sold.
Container. The unit of measurement for the insured crop as specified in the Special Provisions.
Crop year. In lieu of the definition of “crop year” contained in section 1 of the Basic Provisions, for counties with fall, winter, and spring planting periods or counties with fall and spring planting periods, the period of time that begins on the first day of the earliest planting period for fall planted sweet corn and continues through the last day of the insurance period for spring planted sweet corn. For counties with only spring planting periods, the period of time that begins on the earliest planting period for spring planted sweet corn and continues through the last day of the insurance period for spring planted sweet corn. The crop year is designated by the calendar year in which spring planted sweet corn is harvested.
Harvest. Separation of ears of sweet corn from the plant by hand or machine.
Marketable sweet corn. Sweet corn that is sold for any purpose or grades U.S. No. 1 or better in accordance with the requirements of the United States Standards for Grades of Sweet Corn.
Minimum value. The dollar amount per container shown in the actuarial documents we will use to value marketable production to count.
Net value. The dollar value of packed and sold sweet corn obtained by subtracting the allowable cost and any additional charges specified in the Special Provisions from the gross value per container of sweet corn sold. This result may not be less than zero.
Plant stand. The number of live plants per acre prior to the occurrence of an insurable cause of loss.
Planted acreage. In addition to the definition contained in section 1 of the Basic Provisions, for each planting period, sweet corn seed must be planted in rows far enough apart to permit mechanical cultivation, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Planting period. The period of time designated in the actuarial documents in which sweet corn must be planted to be considered fall, winter, or spring-planted sweet corn.
Potential production. The number of containers of sweet corn that the sweet corn plants will or would have produced per acre by the end of the insurance period, assuming normal growing conditions and practices.
Practical to replant. In lieu of the definition in section 1 of the Basic Provisions, our determination, after loss or damage to the insured crop, based on factors, including but not limited to moisture availability, condition of the field, marketing windows, and time to crop maturity, that replanting to the insured crop will allow the crop to attain maturity prior to the calendar date for the end of the insurance period (inability to obtain seed will not be considered when determining if it is practical to replant).
Sweet corn. A type of corn with kernels containing a high percentage of sugar that is adapted for human consumption as a vegetable.
A basic unit, as defined in section 1 of the Basic Provisions, will also be established for each planting period.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may select only one coverage level (and the corresponding amount of insurance designated in the actuarial documents for the applicable planting period and practice) for all the sweet corn in the county insured under this policy.
(b) The amount of insurance you choose for each planting period and practice must have the same percentage relationship to the maximum price offered by us for each planting period and practice. For example, if you choose 100 percent of the maximum amount of insurance for a specific planting period and practice, you must also choose 100 percent of the maximum amount of insurance for all other planting periods and practices.
(c) The production reporting requirements contained in section 3 of the Basic Provisions do not apply to sweet corn.
(d) If specified in the Special Provisions, we will limit your amount of insurance per acre if you have not produced the minimum amount of production of sweet corn contained in the Special Provisions in at least one of the three most recent crop years.
(e) The amounts of insurance are progressive by stages as follows:
| Stage | Percent of the amount of insurance per acre that you selected | Length of time |
|---|---|---|
| 1 | 65 | From planting through the beginning of tasseling (which is when the tassel becomes visible above the whorl). |
| Final | 100 | From tasseling until the acreage is harvested. |
(f) The indemnity payable for any acreage of sweet corn will be based on the stage the plants had achieved when damage occurred. Any acreage of sweet corn damaged in the first stage to the extent that the majority of producers in the area would not normally further care for it will have an amount of insurance based on the first stage for the purposes of establishing an indemnity even if you continue to care for the damaged sweet corn.
In accordance with section 4 of the Basic Provisions, the contract change date shown below is the date preceding the cancellation date:
| State and county | Date |
|---|---|
| All Florida counties; and all Georgia counties for which the Special Provisions designate a fall planting period | April 30. |
| Toombs County, Georgia; and all other states | November 30. |
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State and county | Cancellation and termination dates |
|---|---|
| Florida; and all Georgia counties for which the Special Provisions designate a fall planting period | July 31. |
| Alabama; and Toombs County, Georgia | February 15. |
| All other states | March 15. |
In addition to the requirements of section 6 of the Basic Provisions, you must report on or before the acreage reporting date contained in the Special Provisions for each planting period, all the acreage of sweet corn in the county insured under this policy in which you have a share.
In lieu of the premium amount determinations contained in section 7 of the Basic Provisions, the annual premium amount for each cultural practice (e.g., fall-planted irrigated) is determined by multiplying the final stage amount of insurance per acre by the premium rate for the cultural practice as established in the Actuarial Table, by the insured acreage, by your share at the time coverage begins, and by any applicable premium adjustment factors contained in the actuarial documents.
In accordance with section 8 of the Basic Provisions, the crop insured will be all the sweet corn in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is:
(1) Planted to be harvested and sold as fresh market sweet corn;
(2) Planted within the planting periods designated in the actuarial documents;
(3) Grown under an irrigated practice, unless otherwise provided in the Special Provisions; and
(4) Grown by a person who in at least one of the three previous crop years:
(i) Grew sweet corn for commercial sale; or
(ii) Participated in managing a sweet corn farming operation;
(c) That is not:
(1) Interplanted with another crop;
(2) Planted into an established grass or legume; or
(3) Grown for direct marketing, unless otherwise provided in the Special Provisions or by written agreement.
In addition to the provisions of section 9 of the Basic Provisions any acreage of sweet corn damaged during the planting period in which initial planting took place:
(a) Must be replanted if:
(1) Less than 75 percent of the plant stand remains;
(2) It is practical to replant; and
(3) The final day of the planting period has not passed at the time the crop was damaged.
(b) Whenever sweet corn is initially planted during the fall or winter planting periods and the final planting date for the planting period has passed, but it is considered practical to replant, you may elect:
(1) To replant such acreage and collect any replant payment due as specified in section 12. The initial planting period coverage will continue for such replanted acreage; or
(2) Not to replant such acreage and receive an indemnity based on the stage of growth the plants had attained at the time of damage. However, such an election will result in the acreage being uninsurable in the subsequent planting period.
In lieu of the provisions of section 11 of the Basic Provisions, coverage begins on each unit or part of a unit the later of the date we accept your application, or when the sweet corn is planted in each planting period. Coverage ends at the earliest of:
(a) Total destruction of the sweet corn on the unit;
(b) Abandonment of the sweet corn on the unit;
(c) The date harvest should have started on the unit on any acreage which will not be harvested;
(d) Final adjustment of a loss on the unit;
(e) Final harvest; or
(f) 100 days after the date of planting or replanting, unless otherwise provided in the Special Provisions.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Wildlife;
(4) Volcanic eruption;
(5) Earthquake;
(6) Insects, but not damage due to insufficient or improper application of pest control measures;
(7) Plant disease, but not damage due to insufficient or improper application of disease control measures; or
(8) Failure of the irrigation water supply, if caused by an insured cause of loss that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss due to:
(1) Failure to harvest in a timely manner unless harvest is prevented by one of the insurable causes of loss specified in section 11(a); or
(2) Failure to market the sweet corn unless such failure is due to actual physical damage caused by an insured cause of loss as specified in section 11(a). For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
(a) In accordance with section 13 of the Basic Provisions, a replanting payment is allowed if, due to an insured cause of loss, more than 25 percent of the plant stand will not produce sweet corn and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be the lesser of your actual cost of replanting or the result obtained by multiplying the per acre replanting payment amount contained in the Special Provisions by your insured share.
(c) In lieu of the provisions contained in section 13 of the Basic Provisions, limiting a replanting payment to one each crop year, only one replanting payment will be made for acreage planted during each planting period within the crop year.
In addition to the requirements contained in section 14 of the Basic Provisions, if you intend to claim an indemnity on any unit:
(a) You also must give us notice not later than 72 hours after the earliest of:
(1) The time you discontinue harvest of any acreage on the unit;
(2) The date harvest normally would start if any acreage on the unit will not be harvested; or
(3) The calendar date for the end of the insurance period.
(b) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested. We will conduct an appraisal that will be used to determine the value of your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal if you notify us that additional damage has occurred. These appraisals, and/or any acceptable production records provided by you, will be used to determine the value of your production to count.
(c) Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count of not less than the dollar amount of insurance (per acre) for the applicable stage if such failure results in our inability to accurately determine the value of production.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage in each stage by the amount of insurance per acre for the final stage;
(2) Multiplying each result in section 14(b)(1) by the percentage for the applicable stage (see section 3(e));
(3) Totaling the results of section 14(b)(2);
(4) Subtracting either of the following values from the result of section 14(b)(3):
(i) For other than catastrophic risk protection coverage, the total value of production to be counted (see section 14(c)); or
(ii) For catastrophic risk protection coverage, the result of multiplying the total value of production to be counted (see section 14(c)) by fifty-five percent; and
(5) Multiplying the result of section 14(b)(4) by your share.
For example:
You have a 100 percent share in 65.3 acres of fresh market sweet corn in the unit (15.0 acres in stage 1 and 50.3 acres in the final stage), with a dollar amount of insurance of $1,000 per acre. The 15.0 acre field was damaged by flood and appraisals of the crop determined there was no potential production to be counted. From the 50.3 acre field, you are only able to harvest 5,627 containers of sweet corn. The net value of all sweet corn production sold ($3.50 per container) is greater than the Minimum Value per container ($3.30). The 5,627 containers sold × $3.50 average net value per container = $19,694.50 value of your production to count. Your indemnity would be calculated as follows:
(1) 15.0 acres × $1,000 amount of insurance = $15,000 and 50.3 acres × $1,000 amount of insurance = $50,300;
(2) $15,000 × .65 (percent for stage 1) = $9,750 and $50,300 × 1.00 (percent for final stage) = $50,300;
(3) $9,750 + $50,300 = $60,050 amount of insurance for the unit;
(4) $60,050−$19,694.50 value of production to count = $40,355.50 loss;
(5) $40,355.50 × 100 percent share = $40,355.50 indemnity payment.
(c) The total value of production to count from all insurable acreage on the unit will include:
(1) Not less than the amount of insurance per acre for the stage for any acreage:
(i) That is abandoned;
(ii) Put to another use without our consent;
(iii) That is damaged solely by uninsured causes;
(iv) For which you fail to provide acceptable production records; or
(v) From which insurable production is sold by direct marketing and you fail to meet the requirements contained in section 13(b) of these Crop Provisions;
(2) The value of the following appraised sweet corn production will not be less than the dollar amount obtained by multiplying the number of containers of appraised sweet corn by the minimum value for the planting period:
(i) Unharvested marketable sweet corn production (unharvested production that is damaged or defective due to insurable causes and is not marketable will not be counted as production to count unless such production is later harvested and sold for any purpose);
(ii) Production lost due to uninsured causes; and
(iii) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) We may require you to continue to care for the crop so that a subsequent appraisal may be made or the crop harvested to determine actual production (If we require you to continue to care for the crop and you do not do so, the original appraisal will be used); or
(B) You may elect to continue to care for the crop, in which case the amount of production to count for the acreage will be the harvested production, or our reappraisal if the crop is not harvested.
(3) The value of all harvested production of sweet corn from the insurable acreage, except production that is sold by direct marketing as specified in section (c)(4) below:
(i) For sold production, will be the greater of:
(A) The dollar amount obtained by multiplying the total number of containers of sweet corn sold by the minimum value; or
(B) The dollar amount obtained by multiplying the average net value per container from all sweet corn sold by the total number of all containers of sweet corn sold.
(ii) For marketable sweet corn production that is not sold, will be the dollar amount obtained by multiplying the number of containers of such sweet corn by the minimum value for the planting period. Harvested production that is damaged or defective due to insurable causes and is not marketable will not be counted as production to count unless such production is sold.
(4) If all the requirements of insurability are met, the value of insurable production that is sold by direct marketing will be the greater of:
(i) The actual value received by you for direct marketed production; or
(ii) The dollar amount obtained by multiplying the total number of containers of appraised sweet corn sold by direct marketing by the minimum value.
The late and prevented planting provisions of the Basic Provisions are not applicable.
(a) The provisions of this option are continuous and will be attached to and made a part of your insurance policy, if:
(1) You elect the Minimum Value Option on your application, or on a form approved by us, on or before the sales closing date for the initial crop year in which you wish to insure sweet corn under this option, and pay the additional premium indicated in the actuarial documents for this optional coverage; and
(2) You have not elected coverage under the Catastrophic Risk Protection Endorsement.
(b) In lieu of the provisions contained in section 14(c)(3) of these Crop Provisions, the total value of harvested production that is not sold by direct marketing will be determined as follows:
(1) The dollar amount obtained by multiplying the average net value per container from all sweet corn sold (this result may not be less than the minimum value option amount if such amount is provided in the actuarial documents) by the total number of all containers of sweet corn sold;
(2) For marketable sweet corn production that is not sold, the value of such production will be the dollar amount obtained by multiplying the total number of containers of such sweet corn by the minimum value for the planting period. Harvested production that is damaged or defective due to insurable causes and is not marketable will not be included as production to count.
(c) If all the requirements of insurability are met, the value of insurable production that is sold by direct marketing will be the greater of:
(1) The actual value received by you for direct marketed production; or
(2) The dollar amount obtained by multiplying the total number of containers of sweet corn sold by direct marketing by the minimum value.
(d) This option may be canceled by either you or us for any succeeding crop year by giving written notice on or before the cancellation date preceding the crop year for which the cancellation of this option is to be effective.
§ 457.130 Macadamia tree crop insurance provisions.
The macadamia tree crop insurance provisions for the 2016 and succeeding crop years are as follows:
Age. The number of complete 12-month periods that have elapsed since the month the trees were set out or were grafted, whichever is later. Age determination will be made for each unit, or portion thereof, as of January 1 of each crop year.
Crop year. A period beginning with the date insurance attaches to the macadamia tree crop extending through December 31 of the same calendar year. The crop year is designated by the calendar year in which insurance attaches.
Damaged. Injury to the main trunk, scaffold limb(s), and any other subordinate limbs that reduces the productivity of the macadamia tree due to an insured cause of loss that occurs during the insurance period.
Destroyed. Trees damaged to the extent that we determine replacement, including grafts, is required.
Good farming practices. The cultural practices generally in use in the county for the crop to have normal growth and vigor, and are those recognized by the National Institute of Food and Agriculture as compatible with agronomic and weather conditions in the area.
Graft. The uniting of a macadamia shoot to an established macadamia tree rootstock for future production of macadamia nuts.
Interplanted. Acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Irrigated practice. A method by which the normal growth and vigor of the insured trees is maintained by artificially applying adequate quantities of water during the growing season by appropriate systems and at the proper times.
Rootstock. The root and stem portion of a macadamia tree to which a macadamia shoot can be grafted.
Scaffold limb. A major limb attached directly to the trunk.
(a) Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm serial number and by irrigated and non-irrigated practices are not applicable. Optional units may be established only if each optional unit is located on non-contiguous land or grown and insured under an organic farming practice, unless otherwise allowed by written agreement.
(b) You must have provided records, which can be independently verified, of acreage and age of trees for each unit for at least the last crop year.
(a) In addition to the requirements of section 3 of the Basic Provisions (§ 457.8):
(1) You may select only one dollar amount of insurance for all the macadamia trees in the county in each age group contained in the actuarial table that are insured under this policy. The dollar amount of insurance you choose for each age group must have the same percentage relationship to the maximum dollar amount offered by us for each age group. For example, if you choose 100 percent of the maximum dollar amount of insurance for one age group, you must also choose 100 percent of the maximum dollar amount of insurance for all other age groups.
(2) If the stand is less than 90 percent, based on the original planting pattern, the dollar amount of insurance will be reduced 1 percent for each percent below 90 percent. For example, if the dollar amount of insurance you selected is $2,000 and the stand is 85 percent of the original stand, the dollar amount of insurance on which any indemnity will be based is $1,900 ($2,000 multiplied by 0.95).
(3) You must report, by the sales closing date contained in the Special Provisions, by type if applicable:
(i) Any damage, removal of trees, change in practices, or any other circumstance that may reduce the dollar amount of insurance and the number of affected acres;
(ii) The number of trees on insurable and uninsurable acreage;
(iii) The month and year on which the trees were set out or grafted and the planting pattern;
(iv) For the first year of insurance following replacement, the month and year of replacement if more than 10 percent of the trees on any unit have been replaced in the previous five crop years; and
(v) For the first year of insurance for acreage interplanted with another perennial crop, and any time the planting pattern of such acreage is changed:
(A) The age of the interplanted crop, and type if applicable;
(B) The planting pattern; and
(C) Any other information that we request in order to establish your dollar amount of insurance.
We will reduce the dollar amount of insurance as necessary, based on our estimate of the effect of interplanted perennial crop, removal of trees, damage, change in practices, and any other circumstance that adversely affects the insured crop. If you fail to notify us of any circumstance that may reduce your dollar amount of insurance from previous levels, we will reduce your dollar amount of insurance as necessary at any time we become aware of the circumstance.
(b) The production reporting requirements contained in section 3 of the Basic Provisions (§ 457.8), do not apply to macadamia trees.
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is August 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are December 31.
In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all macadamia trees in the county for which a premium rate is provided by the actuarial table:
(a) In which you have a share;
(b) That are grown for the production of macadamia nuts;
(c) For which the rootstock is adapted to the area;
(d) That are at least one year of age when the insurance period begins; and
(e) That, if the orchard is inspected, is considered acceptable by us.
In lieu of the provisions in section 9 of the Basic Provisions (§ 457.8) that prohibit, that prohibit insurance attaching to a crop planted with another crop, macadamia trees interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) Coverage begins on January 1 of each crop year, except that for the year of application, if your application is received after December 22 but prior to January 1, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10-day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the orchard.
(2) The calendar date for the end of the insurance period for each crop year is December 31.
(b) In addition to the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage of macadamia trees on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Earthquake;
(4) Volcanic eruption;
(5) Wildlife, unless proper measures to control wildlife have not been taken; or
(6) Failure of irrigation water supply, if caused by an insured cause of loss that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions (§ 457.8), we will not insure against damage due to disease or insect infestation, unless adverse weather:
(1) Prevents the proper application of control measures or causes properly applied control measures to be ineffective; or
(2) Causes disease or insect infestation for which no effective control mechanism is available.
In addition to the requirements of section 14 of the Basic Provisions, in case of damage or probable loss, if you intend to claim an indemnity on any unit, you must allow us to inspect all insured acreage before pruning any damaged trees, removing any damaged trees, or removing any destroyed trees.
(a) We will determine your loss on a unit basis.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by the dollar amount of insurance per acre for each age group;
(2) Totaling the results in section 11(b)(1);
(3) Determine the applicable percent of loss, which is calculated as follows:
(i) Subtract the coverage level percent you elected from 100 percent;
(ii) Determine the actual percent of loss, which is determined as follows:
(A) For destroyed trees, divide the number of trees destroyed by the total number of trees and multiply by 100 to calculate the percent of loss;
(B) For damaged trees:
(1) Divide the number of trees damaged by the total number of trees (both damaged and undamaged) to calculate the amount of damage;
(2) Divide the number of damaged scaffold limbs by the total number of scaffold limbs on each damaged tree to calculate the amount of damage for each damaged tree;
(3) Total the results in (b)(3)(ii)(B)(2);
(4) Divide the result of (b)(3)(ii)(B)(3) by the number of damaged trees;
(5) Multiply the result of (b)(3)(ii)(B)(1) by the result of (b)(3)(ii)(B)(4), then multiply that result by 100 to calculate the percent of loss; and
(C) Add the results of sections 11(b)(3)(ii)(A) and (B).
(iii) Subtract the result obtained in section 11(b)(3)(i) from section 11(b)(3)(ii);
(iv) Divide the result in section 11(b)(3)(iii) by the coverage level you elected (For example, if you elected the 75 percent coverage level and your actual percent of loss was 70 percent, the percent of loss specified in section 11(b)(3) would be calculated as follows: 100%−75% = 25%; 70%−25% = 45%; 45% ÷ 75% = 60%.);
(4) Multiply the result of section 11(b)(3) by the total dollar amount of insurance obtained in section 11(b)(2); and
(5) Multiply the result in section 11(b)(4) by your share.
For example:
You select 65 percent coverage level and 100 percent of the price election on 10 acres of 9-year-old macadamia trees in the unit. Your share is 100 percent. The amount of insurance per acre is $5,850. There are 90 trees per unit. Thirty-five trees are destroyed. Your indemnity would be calculated as follows:
(1) 10 acres × $5,850 = $58,500;
(3)(i) 100 percent − 65 percent = 35 percent deductible;
(ii) 35 destroyed trees ÷ 90 total unit trees = 38.9 percent loss;
(iii) 38.9 percent loss − 35 percent deductible = 3.9 percent;
(iv) 3.9 percent ÷ 65 percent coverage level = 6.0 percent loss;
(4) $58,500 total amount of insurance × 6.0 percent loss = $3,510 loss; and
(5) $3,510 loss × 100 percent share = $3,510 indemnity payment.
(c) The total amount of loss will include both damaged trees and destroyed trees as follows:
(1) Any orchard with damage, destruction, or combined damage and destruction, that results in a total percent of loss greater than 80 percent due to an insured cause of loss will be considered to be 100 percent damaged and/or destroyed; and
(2) Any percent of damage by uninsured causes will not be included in the percent of loss.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.131 Macadamia nut crop insurance provisions.
The macadamia nut crop insurance provisions for the 2024 and succeeding crop years are as follows:
Age. The number of complete 12-month periods that have elapsed since the month the trees were set out or were grafted, whichever is later. An age determination will be made for each unit, or portion thereof, as of January 1 of each crop year.
Crop year. A period beginning with the date insurance attaches to the macadamia nut crop and extending through the normal harvest time. The crop year is designated by the calendar year in which the insurance period ends.
Floaters. Inedible, husked “field run” nuts identified by water flotation or laboratory testing.
Graft. The uniting of a macadamia shoot to an established macadamia tree rootstock for future production of macadamia nuts.
Harvest. Picking of mature macadamia nuts from the ground.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Peewees. Mature and immature wet in-shell nuts that are smaller than 16 mm (5/8 inch) in diameter.
Pound. A unit of weight equal to 16 ounces avoirdupois.
Production guarantee (per acre). The number of wet, in-shell pounds determined by multiplying the approved APH yield per acre by the coverage level percentage you elect.
Rootstock. The root and stem portion of a macadamia tree to which a macadamia shoot can be grafted.
Wet in-shell. The weight of the macadamia nuts as they are removed from the orchard with the nut meats in the shells after removal of the husk and excluding floaters and peewees but prior to being dried.
Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm number and by irrigated and non-irrigated practices are not applicable. Optional units may be established only if each optional unit is located on non-contiguous land or grown and insured under an organic farming practice, unless otherwise allowed by written agreement.
In addition to the requirements of section 3 of the Basic Provisions (§ 457.8):
(a) You may select only one price election for all the macadamia nuts in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may select one price election for each macadamia nut type designated in the actuarial documents. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) You must report, by the production reporting date designated in section 3 of the Basic Provisions (§ 457.8), by type if applicable:
(1) Any damage, removal of trees, change in practices, or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with another perennial crop, and any time the planting pattern of such acreage is changed:
(i) The age of the interplanted crop, and type if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your approved yield.
We will reduce the yield used to establish your production guarantee as necessary, based on our estimate of the effect of the following: interplanted perennial crop; removal of trees; damage; change in practices and any other circumstance on the yield potential of the insured crop. If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce your production guarantee as necessary at any time we become aware of the circumstance.
(c) The yield used to compute your production guarantee will be determined in accordance with Actual Production History (APH) regulations, 7 CFR part 400, subpart G, and applicable policy provisions unless damage or changes to the orchard or trees require establishment of the yield by another method. In the event of such damage or changes, the yield will be based on our appraisal of the potential of the insured acreage for the crop year.
(d) Instead of reporting your macadamia nut production for the previous crop year, as required by section 3 of the Basic Provisions, there is a one-year lag period. Each crop year you must report your production from two crop years ago, e.g., on the 2024 crop year production report, you will provide your 2022 crop year production.
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is August 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are December 31.
In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all macadamia nuts in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown on tree varieties that:
(1) Were commercially available when the trees were set out;
(2) Are adapted to the area; and
(3) Are grown on a rootstock that is adapted to the area.
(c) That are grown in an orchard that, if inspected, is considered acceptable by us;
(d) That are grown on trees that have reached at least the fifth leaf year, including the fifth leaf year after grafting if grafting occurs after set out, unless otherwise allowed by the Special Provisions; and
(e) That are produced from blooms that normally occur during the calendar year in which insurance attaches and that are normally harvested prior to the end of the insurance period.
In lieu of the provisions in section 9 of the Basic Provisions (§ 457.8) that prohibit insurance attaching to a crop planted with another crop, macadamia nuts interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) Coverage begins on January 1 of each crop year, except that for the year of application, if your application is received after December 22 but prior to January 1, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10-day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the orchard.
(2) The calendar date for the end of the insurance period for each crop year is the second June 30th after insurance attaches, or as specified in the Special Provisions.
(b) In addition to the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage of macadamia nuts on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Earthquake;
(4) Volcanic eruption;
(5) Wildlife, unless proper measures to control wildlife have not been taken; or
(6) Failure of irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions (§ 457.8), we will not insure against damage or loss of production due to:
(1) Disease or insect infestation, unless adverse weather:
(i) Prevents the proper application of control measures or causes properly applied control measures to be ineffective; or
(ii) Causes disease or insect infestation for which no effective control mechanism is available;
(2) Inability to market the macadamia nuts for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
In addition to the requirements of section 14 of the Basic Provisions (§ 457.8), the following will apply:
(a) You must notify us within 3 days of the date harvest should have started if the crop will not be harvested.
(b) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(c) If you intend to claim an indemnity on any unit, you must notify us at least 15 days prior to the beginning of harvest or immediately if damage is discovered during harvest, so that we may inspect the damaged production. You must not destroy the damaged crop until after we have given you written consent to do so. If you fail to meet the requirements of this section and such failure results in our inability to inspect the damaged production, we may consider all such production to be undamaged and include it as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by its respective production guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective price election for each type, if applicable;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted of each type, if applicable (see section 11(c)), by the respective price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the results in section 11(b)(5) from the results in section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
For example:
You select the 65 percent coverage level and 100 percent of the price election on 10 acres of macadamia nuts in the unit. Your share is 100 percent. Your production guarantee (per acre) is 4,000 pounds. The price election is $0.78. You are able to harvest 25,000 pounds. Your indemnity would be calculated as follows:
(1) 10 acres × 4,000 pounds = 40,000 pounds guarantee;
(2) 40,000 pounds × $0.78 price election = $31,200 total value of guarantee;
(4) 25,000 pounds production to count × $0.78 price election = $19,500 value of production to count;
(6) $31,200 total value of guarantee − $19,500 value of production to count = $11,700 loss; and
(7) $11,700 loss × 100 percent share = $11,700 indemnity payment.
(c) The total production to count (wet in-shell pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the requirements contained in section 10;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested production from the insurable acreage.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.132 Cranberry crop insurance provisions.
The cranberry crop insurance provisions for the 2023 and succeeding crop years are as follows:
Barrel. 100 pounds of cranberries.
Harvest. Removal of the cranberries from the bog.
Market price. The cash price per barrel of cranberries offered by buyers in the area in which you normally market the cranberries.
Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm number and by irrigated and non-irrigated practices are not applicable. Optional units may be established only if each optional unit is located on non-contiguous land, unless otherwise allowed by written agreement.
In addition to the requirements of section 3 of the Basic Provisions (§ 457.8):
(a) You may select only one price election for all the cranberries in the county insured under this policy.
(b) You must report, by the production reporting date designated in section 3 of the Basic Provisions (§ 457.8):
(1) Any damage, removal of vines, change in practices, or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The age of the vines; and
(3) Any other information that we request in order to establish your approved yield.
We will adjust the yield used to establish your production guarantee as necessary, based on our estimate of the effect of the removal of vines, damage, change in practices, and any other circumstance that may affect the yield potential of the insured crop. If you fail to notify us of any circumstance that may affect your yields from previous levels, we will adjust your production guarantee as necessary at any time we become aware of the circumstance.
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is August 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are November 20.
In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the cranberries in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for harvest as cranberries;
(c) That are grown in a bog that, if inspected, is considered acceptable by us; and
(d) That are grown on vines that have reached at least the fourth leaf year unless otherwise provided by the Special Provisions.
(a) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) Coverage begins on November 21 of each crop year, except that for the year of application, if your application is received after November 11, but prior to November 21, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10 day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the bog.
(2) The calendar date for the end of the insurance period for each crop year is November 20.
(b) In addition to the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage of cranberries on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for, such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the bog;
(3) Wildlife;
(4) Earthquake;
(5) Volcanic eruption;
(6) Failure of irrigation water supply, if caused by an insured peril that occurs during the insurance period; or
(7) Failure or breakdown of irrigation equipment or facilities due to direct damage to the irrigation equipment or facilities from an insurable cause of loss if the cranberry crop is damaged by freezing temperatures within 72 hours of such failure or breakdown and repair or replacement was not possible before damage occurred.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions (§ 457.8), we will not insure against damage or loss of production due to:
(1) Disease or insect infestation, unless adverse weather:
(i) Prevents the proper application of control measures or causes properly applied control measures to be ineffective; or
(ii) Causes disease or insect infestation for which no effective control mechanism is available; or
(2) Inability to market the cranberries for any reason other than actual physical damage from an insurable cause of loss specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
In addition to the requirements of section 14 of the Basic Provisions (§ 457.8):
(a) If you discover damage, or if you intend to claim an indemnity on any insured unit, you must give us notice of probable loss:
(1) At least 15 days before the beginning of any harvesting, or
(2) Immediately if probable loss is discovered after harvesting has begun.
(b) You must not sell or dispose of any damaged production until the earlier of 15 days from the date of notice of loss or when we give you written consent to do so.
(c) If you fail to meet the requirements of this section, and such failure results in our inability to inspect the damaged production, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee;
(2) Multiplying the result of section 10(b)(1) by the price election;
(3) Multiplying the total production to be counted, (see section 10(c)) by the price election;
(4) Subtracting the total in section 10(b)(3) from the total in section 10(b)(2); and
(5) Multiplying the result in section 10(b)(4) by your share.
(c) The total production to count (in barrels) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) Damaged solely by uninsured causes;
(C) For which you fail to provide acceptable production records; or
(D) Destroyed or put to another use without our consent;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we will use the appraised amount of production or defer the claim if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general to the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested production from the insurable acreage.
(3) Harvested production which, due to insurable causes, is determined not to meet the United States Standards for Fresh Cranberries if available, or would not meet those standards if properly handled, or does not meet the quality requirements of the receiving handler if the United States Standards for Fresh Cranberries, if not available, and such harvested production has a value less than 75 percent of the market price for cranberries meeting the minimum requirements will be adjusted by:
(i) Dividing the value per barrel of such cranberries by the market price per barrel for cranberries meeting the minimum requirements; and
(ii) Multiplying the result by the number of barrels of such cranberries.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.133 Prune crop insurance provisions.
The Prune Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Harvest. Picking of mature prunes from the trees or ground either by hand or machine.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Natural condition prunes. The condition of prunes in which they are normally delivered from a dehydrator or dry yard.
Prunes. Any type or variety of plums that is grown in the area for the production of prunes and that meets the requirements defined in the applicable Federal Marketing Agreement Dried Prune Order.
Standard prunes. Any natural condition prunes:
(a) That grade “C,” “U.S. Standard,” or better in accordance with the United States Standards for Grades of Dried Prunes; or
(b) That meet or exceed the grade standards in effect for the crop year if a Federal Marketing Agreement Dried Prune Order has been established for the area in which the insured crop is grown.
Ton. Two thousand (2,000) pounds avoirdupois.
Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable. Instead of establishing optional units by section, section equivalent, or FSA farm number optional units may be established if each optional unit is located on non-contiguous land.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one price election for all the prunes in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may select one price election for each type designated in the actuarial documents. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) You must report, by the production reporting date designated in section 3 of the Basic Provisions, by type if applicable:
(1) Any damage, removal of trees, change in practices, or any other circumstance that may reduce the expected yields below the yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with another perennial crop, and any time the planting pattern of such acreage is changed:
(i) The age of the interplanted crop, and type, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your approved yield.
(c) We will reduce the yield used to establish your production guarantee, as necessary, based on our estimate of the effect of any such situation listed in section 3(b) that may occur. If you fail to notify us of any situation in section 3(b), we will reduce the yield used to establish your production guarantee at any time we become aware of the circumstance. If the situation in section 3(b) occurred:
(1) Before the beginning of the insurance period, the yield used to establish your production guarantee will be reduced for the current crop year regardless of whether the situation was due to an insured or uninsured cause of loss;
(2) After the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee will be reduced for the current crop year only if the potential reduction in the yield used to establish your production guarantee is due to an uninsured cause of loss; or
(3) After the beginning of the insurance period and you fail to notify us by the production reporting date, an amount equal to the reduction in the yield will be added to the production to count calculated in section 11(c) due to uninsured causes when determining any indemnity. We may reduce the yield used to establish your production guarantee for the subsequent crop year to reflect any reduction in the productive capacity of the trees.
(d) You may not increase your elected or assigned coverage level or the ratio of your price election to the maximum price election if a cause of loss that could or would reduce the yield of the insured crop has occurred prior to the time that you request the increase.
In accordance with section 4 of the Basic Provisions, the contract change date is October 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are January 31.
In accordance with section 8 of the Basic Provisions, the crop insured will be all the prunes in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for the production of natural condition prunes;
(c) That are grown on trees that:
(1) Are listed as insurable types in the Special Provisions;
(2) Are grown on rootstock that is adapted to the area;
(3) Are irrigated (except where otherwise provided in the Special Provisions);
(4) Are grown in an orchard that, if inspected, is considered acceptable by us; and
(5) Have reached at least the seventh leaf year.
In lieu of the provisions in section 9 of the Basic Provisions that prohibit insurance attaching to a crop planted with another crop, prunes interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the insurability requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) For the year of application, coverage begins on March 1. For each subsequent crop year the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(2) The calendar date for the end of the insurance period for each crop year is:
(i) October 1 for California; or
(ii) October 15 for Oregon.
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any insurable acreage of prunes on or before the acreage reporting date for the crop year and if the acreage was insured by you the previous crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(c) If your prune policy is canceled or terminated for any crop year, in accordance with the terms of the policy, after insurance attached for that crop year but on or before the cancellation and termination dates, whichever is later, insurance will not be considered to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Wildlife;
(4) Earthquake;
(5) Volcanic eruption;
(6) Failure of the irrigation water supply, if due to a cause specified in section 9(a)(1) through (5) that occurs during the insurance period;
(7) Insects, but not damage due to insufficient or improper application of pest control measures; or
(8) Plant disease, but not damage due to insufficient or improper application of disease control measures.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to inability to market the prunes for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples in accordance with our procedures.
(b) In addition to the requirements of section 14 of the Basic Provisions, the following will apply:
(1) You must notify us within 3 days of the date harvest should have started if the crop will not be harvested.
(2) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing or is sold as fresh fruit production. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice that production will be harvested for direct marketing or sold as fresh fruit will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(3) If you intend to claim an indemnity on any unit, you must notify us at least 15 days prior to the beginning of harvest, or immediately if damage is discovered during harvest, so that we may inspect the damaged production.
(4) You must not destroy the damaged crop until after we have given you written consent to do so. If you fail to meet the requirements of this section and such failure results in our inability to inspect the damaged production, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by its respective production guarantee;
(2) Multiplying the result of 11(b)(1) by the respective price election for each type, if applicable;
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to count (see section 11(c)), of each type, if applicable, by its respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the result of section 11(b)(5) from the result of section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share.
Example 1:
You select 75 percent coverage level, 100 percent of the price election, and have a 100 percent share in 50.0 acres of type A prunes in the unit. The approved yield is 2.5 tons per acre and your price election is $1,000 per ton. You harvest 10.0 tons. Your indemnity would be calculated as follows:
(1) 50.0 acres × 2.5 tons × 0.75 = 93.75-ton production guarantee;
(2) 93.75-ton guarantee × $1,000 price election = $93,750 value of production guarantee;
(4) 10.0 tons × $1,000 price election = $10,000 value of production to count;
(6) $93,750 − $10,000 = $83,750 loss; and
(7) $83,750 × 1.000 share = $83,750 indemnity payment.
Example 2:
In addition to the information in the first example, you have an additional 50.0 acres of type B prunes with 100 percent share in the same unit. The approved yield is 2.0 tons per acre and the price election is $900 per ton. You harvest 5.0 tons. Your total indemnity for both types A and B would be calculated as follows:
(1) 50.0 acres × 2.5 tons × 0.75 = 93.75-ton production guarantee for type A and 50.0 acres × 2.0 × 0.75 tons = 75.0-ton production guarantee for type B;
(2) 93.75-ton guarantee × $1,000 price election = $93,750 value of production guarantee for type A and 75.0-ton guarantee × $900 price election = $67,500 value production guarantee for type B;
(3) $93,750 + $67,500 = $ 161,250 total value of production guarantee;
(4) 10.0 tons × $1,000 price election = $10,000 value of production to count for type A and 5.0 tons × $900 price election = $4,500 value of production to count for type B;
(5) $10,000 + $4,500 = $14,500 total value of production to count;
(6) $161,250 − $14,500 = $146,750 loss; and
(7) $146,750 loss × 1.000 share = $146,750 indemnity payment.
(c) The total production to count (in tons) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing or sold as fresh fruit if you fail to meet the requirements contained in section 10;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production that meets the definition of standard prunes; and
(iv) Potential production on insured acreage you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested production from the insurable acreage that:
(i) Meets the definition of standard prunes;
(ii) Is intended for use as fresh fruit;
(iii) Is sold as standard prunes; or
(iv) Is damaged due to uninsured causes.
(d) Any prune production harvested for fresh fruit will be converted to a dried prune weight basis by dividing the total amount (in tons) of fresh fruit production by 3.0.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.134 Peanut crop insurance provisions.
The Peanut Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
Base contract price. The price for farmers’ stock peanuts stipulated in the sheller contract, without regard to discounts or incentives that may apply, not to exceed the price election times the price factor specified in the Special Provisions.
Farmers’ stock peanuts. Picked or threshed peanuts produced in the United States, which are not shelled, crushed, cleaned, or otherwise changed (except for removal of foreign material, loose shelled kernels and excess moisture) from the condition in which peanuts are customarily marketed by producers.
Green peanuts. Peanuts that are harvested and marketed prior to maturity without drying or removal of moisture either by natural or artificial means.
Handler. A person who is a sheller, a buying point, a marketing association, or has a contract with a sheller or a marketing association to accept all of the peanuts marketed through the marketing association for the crop year. The handler acquires peanuts for resale, domestic consumption, processing, exportation, or crushing through a business involved in buying and selling peanuts or peanut products.
Harvest. The completion of digging and threshing and removal of peanuts from the field.
Marketing association. A cooperative approved by the Secretary of the United States Department of Agriculture to administer payment programs for peanuts.
Planted acreage. In addition to the requirement in the definition in the Basic Provisions, peanuts must initially be planted in a row pattern which permits mechanical cultivation, or that allows the peanuts to be cared for in a manner recognized by agricultural experts as a good farming practice. Acreage planted in any other manner will not be insurable unless otherwise provided by the Special Provisions or by written agreement.
Price election. In addition to the definition in the Basic Provisions, the price election for peanuts insured in accordance with a sheller contract will be the base contract price specified in the sheller contract.
Price factor. The factor specified in the Special Provisions that places limits on the base contract price.
Sheller. Any business enterprise regularly engaged in processing peanuts for human consumption; that possesses all licenses and permits for processing peanuts required by the state in which it operates; and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process contracted peanuts within a reasonable amount of time after harvest.
Sheller contract. A written agreement between the producer and a sheller, or the producer and a handler, containing at a minimum:
(a) The producer’s commitment to plant and grow peanuts, and to deliver the peanut production to the sheller or handler;
(b) The sheller’s or handler’s commitment to purchase all the production stated in the sheller contract (an option to purchase is not a commitment); and
(c) A base contract price.
If the agreement fails to contain any of these terms, it will not be considered a sheller contract.
In accordance with the Basic Provisions, basic and optional units are applicable, unless limited by the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) The price election percentage you choose for peanuts which are not insured in accordance with a sheller contract (may also include peanuts in excess of the amount required to fulfill your sheller contract) and for peanuts insured in accordance with a sheller contract must have the same percentage relationship to the maximum price election offered by us for peanuts not insured in accordance with a sheller contract. For example, if you choose 100 percent of the maximum price election for peanuts not insured in accordance with a sheller contract, you must also choose 100 percent of the applicable price election for peanuts insured in accordance with a sheller contract.
(b) You may not insure more pounds of peanuts than your production guarantee (per acre) multiplied by the number of acres that will be planted to peanuts. For the purposes of determining the guarantee, premiums, indemnities, replant payments, and prevented planting payments:
(1) Where all production of peanuts is grown under one or more sheller contracts, you may elect a price election to cover all insurable peanuts that is the base contract price contained in such sheller contracts or the price contained in the Special Provisions.
(2) Where some peanuts are grown under one or more sheller contracts but some peanuts are not grown under a sheller contract, you may elect:
(i) The price election contained in the Special Provisions to cover all insurable peanuts; or
(ii) The price election using the base contract price for peanuts grown under a sheller contract and the price contained in the Special Provisions for peanuts not grown under a sheller contract.
(3) Where none of the peanuts are grown under a sheller contract, the price election will be the price contained in the Special Provisions.
(c) Any peanuts excluded from the sheller contract at any time during the crop year will be insured at the price election specified in the Special Provisions.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State and county | Dates |
|---|---|
| Jackson, Victoria, Golliad, Bee, Live Oak, McMullen, La Salle, and Dimmit Counties, Texas and all Texas Counties lying south, thereof | January 15. |
| El Paso, Hudspeth, Culberson, Reeves, Loving, Winkler, Ector, Upton, Reagan, Sterling, Coke, Tom Green, Concho, McCulloch, San Saba, Mills, Hamilton, Bosque, Johnson, Tarrant, Wise, Cooke Counties, Texas, and all Texas counties south and east thereof; and all other states, except New Mexico, Oklahoma, and Virginia | February 28. |
| New Mexico; Oklahoma; Virginia; and all other Texas counties | March 15. |
In addition to the requirements of section 6 of the Basic Provisions, you must provide a copy of all sheller contracts to us on or before the acreage reporting date if you wish to insure your peanuts in accordance with your sheller contract.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the peanuts in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for the purpose of marketing as farmers’ stock peanuts;
(3) That are a type of peanut designated in the Special Provisions as being insurable;
(4) That are not (unless allowed by the Special Provisions or by written agreement):
(i) Planted for the purpose of harvesting as green peanuts;
(ii) Interplanted with another crop; or
(iii) Planted into an established grass or legume; and
(5) Whether or not the peanuts are grown in accordance with a sheller contract (if not grown in accordance with the sheller contract, the peanuts will be valued at the price election issued by FCIC for the purposes of determining the production guarantee, premium, and indemnity).
(b) You will be considered to have a share in the insured crop if, under the sheller contract, you retain control of the acreage on which the peanuts are grown, you are at risk of a production loss, and the sheller contract provides for delivery of the peanuts to the sheller or handler and for a stipulated base contract price.
(c) A peanut producer who is also a sheller or handler may establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or officers of the sheller or handler must execute and adopt a resolution that contains the same terms as a sheller contract. Such resolution will be considered a sheller contract under this policy; and
(3) Our inspection reveals that the processing facilities comply with the definition of a sheller contained in these Crop Provisions.
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop damaged before the final planting date, to the extent that the majority of producers in the area would normally not further care for the crop, must be replanted unless we agree that replanting is not practical.
(b) We will not insure any acreage:
(1) On which peanuts are grown using no-till or minimum tillage farming methods unless allowed by the Special Provisions or written agreement; or
(2) Which does not meet the rotation requirements, if any, contained in the Special Provisions.
In accordance with the provisions of section 11 of the Basic Provisions, the calendar date for the end of the insurance period is the date immediately following planting as follows:
(a) November 30 in all states except New Mexico, Oklahoma, and Texas; and
(b) December 31 in New Mexico, Oklahoma, and Texas.
In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if due to a cause of loss contained in section 11(a) through (g) that occurs during the insurance period.
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that limit the amount of a replant payment to the actual cost of replanting, the amount of any replanting payment will be determined in accordance with these Crop Provisions;
(2) Except as specified in section 12(a)(1), you must comply with all requirements regarding replanting payments contained in section 13 of the Basic Provisions; and
(3) The insured crop must be damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be the lesser of:
(1) 20.0 percent of the production guarantee, multiplied by your price election, multiplied by your share; or
(2) $80.00 multiplied by your insured share.
(c) If there are different base contract prices or you also have insurable peanuts not grown under a contract:
(1) If the sheller contracts are for different types of peanuts or one type of peanut is grown under a sheller contract and another is not, replanting payments will be valued using the price election elected by you for the planted acreage, as applicable (For an example, you have two sheller contracts and the base contract price is $0.23 per pound for Runner type peanuts, then $0.23 per pound will be used for the value of any replanted Runner type peanut acreage. If the base contract price is $0.21 per pound for Spanish type peanuts, then $0.21 per pound will be used for the value of any replanted Spanish type peanut acreage.
(2) If the sheller contracts are for the same type of peanuts but they have different base contract prices:
(i) If the peanuts under each sheller contract are insured in separate optional units, each respective price election from each sheller contract will apply to each respective unit; or
(ii) If all or some of peanuts under both sheller contracts are insured in the same unit, then the replanted acreage will be prorated to each contract based on the number of acres needed to fulfill each contract (For example, if there are 20 acres in the unit and 10 were replanted, the production guarantee per acre for the unit is 2,000 pounds per acre, and the contract for $0.23 was for 25,000 pounds and the contract for $0.21 was for 15,000 pounds, then the acreage under the $0.23 contract constitutes 62.5 percent of the acreage in the unit (25,000/40,000) and the other sheller contract 37.5 percent of the acreage (15,000/40,000). Of the 10 acres replanted, 6.25 acres (10 × .625) would be paid at the $0.23 price election and 3.75 acres (10 × .375) would be paid at the $0.21 price election).
(3) If the peanuts are not grown under a contract, the replanting payments will be valued using the price election as specified in the Special Provisions. If the unit has peanuts grown under a sheller contract and peanuts not grown under a sheller contract, the replanted acreage must be prorated between the contract and non-contract acreage by determining the acreage grown under a contract and the remaining acreage in the unit (For example, if there are 20 acres in the unit and 10 were replanted, the production guarantee per acre for the unit is 2,000 pounds per acre, there is a sheller contract for $0.23 for 25,000 pounds, the remaining peanuts are not grown under a sheller contract, and the price election in the Special Provisions is for $0.20. The peanuts under the sheller contract constitute 62.5 percent (25,000/40,000) of the acreage in the unit and remaining peanuts constitute 37.5 percent (40,000−25,000/40,000) of the acreage. Of the 10 acres replanted, 6.25 acres (10 × .625) would be paid with the liability based on the $0.23 price election and 3.75 acres (10 × .375) would be paid with the liability based on the $0.20 price election).
(d) When the crop is replanted using a practice that is uninsurable for an original planting, the liability on the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
(e) Replanting payments will be calculated using your price election and production guarantee for the crop type that is replanted and insured. A revised acreage report will be required to reflect the replanted type, if applicable.
Representative samples are required in accordance with section 14 of the Basic Provisions.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such units in proportion to our liability for the harvested acreage for the unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the number of insured acres by the respective production guarantee (per acre) for peanuts insured under a sheller contract or not insured under a sheller contract, as applicable;
(2) Multiplying each result of section 14(b)(1) by the applicable price election for peanuts insured at the base contract price or the price election specified in the Special Provisions, as applicable;
(3) Totaling the results of section 14(b)(2);
(4) Multiplying the production to count by the respective price election (If you have one or more sheller contracts, we will value your production to count by using your highest price election first and will continue in decreasing order to your lowest price election based on the amount of peanuts insured at each price election);
(5) Totaling the results of section 14(b)(4);
(6) Subtracting the result of section 14(b)(5) from the result of section 14(b)(3); and
(7) Multiplying the result in section 14(b)(6) by your share.
Example #1 (without a sheller contract):
You have 100 percent share in 25 acres of Valencia peanuts in the unit, with a production guarantee (per acre) of 2,000 pounds, the price election specified in the Special Provisions is $0.17 per pound, and your production to count is 43,000 pounds.
(1) 25 acres × 2,000 pounds = 50,000 pound guarantee;
(2) 50,000 pound guarantee × $0.17 price election specified in the Special Provisions = $8,500.00 guarantee;
(3) 43,000 pounds of production to count × $0.17 price election specified in the Special Provisions = $7,310.00;
(4) $8,500.00 guarantee−$7,310.00 = $1,190.00; and
(5) $1,190.00 × 1.000 = $1,190.00; Indemnity = $1,190.00.
Example #2 (with a sheller contract):
You have 100 percent share in 25 acres of Valencia peanuts in the unit, with a production guarantee (per acre) of 2,000 pounds. You have two sheller contracts, the first is for 25,000 pounds, price election (contract) is $0.23 per pound, and the second is for 10,000 pounds, price election (contract) is $0.21 per pound. The price election (non-contract) specified in the Special Provisions is $0.17 per pound, and your production to count is 43,000 pounds.
(1) 25 acres × 2,000 pounds = 50,000 pound guarantee;
(2) 25,000 pounds contracted × $0.23 price election (contract) = $5,750.00;
10,000 pounds contracted × $0.21 price election (contract) = $2,100.00;
50,000 pound guarantee−25,000 pounds contracted−10,000 pounds contracted = 15,000 pounds not contracted;
15,000 pounds not contracted × $0.17 price election (non-contract) specified in the Special Provisions = $2,550.00;
(3) $5,750.00 + $2,100.00 + $2,550.00 = $10,400.00 guarantee;
(4) 43,000 pounds of production to count:
25,000 pounds contracted × $0.23 price election (contract) = $5,750.00;
10,000 pounds contracted × $0.21 price election (contract) = $2,100.00;
43,000 pounds of production to count−25,000 pounds contracted (at $0.23 per pound)−10,000 pounds contracted (at $0.21 per pound) = 8,000 pounds;
8,000 pounds × $0.17 price election (non-contract) specified in the Special Provisions = $1,360.00;
(5) $5,750.00 + $2,100.00 + $1,360.00 = $9,210.00;
(6) $10,400.00 guarantee−$9,210.00 = $1,190.00; and
(7) $1,190.00 × 1.000 = $1,190.00;
Indemnity = $1,190.00.
(c) The total production to count (in pounds) from all insurable acreage on the unit will include all appraised and harvested production.
(d) All appraised production will include:
(1) Not less than the production guarantee for acreage:
(i) That is abandoned;
(ii) Put to another use without our consent;
(iii) Damaged solely by uninsured causes; or
(iv) For which you fail to provide production records that are acceptable to us.
(2) Production lost due to uninsured causes;
(3) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with section 14(e));
(4) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for the acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(i) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(ii) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(5) All harvested production from the insurable acreage.
(e) Mature peanuts may be adjusted for quality when production has been damaged by an insured cause of loss.
(1) To enable us to determine the number of pounds, price per pound, and the quality of production for any peanuts that qualify for quality adjustment, we must be given the opportunity to have such peanuts inspected and graded before you dispose of them.
(2) If you dispose of any production without giving us the opportunity to have the peanuts inspected and graded, the gross weight of such production will be used in determining total production to count unless you submit a marketing record satisfactory to us which clearly shows the number of pounds, price per pound, and quality of such peanuts.
(3) Such production to count will be reduced if the price per pound received for damaged peanuts is less than 85 percent of the price election by:
(i) Dividing the price per pound for the damaged peanuts, as determined by us in accordance with section 14(e)(1), received for the insured type of peanuts by the applicable price election; and
(ii) Multiplying this result by the number of pounds of such production.
(a) Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
(b) In addition to the provisions of section 17(i) of the Basic Provisions, if there are different base contract prices or you also have insurable peanuts not grown under a contract:
(1) If the sheller contracts are for different types of peanuts or one type of peanut is grown under a sheller contract and another is not, the liability will be determined using the price election elected by you for planted acreage, as applicable (For an example, you have two sheller contracts and the base contract price is $0.23 per pound for Runner type peanuts, then $0.23 per pound will be used for the value of any prevented planting Runner type peanut acreage. If the base contract price is $0.21 per pound for Spanish type peanuts, then $0.21 per pound will be used for the value of any prevented planting Spanish type peanut acreage.
(2) If the sheller contracts are for the same type of peanuts but they have different base contract prices:
(i) If the peanuts grown under each sheller contract are insured in separate optional units, the liability will be determined using each respective price election for the prevented planting acreage in each respective unit; or
(ii) If all or some of the peanuts grown under the sheller contracts are insured in the same unit, then the liability for each contract must be determined separately using the respective price election and the number of eligible prevented planting acres to which the liability applies and will be determined by prorating prevented planting acreage to each contract based on the number of acres needed to fulfill each contract (For example, if there are 20 acres in the unit and 10 were prevented from planting, the production guarantee per acre for the unit is 2,000 pounds per acre, and the contract for $0.23 was for 25,000 pounds and the contract for $0.21 was for 15,000 pounds, then the acreage under the $0.23 contract constitutes 62.5 percent (25,000/40,000) of the acreage in the unit and the other contract 37.5 percent (15,000/40,000) of the acreage. Of the 10 acres prevented from planting, 6.25 acres (10 × .625) would be paid with the liability based on the $0.23 price election and 3.75 acres (10 × .375) would be paid with the liability based on the $0.21 price election).
(3) If the peanuts are not grown under a contract, the liability for such peanuts will be based on the price election as specified in the Special Provisions. If the unit has peanuts grown under a sheller contract and peanuts not grown under a sheller contract, the eligible prevented planting acreage must be determined by determining the acreage grown under a contract and the remaining acreage in the unit (For example, if there are 20 acres in the unit and 10 were prevented from planting, the production guarantee per acre for the unit is 2,000 pounds per acre, there is a sheller contract for $0.23 for 25,000 pounds, the remaining peanuts are not grown under a sheller contract, and the price election in the Special Provisions is for $0.20. The peanuts under the sheller contract constitute 62.5 percent (25,000/40,000) of the acreage in the unit and remaining peanuts constitute 37.5 percent (40,000−25,000/40,000) of the acreage. Of the 10 acres prevented from planting, 6.25 acres (10 × .625) would be paid with the liability based on the $0.23 price election and 3.75 acres (10 × .375) would be paid with the liability based on the $0.20 price election).
§ 457.135 Onion crop insurance provisions.
The Onion Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Damaged onion production. Storage type onions that do not grade U.S. No. 1 or do not satisfy any other standards that may be contained in the Special Provisions; or non-storage type onions which do not satisfy standards contained in any applicable marketing order or other standards that may be contained in the Special Provisions.
Direct seeded. Onions planted by placing onion seed by machine or by hand at the correct depth, into a seedbed that has been properly prepared for the planting method and production practice.
Harvest. Removal of the onions from the field after topping and lifting or digging.
Hundredweight. 100 pounds avoirdupois.
Lifting or digging. A pre-harvest process in which the onion roots are severed from the soil and the onion bulbs laid on the surface of the soil for drying in the field.
Non-storage onions. Onions of a Bermuda, Granex, or Grano variety, or hybrids developed from these varieties, that are harvested as a bulb and dried only a short time, and consequently have a higher moisture content. They are thinner skinned, contain a higher sugar content, and are milder in flavor than storage onions. Due to a higher moisture and sugar content, they are subject to deterioration both on the surface and internally if not used shortly after harvest.
Onion production. Onions of recoverable size and condition, with excess dirt and foliage material removed and that are not considered damaged onion production.
Planted acreage. In addition to the definition contained in the Basic Provisions, onions, including sets, must be direct seeded in rows or transplanted in rows.
Processor. Any business enterprise regularly engaged in buying and processing onions, that possesses all licenses and permits for processing onions required by the State in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process contracted onions within a reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a processor, containing at a minimum:
(a) The producer’s commitment to plant and grow onions of the types designated in the Special Provisions and to deliver the onion production to the processor;
(b) The processor’s commitment to purchase all the production from a specified number of acres or the specified quantity of onion production stated in the processor contract; and
(c) The price that will be paid for the production.
Production guarantee (per acre). In lieu of the definition contained in section 1 of the Basic Provisions, the production guarantee will be determined by stage as follows:
(a) First stage production guarantee – Forty-five percent (45%) of the final stage production guarantee for direct seeded and transplanted storage and non-storage onions, unless otherwise specified in the Special Provisions.
(b) Second stage production guarantee – Seventy percent (70%) of the final stage production guarantee for direct seeded storage onions and 60 percent (60%) of the final stage production guarantee for transplanted storage onions and all non-storage onions, unless otherwise specified in the Special Provisions.
(c) Final stage production guarantee – The quantity of onions (in hundredweight) determined by multiplying the approved yield per acre by the coverage level percentage you elect.
Sets. Onion bulbs that are planted by hand or by machine.
Storage onions. Onions, other than a Bermuda, Granex, or Grano variety, or hybrids developed from these varieties, that are harvested as a bulb and dried to a lower moisture content, are firmer, have more outer layers of paper-like skin, and are darker in color than non-storage onions. They are more pungent, have a lower sugar content, and can be stored for several months under proper conditions prior to use without deterioration.
Topping. A pre-harvest process to initiate curing, in which onion foliage is removed or broken.
Transplanted. Onions planted by placing of the onion plant or sets, by machine or by hand at the correct depth, into a seedbed that has been properly prepared for the planting method and production practice.
In addition to the requirements of section 34 of the Basic Provisions, optional units may be established by type, if separate types are designated in the Special Provisions.
(a) In addition to the requirements of section 3 of the Basic Provisions (§ 457.8), you may select only one price election for all the onions in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may select one price election for each onion type designated in the Special Provisions. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) Your production guarantee progresses, in stages, to the final stage production guarantee. Stages will be determined on an acre basis. At least 75 percent (75%) of the plants on such acreage must be at the same stage to qualify for the first and second stages. The stages are as follows:
(1) First stage extends:
(i) For direct seeded storage and non-storage onions, from planting until the emergence of the fourth leaf; and
(ii) For transplanted storage and non-storage onions, from transplanting of onion plants or sets through the 30th day after transplanting.
(2) Second stage extends:
(i) For direct seeded storage and non-storage onions, from the emergence of the fourth leaf until eligible for the final stage; and
(ii) For transplanted storage and non-storage onions, from the 31st day after transplanting of onion plants or sets until eligible for the final stage.
(3) Final stage extends from the completion of topping and lifting or digging on the acreage until the end of the insurance period.
(c) Any acreage of onions damaged in the first or second stage, to the extent that the majority of producers in the area would not normally further care for the onions, will have a production guarantee for indemnity purposes, based on the stage in which the damage occurred, even if you continue to care for the damaged onions.
In accordance with section 4 of the Basic Provisions, the contract change date is:
(a) June 30 preceding the cancellation date for counties with an August 31, September 30, or November 30 cancellation date;
(b) November 30 preceding the cancellation date for counties with a February 1 cancellation date; or
(c) As designated in the Special Provisions.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are as follows, unless otherwise designated in the Special Provisions:
| State & county | Cancellation date | Termination
date |
|---|---|---|
| Arizona; Georgia; Uvalde County, Texas, and all Texas Counties lying south thereof | August 31 | August 31. |
| Umatilla County, Oregon; and Walla Walla County, Washington | August 31 | September 30. |
| All California Counties, except Lassen, Modoc, and Shasta | September 30 | September 30. |
| All other states and counties | February 1 | February 1. |
In addition to the provisions of section 6 of the Basic Provisions, if the Special Provisions require a processor contract to insure your onions, you must provide a copy of all your processor contracts to us on or before the acreage reporting date.
In lieu of the provisions of section 7(c) of the Basic Provisions (§ 457.8), the annual premium amount is computed by multiplying the final stage production guarantee by the price election, the premium rate, the insured acreage, your share at the time of planting, and any applicable premium adjustment factors contained in the actuarial documents.
In accordance with section 8 of the Basic Provisions, the crop insured will be all the storage and non-storage onions (excluding green (bunch) or seed onions, chives, garlic, leeks, shallots, and scallions) in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are planted for harvest as either storage onions or non-storage onions;
(c) That are not (unless allowed by the Special Provisions or by written agreement):
(1) Interplanted with another crop, unless the onions are interplanted with a windbreak crop and the windbreak crop is destroyed within 70 days after completion of seeding or transplanting; or
(2) Planted into an established grass or legume.
In addition to the provisions of section 9 of the Basic Provisions (§ 457.8), we will not insure any acreage of the insured crop that:
(a) Was planted the previous year to storage or non-storage onions, green (bunch) onions, seed onions, chives, garlic, leeks, shallots, or scallions unless different rotation requirements are designated in the Special Provisions or a written agreement insures such acreage; or
(b) Is damaged before the final planting date to the extent that the majority of producers in the area would normally not further care for the crop and is not replanted, unless we agree that it is not practical to replant.
(a) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8), the acreage must be planted on or before the final planting date designated in the Special Provisions except as allowed in section 16 of the Basic Provisions.
(b) In accordance with the provisions of section 11 of the Basic Provisions, unless otherwise designated in the Special Provisions, the insurance period ends at the earliest of:
(1) The calendar date for the end of the insurance period as follows:
(i) May 20 for 1015 Super Sweets, and any other non-storage onions in Cameron, Hidalgo, Starr, and Willacy Counties, Texas;
(ii) June 1 for Vidalia, and any other non-storage onions planted in the state of Georgia;
(iii) June 30 for all storage and non-storage onions in Arizona;
(iv) July 15 for 1015 Super Sweets, and any other non-storage onions for all Texas counties except Cameron, Hidalgo, Starr, and Willacy;
(v) July 31 for fall planted non-storage onions in Oregon and Washington;
(vi) August 31 for all non-storage onions not otherwise specified; and
(vii) October 15 for all storage onions not otherwise specified; or
(2) In addition to the requirements of section 11(b) of the Basic Provisions, fourteen days after lifting or digging.
(a) In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife, unless control measures have not been taken;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(b) In addition to the causes of loss not insured against as listed in section 12 of the Basic Provisions (§ 457.8), we will not insure against any loss of production due to damage that occurs or becomes evident after the end of the insurance period, including, but not limited to, loss of production that occurs after onions have been placed in storage.
(a) In accordance with section 13 of the Basic Provisions (§ 457.8), a replanting payment is allowed if the crop is damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the final stage production guarantee for the acreage and we determine that it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be your actual cost for replanting, but will not exceed the lesser of:
(1) 7 percent of the final stage production guarantee multiplied by your price election for the type originally planted and by your insured share; or
(2) 18 hundredweight multiplied by your price election for the type originally planted and by your insured share.
(c) When onions are replanted using a practice that is uninsurable as an original planting, the liability for the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
(a) In accordance with the requirements of section 14 of the Basic Provisions, any representative samples of the crop that may be required must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be topped, lifted, dug, harvested or destroyed until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed.
(b) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count that is not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(a) We will determine your loss on a unit basis. In the event you are unable to provide production records:
(1) For any optional units, we will combine all optional units for which acceptable production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee;
(2) Multiplying each result of section 14(b)(1) by the respective price election;
(3) Totaling the results in section 14(b)(2);
(4) Multiplying the total production to be counted (see section 14(c)) by the respective price elections you chose;
(5) Totaling the results of section 14(b)(4);
(6) Subtracting the result in section 14(b)(5) from the result in 14(b)(3); and
(7) Multiplying the result in section 14(b)(6) by your share.
For Example:
You have a 100 percent share in 100 acres of a unit of transplanted storage onions with a production guarantee of 200 hundredweight per acre, and you select 100 percent of the price election of $20.00 per hundredweight. Your crop suffers a covered cause of loss on 25 acres during the second stage which has a second stage production guarantee of 60 percent of the final stage production guarantee which equals 120 hundredweight per acre. The appraised production on the 25 acres was 2,500 hundredweight of onion production. Your harvested onion production on the remaining 75 acres is 16,000 hundredweight of harvested production to count. Your indemnity will be calculated as follows:
(1) 25 acres × 120 hundredweight (200 × .60) second stage production guarantee = 3,000 hundredweight, and 75 acres × 200 hundredweight final stage production guarantee = 15,000 hundredweight;
(2) 3,000 hundredweight second stage production guarantee × $20.00 price election = $60,000 value of second stage production guarantee, and 15,000 hundredweight final stage production guarantee × $20.00 price election = $300,000 value of final stage production guarantee;
(3) $60,000 value of second stage production guarantee + $300,000 value of final stage production guarantee = $360,000 total value of production guarantee;
(4) 500 hundredweight second stage production to count (from step 4 of the section 14(c)(1)(iv) example) × $20.00 price election = $10,000 value of second stage production to count, and 16,000 hundredweight final stage production to count × $20.00 price election = $320,000 value of final stage production to count;
(5) $10,000 value of second stage production to count + $320,000 value of final stage production to count = $330,000 total value of production to count;
(6) $360,000 total value of production guarantee − $330,000 total value of production to count = $30,000 value of loss; and
(7) $30,000 × 100 percent share = $30,000 indemnity payment.
(c) The total production (in hundredweight) to count from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is direct marketed to consumers if you fail to meet the requirements contained in section 13;
(C) Put to another use without our consent;
(D) That is damaged solely by uninsured causes; or
(E) For which you fail to provide production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested onion production (mature unharvested production may be adjusted based on the percent of damaged onion production in accordance with section 14(d));
(iv) For acreage that does not qualify for the final stage production guarantee, and is not subject to section 14 (c)(1)(i) and (ii), the appraised production is reduced by the difference between the first or second stage (as applicable) and the final stage production guarantee; and
For Example:
You have 100 acres of a unit of transplanted storage onions with a production guarantee of 200 hundredweight per acre. Your crop suffers a covered cause of loss on 25 acres during the second stage which has a second stage production guarantee of 60 percent of the final stage production guarantee. The appraised production on the 25 acres was 2,500 hundredweight of onion production. Your second stage production to count on the 25 acres will be calculated as follows:
(1) 25 acres × 200 hundredweight final stage production guarantee = 5,000 hundredweight final stage production guarantee,
(2) 5,000 hundredweight final stage production guarantee × 60 percent second stage production guarantee = 3,000 hundredweight second stage production guarantee,
(3) 5,000 hundredweight final stage production guarantee −3,000 hundredweight second stage production guarantee = 2,000 hundredweight difference between second stage and final stage production guarantee, and
(4) 2,500 hundredweight appraised −2,000 hundredweight difference = 500 hundredweight second stage production to count (for step 4 of the section 14(b) example).
(v) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end if you put the acreage to another use or abandon the crop.
(vi) If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us. (The amount of production to count for such acreage will be based on the harvested onion production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested onion production, or our reappraisal if additional damage occurs and the crop is not harvested.
(2) All harvested onion production from the insurable acreage.
(d) If the damage to harvested or unharvested onion production exceeds the percentage shown in the Special Provisions for the type, no production will be counted for that unit or portion of a unit unless such damaged onion production from that acreage is sold. If sold, the hundredweight of production to be counted will be adjusted by dividing the price received for the damaged onion production by the price election and multiplying the resulting factor times the hundredweight sold.
(e) The extent of any damaged onion production must be determined not later than the time onions are placed in storage if the production is stored prior to sale, or the date the onions are delivered to a packer, processor, or other handler if production is not stored.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your final stage production guarantee for timely planted acreage. Additional prevented planting coverage levels are not available for onions.
§ 457.136 Tobacco crop insurance provisions.
The Tobacco Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
FCIC policies:
Reinsured policies:
Both FCIC and reinsured policies:
Average value. For appraised production, the value of such production divided by the appraised pounds for the tobacco types. For harvested production, the value of such production divided by the harvested pounds for the tobacco type.
Basic unit. In lieu of the definition in the Basic Provisions, a basic unit is all insurable acreage of an insurable type of tobacco in the county in which you have a share on the date of planting for the crop year and that is indentified by a single FSA farm serial number at the time insurance first attaches under these provisions for the crop year.
Harvest. Cutting or priming and removing all insured tobacco from the unit.
Hydroponic plants. Seedlings grown in liquid nutrient solutions.
Late planting period. In lieu of the definition in section 1 of the Basic Provisions, the period that begins the day after the final planting date for the insured crop and ends 15 days after the final planting date, unless otherwise specified in the Special Provisions.
Planted acreage. In addition to the definition contained in the Basic provisions, land in which tobacco seedlings, including hydroponic plants, have been transplanted by hand or machine from the tobacco bed to the field.
Pound. Sixteen ounces avoirdupois.
Priming. A method of harvesting tobacco by which one or more leaves are removed from the stalk as they mature.
Tobacco bed. An area protected from adverse weather in which tobacco seeds are sown and seedlings are grown until transplanted into the tobacco field by hand or machine.
Tobacco types. Insurable tobacco as shown on the Special Provisions of Insurance.
A basic unit will be determined in accordance with the definition of basic unit contained in section 1 of these Crop Provisions. Optional and enterprise units may be allowed by the Special Provisions of Insurance.
In addition to the requirements of section 3 of the Basic Provisions, you must select only one price election percentage and coverage level for each tobacco type designated in the Special Provisions of Insurance that you elect to insure.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are March 15.
In addition to the requirements of section 6 of the Basic Provisions, you must provide a copy of any written lease agreement, if applicable, between you and any landlord or tenant. The written lease agreement must:
(1) Identify all other persons sharing in the crop; and
(2) Be submitted to us on or before the acreage reporting date.
(a) In accordance with section 8 of the Basic Provisions, the insured crop will be each tobacco type you elect to insure and for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That meets all rotation requirements on the Special Provisions of Insurance.
(b) You will be considered to have a share in the insured crop if you retain control of the acreage on which the tobacco is grown and you are at risk of loss.
In addition to the provisions of section 9 of the Basic Provisions, we will not insure any acreage that is:
(a) Planted in any manner other than as provided in the definition of “planted acreage” in section 1 of these Crop Provisions, unless otherwise provided by the Special Provisions of Insurance or by written agreement; or
(b) Damaged before the final planting date to the extent that the majority of producers in the area would normally not further care for the tobacco crop, unless such crop is replanted or we agree that replanting is not practical.
In lieu of the provisions of section 11 of the Basic Provisions, coverage ends at the earlier of:
(a) Total destruction of the tobacco on the unit;
(b) Removal of the tobacco from the unit where grown, except for curing, grading, and packing;
(c) Abandonment of the crop on the unit;
(d) Final adjustment of the loss on the unit; or
(e) The calendar date for the end of the insurance period, which is the date immediately following planting and designated by tobacco types and states (or as otherwise stated on the Special Provisions of Insurance) as follows:
(i) Flue cured – November 30 in North Carolina and Virginia;
(ii) Flue cured – October 31 in Alabama, Florida, Georgia, and South Carolina;
(iii) Burley – February 28 in all states;
(iv) Dark air cured – March 15 in Kentucky, Tennessee, and Virginia;
(v) Fire cured – April 15 in Kentucky, Tennessee, and Virginia;
(vi) Cigar Binder, Cigar Filler, and Cigar Wrapper – April 30 in Connecticut, Massachusetts, Pennsylvania, and Wisconsin; and
(vii) Maryland type – May 15 in Maryland and Pennsylvania.
In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply due to a cause of loss specified in sections 10(a) through (g) that also occurs during the insurance period.
(a) In accordance with section 14 of the Basic Provisions, you must maintain representative samples of each unharvested tobacco crop (type) for our inspection. The representative samples must be at least 5 feet wide (at least two rows), and extend the entire length of each field in the unit. The samples must not be harvested or destroyed until after our inspection.
(b) If you have filed a notice of damage, you must leave all tobacco stalks and stubble in the unit intact for our inspection. The stalks and stubble must not be destroyed until we give you written consent to do so or until 30 days after the end of the insurance period, whichever is earlier.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the number of insured acres by your applicable production guarantee (per acre);
(2) Multiplying the result of section 12(b)(1) by your price election;
(3) Multiplying the total production to count determined in section 12(c) by your price election;
(4) Subtracting the result of section 12(b)(3) from the result of section 12(b)(2); and
(5) Multiplying the result of section 12(b)(4) by your share.
For example:
You have 100 percent share in a unit to produce 3,000 pounds of Burley tobacco, a production guarantee of 1,950 pounds (APH yield of 3,000 pounds × .65 coverage level), you plant 1.0 acre, your price election is $1.50 per pound, and your production to count is 500 pounds. Your indemnity would be calculated as follows:
(1) 1.0 acre × 1,950 pounds production guarantee = 1,950 pounds;
(2) 1,950 pounds × $1.50 price election = $2,925.00 value of the production guarantee;
(3) 500 pounds production to count × $1.50 price election = $750.00 value of the production to count;
(4) $2,925.00 value of the production guarantee – $750.00 value of the production to count = $2,175.00; and
(5) $2,175.00 × 1.000 share = $2,175.00 indemnity.
(c) The total production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes;
(D) For which you fail to provide records of production, that are acceptable to us; or
(E) For any type of tobacco when the stalks and stubble have been destroyed without our consent under section 11(b);
(ii) Production lost due to uninsured causes.
(iii) Potential production on insured acreage you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count.); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from insurable acreage.
(d) Once we agree the current year’s tobacco has no average value due to an insured cause of loss, you must destroy it, and it will not be considered production to count. If you refuse to destroy such tobacco, we will include it as production to count and value it at the applicable price election.
(e) In lieu of section 15(b) of the Basic Provisions, if we have conducted an appraisal of your insured crop and we determine that the harvested production you report is inconsistent with the appraised production and you cannot prove that an insurable cause of loss occurred between the appraisal and the end of the insurance period that can account for the reduction in production, your claim will be settled based on the appraised production on insured acreage, even if you have harvested the acreage. If we settle your claim based on your appraised production, section 12(f) regarding quality adjustment is not applicable.
(f) Mature tobacco may be adjusted for quality deficiencies when production has been damaged by insurable causes.
(1) You must contact us before any tobacco is disposed of so we can inspect the tobacco to determine the extent of the damage.
(2) Our inspection will be used to determine whether the average value is reasonable. Based on amount of damage determined during the inspection, if the average value is:
(i) Reasonable, such average value will be used to determine the quality adjustment in section 12(f)(5);
(ii) Unreasonable, we may adjust the average value used to calculate the quality adjustment in section 12(f)(5).
(3) If you dispose of any production without giving us the opportunity to have the tobacco inspected, you will not receive a quality adjustment for such tobacco, regardless of the average value of the production.
(4) Production to count will only be reduced if the average value for damaged tobacco is less than 75 percent of your tobacco price election. You must provide us with records that are acceptable to us which clearly shows the number of pounds, price per pound, and the quality of such tobacco.
(5) Any reduction in the production to count will be determined by:
(i) Dividing the average value per pound as determined by us in accordance with section 12(f)(2) of these Crop Provisions by your applicable price election; and
(ii) Multiplying this result by the number of pounds of damaged production.
In lieu of late planting provisions in the Basic Provisions regarding acreage initially planted after the final planting date, insurance will be provided for acreage planted to the insured crop after the final planting date as follows:
(a) The production guarantee (per acre) for acreage planted during the late planting period will be reduced by:
(1) One percent per day for the 1st through the 10th day; and
(2) Two percent per day for the 11th through the 15th day;
(b) The premium amount for insurable acreage planted to the insured crop after the final planting date will be the same as that for timely planted acreage. If the amount of premium you are required to pay (gross premium less our subsidy) for acreage planted after the final planting date exceeds the liability on such acreage, coverage for those acres will not be provided (no premium will be due and no indemnity will be paid for such acreage).
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. Additional prevented planting coverage levels are not available for tobacco.
§ 457.137 Green pea crop insurance provisions.
The Green Pea Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
Base contract price. The price stipulated in the processor contract for the tenderometer reading, grade factor, or sieve size that is designated in the Special Provisions, if applicable, without regard to discounts or incentives that may apply.
Bypassed acreage. Land on which production is ready for harvest but the processor elects not to accept such production so it is not harvested.
Combining (vining). Separating pods from the vines and, in the case of shell peas, separating the peas from the pod for delivery to the processor.
Dry peas. Green peas that have matured to the dry form for use as food, feed, or seed.
Good farming practices. The cultural practices generally in use in the county for the crop to make normal progress toward maturity and produce at least the yield used to determine the production guarantee and are those required by the green pea processor contract with the processing company, and recognized by the National Institute of Food and Agriculture as compatible with agronomic and weather conditions in the county.
Green peas. Shell type and pod type peas that are grown under a processor contract to be canned or frozen and sold for human consumption.
Harvest. Combining (vining) of the peas.
Nurse crop (companion crop). A crop planted into the same acreage as another crop, that is intended to be harvested separately, and which is planted to improve growing conditions for the crop with which it is grown.
Peas. Green or dry peas.
Planted acreage. In addition to the definition contained in the Basic Provisions, peas must initially be placed in rows to be considered planted. Acreage planted in any other manner will not be insurable unless otherwise provided by the Special Provisions or by written agreement.
Pod type. Green peas genetically developed to be eaten without shelling (e.g., snap peas, snow peas, and Chinese peas).
Practical to replant. In lieu of the definition of “practical to replant” contained in section 1 of the Basic Provisions, practical to replant is defined as our determination, after loss or damage to the insured crop, based on factors including, but not limited to, moisture availability, condition of the field, time to crop maturity, and marketing window, that replanting the insured crop will allow the crop to attain maturity prior to the calendar date for the end of the insurance period. It will not be considered practical to replant unless the replanted acreage can produce at least 75 percent of the approved yield, and the processor agrees in writing that it will accept the production from the replanted acreage.
Price election. In lieu of the definition of “Price election” contained in section 1 of the Basic Provisions, price election is defined as the price per pound stated in the processor contract (contracted price) for the tenderometer reading, grade factor, or sieve size contained in the Special Provisions.
Processor. Any business enterprise regularly engaged in canning or freezing green peas for human consumption, that possesses all licenses and permits for processing green peas required by the state in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process contracted green peas within a reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a processor, containing at a minimum:
(a) The producer’s commitment to plant and grow green peas, and to deliver the green pea production to the processor;
(b) The processor’s commitment to purchase all the production stated in the processor contract; and
(c) A base contract price.
Multiple contracts with the same processor that specify amounts of production will be considered as a single processor contract unless the contracts are for different types of green peas.
Production guarantee (per acre). The number of pounds determined by multiplying the approved actual production history yield per acre by the coverage level percentage you elect. For shell type peas, the weight will be determined after shelling.
Shell type. Green peas genetically developed to be shelled prior to eating, canning or freezing.
(a) For any processor contract that stipulates the amount of production to be delivered:
(1) In lieu of the definition contained in the Basic Provisions, a basic unit will consist of all acreage planted to the insured crop in the county that will be used to fulfill contracts with each processor;
(i) There will be no more than one basic unit for all production contracted with each processor contract;
(ii) In accordance with section 12, all production from any basic unit in excess of the amount under contract will be included as production to count if such production is applied to any other basic unit for which the contracted amount has not been fulfilled; and
(2) Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm serial number and by irrigated and non-irrigated practices are not applicable. Optional units may only be established based on shell type and pod type green peas if the shell type acreage does not continue into the pod type acreage in the same rows or planting pattern.
(b) For any processor contract that stipulates the number of acres to be planted, in addition to or instead of, establishing optional units by section, section equivalent or FSA farm serial number, or irrigated and non-irrigated acreage, optional units may be established based on shell type and pod type green peas if the shell type acreage does not continue into the pod type acreage in the same rows or planting pattern.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one price election for all the green peas in the county insured under this policy unless the Special Provisions provide different price elections by type. The percentage of the maximum price election you choose for one type will be applicable to all other types insured under this policy.
(b) The appraised production from bypassed acreage that could have been accepted by the processor will be included when determining your approved yield.
(c) Acreage that is bypassed because it was damaged by an insurable cause of loss will be considered to have a zero yield when determining your approved yield.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
Cancellation and Termination
| State | Dates |
|---|---|
| Delaware and Maryland | Feb. 15. |
| All other states | Mar. 15. |
In addition to the provisions of section 6 of the Basic Provisions, you must provide a copy of all processor contracts to us on or before the acreage reporting date.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the shell type and pod type green peas in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are grown under, and in accordance with, the requirements of a processor contract executed on or before the acreage reporting date and are not excluded from the processor contract at any time during the crop year; and
(3) That are not (unless allowed by the Special Provisions or by written agreement):
(i) Interplanted with another crop;
(ii) Planted into an established grass or legume; or
(iii) Planted as a nurse crop.
(b) You will be considered to have a share in the insured crop if, under the processor contract, you retain control of the acreage on which the green peas are grown, you are at risk of loss, and the processor contract provides for delivery of green peas under specified conditions and at a stipulated base contract price.
(c) A commercial green pea producer who is also a processor may establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or officers of the processor must execute and adopt a resolution that contains the same terms as an acceptable processor contract. Such resolution will be considered a processor contract under this policy; and
(3) Our inspection reveals that the processing facilities comply with the definition of a processor contained in these Crop Provisions.
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final planting date, to the extent that the majority of producers in the area would normally not further care for the crop, must be replanted unless we agree that it is not practical to replant; and
(b) We will not insure any acreage that does not meet the rotation requirements, if applicable, contained in the Special Provisions.
In lieu of the provisions contained in section 11 of the Basic Provisions, regarding the end of the insurance period, insurance ceases at the earlier of:
(a) The date the green peas:
(1) Were destroyed;
(2) Should have been harvested but were not harvested;
(3) Were abandoned; or
(4) Were harvested;
(b) The date you harvest sufficient production to fulfill your processor contract if the processor contract stipulates a specific amount of production to be delivered;
(c) Final adjustment of a loss; or
(d) September 15 of the calendar year in which the insured green peas would normally be harvested; or
(e) September 30 of the calendar year in which the insured peas would normally be harvested if you provide notice to us that the insured crop will be harvested as dry peas (see section 11(d)).
In accordance with the provisions of section 12 of the Basic Provisions:
(a) Insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions, including:
(i) Excessive moisture that prevents harvesting equipment from entering the field or that prevents the timely operation of harvesting equipment; and
(ii) Abnormally hot or cold temperatures that cause an unexpected number of acres over a large producing area to be ready for harvest at the same time, affecting the timely harvest of a large number of such acres or the processing of such production is beyond the capacity of the processor, either of which causes the acreage to be bypassed.
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease but only on acreage not planted to peas the previous crop year. (In certain instances, contained in the Special Provisions or in a written agreement, acreage planted to peas the previous year may be covered. Damage due to insufficient or improper application of disease control measures is not covered);
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of loss contained in section 10(a)(1) through (7) that occurs during the insurance period.
(b) In addition to the causes of loss excluded by section 12 of the Basic Provisions, we will not insure any loss of production due to:
(1) Bypassed acreage because of:
(i) The breakdown or non-operation of equipment or facilities; or
(ii) The availability of a crop insurance payment. We may deny any indemnity immediately in such circumstance or, if an indemnity has been paid, require you to repay it to us with interest at any time acreage was bypassed due to the availability of a crop insurance payment or;
(2) Your failure to follow the requirements contained in the processor contract.
In addition to the notices required by section 14 of the Basic Provisions, you must give us notice:
(a) Not later than 48 hours after:
(1) Total destruction of the green peas on the unit; or
(2) Discontinuance of harvest on a unit on which unharvested production remains.
(b) Within 3 days after the date harvest should have started on any acreage that will not be harvested unless we have previously released the acreage. You must also provide acceptable documentation of the reason the acreage was bypassed. Failure to provide such documentation will result in our determination that the acreage was bypassed due to an uninsured cause of loss. If the crop will not be harvested and you wish to destroy the crop, you must leave representative samples of the unharvested crop for our inspection. The samples must be at least 10 feet wide and extend the entire length of each field in each unit. The samples must not be destroyed until the earlier of our inspection or 15 days after notice is given to us;
(c) At least 15 days prior to the beginning of harvest if you intend to claim an indemnity on any unit, or immediately if damage is discovered during the 15 day period or during harvest, so that we may inspect any damaged production. If you fail to notify us and such failure results in our inability to inspect the damaged production, we will consider all such production to be undamaged and include it as production to count. You are not required to delay harvest; and
(d) Prior to the time the green peas would normally be harvested if you intend to harvest the green peas as dry peas.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee, by type if applicable;
(2) Multiplying each result of section 12(b)(1) by the respective price election, by type if applicable;
(3) Totaling the results of section 12(b)(2) if there are more than one type;
(4) Multiplying the total production to count (see section 12(c)), for each type if applicable, by its respective price election;
(5) Totaling the results of section 12(b)(4) if there are more than one type;
(6) Subtracting the results of section 12(b)(4) from the results of section 12(b)(2) if there is only one type or subtracting the results of section 12(b)(5) from the result of section 12(b)(3) if there are more than one type; and
(7) Multiplying the result of section 12(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of shell type green peas in the unit, with a guarantee of 4,000 pounds per acre and a price election of $0.09 per pound. You are only able to harvest 200,000 pounds. Your indemnity would be calculated as follows:
(1) 100 acres × 4,000 pounds = 400,000 pounds guarantee;
(2) 400,000 pounds × $0.09 price election = $36,000.00 value of guarantee;
(4) 200,000 pounds × $0.09 price election = $18,000.00 value of production to count;
(6) $36,000.00 − $18,000.00 = $18,000.00 loss; and
(7) $18,000.00 × 100 percent = $18,000.00 indemnity payment.
You also have a 100 percent share in 100 acres of pod type green peas in the same unit, with a guarantee of 5,000 pounds per acre and a price election of $0.13 per pound. You are only able to harvest 450,000 pounds. Your total indemnity for both shell type and pod type green peas would be calculated as follows:
(1) 100 acres × 4,000 pounds = 400,000 pounds guarantee for the shell type, and 100 acres × 5,000 pounds = 500,000 pounds guarantee for the pod type;
(2) 400,000 pounds guarantee × $0.09 price election = $36,000.00 value of guarantee for the shell type, and 500,000 pounds guarantee × $0.13 price election = $65,000.00 value of guarantee for the pod type;
(3) $36,000.00 + $65,000.00 = $101,000.00 total value of guarantee;
(4) 200,000 pounds × $0.09 price election = $18,000.00 value of production to count for the shell type, and
450,000 pounds × $0.13 = $58,500.00 value of production to count for the pod type;
(5) $18,000.00 + $58,500.00 = $76,500.00 total value of production to count;
(6) $101,000.00 − $76,500.00 = $24,500.00 loss; and
(7) $24,500.00 loss × 100 percent = $24,500.00 indemnity payment.
(c) The total production to count, specified in pounds, from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes or;
(D) For which you fail to provide production records that are acceptable to us.
(ii) Production lost due to uninsured causes.
(iii) Production on acreage that is bypassed unless the acreage was bypassed due to an insured cause of loss which resulted in production which would not be acceptable under the terms of the processor contract.
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested.
(2) All harvested green pea production from the insurable acreage. The amount of such production will be determined by dividing the dollar amount paid, payable, or which should have been paid under the terms of the processor contract for the quality and quantity of the peas delivered to the processor by the base contract price per pound;
(3) All harvested green pea production from any of your other insurable units that have been used to fulfill your processor contract for this unit; and
(4) All dry pea production from the insurable acreage if you gave notice in accordance with section 11(d) for any acreage you intended to harvest as dry peas. The harvested or appraised dry pea production will be multiplied by 1.667 for shell types and 3.000 for pod types to determine the green pea production equivalent. No adjustment for quality deficiencies will be allowed for dry pea production.
A late planting period is not applicable to green peas unless allowed by the Special Provisions and you provide written approval from the processor by the acreage reporting date that it will accept the production from the late planted acres when it is expected to be ready for harvest.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.138 Grape crop insurance provisions.
The grape crop insurance provisions for the 2010 and succeeding crop years are as follows:
Graft. To unite a shoot or bud (scion) with a rootstock or an existing vine in accordance with recommended practices to form a living union.
Harvest. Removing the mature grapes from the vines either by hand or machine.
Interplanted. Acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Set out. Physically planting the grape plants in the vineyard.
Ton. Two thousand (2,000) pounds avoirdupois.
Type. A category of grapes (one or more varieties) identified as a type in the Special Provisions.
Variety. A kind of grape that is distinguished from any other by unique characteristics such as, but not limited to, size, color, skin thickness, acidity, flavors and aromas. In Arizona and California each variety is identified as a separate type in the Special Provisions except for type 095 (other varieties). Type 095 is used to designate varieties not listed as a separate type.
(a) In Arizona and California only:
(1) A basic unit as defined in section 1 of the Basic Provisions will be divided into additional basic units by each variety that you insure; and
(2) Provisions in the Basic Provisions that provide for optional units by section, section equivalent, or FSA farm serial number and by irrigated and non-irrigated practices are not applicable. Unless otherwise allowed by written agreement, optional units may only be established if each optional unit is located on non-contiguous land or grown and insured under an organic farming practice.
(b) In all states except Arizona and California, in addition to, or instead of, establishing optional units by section, section equivalent, or FSA farm serial number and by irrigated and non-irrigated acreage and for acreage grown and insured under an organic farming practice as provided in the unit division provisions contained in the Basic Provisions, a separate optional unit may be established if each optional unit:
(1) Is located on non-contiguous land; or
(2) Consists of a separate type when separate types are specified in the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) In Arizona and California, you may select only one coverage level and price election for each grape variety you elect to insure in the county.
(b) In all states except Arizona and California, you may select only one coverage level and price election for each grape type in the county as specified in the Special Provisions. The coverage level you choose for each grape type is not required to have the same percentage relationship. The price election you choose for each type is not required to have the same percentage relationship to the maximum price election offered by us for each type. For example, if you choose 75 percent coverage level and 100 percent of the maximum price election for one type, you may choose 65 percent coverage level and 75 percent of the maximum price election for another type. If you elect the Catastrophic Risk Protection (CAT) level of insurance for any grape type, the CAT level of coverage will be applicable to all insured grape acreage in the county.
(c) In all states except Arizona and California, if you acquire a share in any grape acreage after you submit your application, such acreage is insurable under the terms of the policy and you did not include the grape type on your application, we will assign the following:
(1) A coverage level equal to the lowest coverage level you selected for any other grape type: and
(2) A price election percentage equal to the type with the lowest coverage level you selected, if you elected additional coverage; or 55 percent of the maximum price election, if you elected CAT.
(d) In addition to the definition of “price election” contained in section 1 of the Basic Provisions, a price election based on the price contained in your grape contract is allowed if provided by the Special Provisions. In the event any contract requires the use of a cultural practice that will reduce the amount of production from any insured acreage, your approved yield will be adjusted in accordance with section 3(f) and (g) to reflect the reduced production potential.
(e) In Arizona and California only, if the Special Provisions do not provide a price election for a specific variety you wish to insure, you may apply for a written agreement to establish a price election. Your application for the written agreement must include:
(1) The number of tons sold for at least the two most recent crop years; and
(2) The price received for all production of the grape variety in the years for which production records are provided.
(f) You must report by the production reporting date designated in section 3 of the Basic Provisions, by type or variety, if applicable:
(1) Any damage, removal of bearing vines, change in practices or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing vines on insurable and uninsurable acreage;
(3) The age of the vines and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with another perennial crop, and any time the planting pattern of such acreage is changed:
(i) The age of the interplanted crop, and the grape type or variety, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your approved yield.
(g) We will reduce the yield used to establish your production guarantee, based on our estimate of the effect on yield potential of any of the items listed in section 3(f)(1) through (4). If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce your production guarantee at any time we become aware of the circumstance.
(h) Your request to increase the coverage level or price election percentage will not be accepted if a cause of loss that could or would reduce the yield of the insured crop is evident when your request is made.
In accordance with section 4 of the Basic Provisions, the contract change date is October 31 preceding the cancellation date for Arizona and California and August 31 preceding the cancellation date for all other states.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are January 31 in Arizona and California, and November 20 for all other states.
In addition to the requirements of section 6 of the Basic Provisions, you must report your acreage:
(a) In Arizona and California, by each grape variety you insure; or
(b) In all other states, by each grape type.
In accordance with section 8 of the Basic Provisions, the crop insured will be any insurable variety that you elect to insure in Arizona and California, or in all other states all insurable types, in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for wine, juice, raisins, or canning (if such grapes are put to another use (i.e. table grapes), the production to count will be in accordance with section 12(c)(2(ii));
(c) That are grown in a vineyard that, if inspected, is considered acceptable by us;
(d) That, after being set out or grafted, have reached the number of growing seasons designated by the Special Provisions; and
(e) That have produced an average of at least two tons of grapes per acre (or as otherwise provided in the Special Provisions) in at least one of the three crop years immediately preceding the insured crop year, unless we inspect and allow insurance on acreage that has not produced this amount.
In lieu of the provisions in section 9 of the Basic Provisions that prohibit insurance attaching to a crop planted with another crop, grapes interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) For the year of application, coverage begins on February 1 in Arizona and California, and November 21 in all other states. Notwithstanding the previous sentence, if your application is received by us after January 12 but prior to February 1 in Arizona or California, or after November 1 but prior to November 21 in all other states, insurance will attach on the 20th day after your properly completed application is received in our local office, unless we inspect the acreage during the 20-day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the vineyard.
(2) For each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(3) If in accordance with the terms of the policy, your grape policy is cancelled or terminated for any crop year after insurance attached for that crop year, but on or before the cancellation and termination dates, whichever is later, insurance will not be considered to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(4) The calendar date for the end of the insurance period for each crop year is as follows, unless otherwise specified in the Special Provisions:
(i) October 10 in Mississippi and Texas;
(ii) November 10 in Arizona, California, Idaho, Oregon and Washington; and
(iii) November 20 in all other states.
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) If you acquire an insurable share in any insurable acreage after coverage begins, but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period. Acreage acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage of grapes on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the vineyard;
(3) Insects, except as excluded in 10(b)(1), but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), we will not insure against damage or loss of production due to:
(1) Phylloxera, regardless of cause; or
(2) Inability to market the grapes for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
In addition to the requirements of section 14 of the Basic Provisions, the following will apply:
(a) You must notify us within 3 days of the date harvest should have started if the crop will not be harvested.
(b) If the crop has been damaged during the growing season and you previously gave notice in accordance with section 14 of the Basic Provisions (§ 457.8), you must also provide notice at least 15 days prior to the beginning of harvest if you intend to claim an indemnity as a result of the damage previously reported. You must not destroy the damaged crop that is marketed in normal commercial channels, until after we have given you written consent to do so. If you fail to meet the requirements of this section, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee;
(2) Multiplying each result in section 12(b)(1) by the respective price election you selected for each type or variety;
(3) Totaling the results in section 12(b)(2);
(4) Multiplying the total production to count of each type or variety, if applicable, (see section 12 (c) through (e)) by the respective price election you selected;
(5) Totaling the results in section 12(b)(4);
(6) Subtracting the result in section 12(b)(5) from the result in section 12(b)(3); and
(7) Multiplying the result in section 12(b)(6) by your share.
(c) The total production to count (in tons) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned or destroyed by you without our consent;
(B) That is damaged solely by uninsured causes; or
(C) For which you fail to provide production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies in accordance with subsection 12 (e)); and
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested production from the insurable acreage:
(i) Grape production that is harvested and dried for raisins will be converted to a fresh weight basis by multiplying the number of tons of raisin production by 4.5.
(ii) Grapes grown for wine, juice, raisins or canning and put to another use, will be counted as production to count on a tonnage basis. No quality adjustment other than that specifically provided for in your policy is available.
(d) If any grapes are harvested before normal maturity or for a special use (such as Champagne or Botrytis-affected grapes), the production of such grapes will be increased by the factor obtained by dividing the price per ton received for such grapes by the price per ton for fully matured grapes of the type for which the claim is being made.
(e) Mature marketable grape production may be adjusted for quality deficiencies as follows:
(1) Production will be eligible for quality adjustment if, due to insurable causes, it has a value of less than 75 percent of the average market price of undamaged grapes of the same or similar variety. The value per ton of the qualifying damaged production and the average market price of undamaged grapes will be determined on the earlier of the date the damaged production is sold or the date of final inspection for the unit. The average market price of undamaged production will be calculated by averaging the prices being paid by usual marketing outlets for the area during the week in which the damaged grapes were valued.
(2) Grape production that is eligible for quality adjustment, as specified in subsection 12(e)(1) will be reduced by:
(i) Dividing the value per ton of the damaged grapes by the value per ton for undamaged grapes (the value of undamaged grapes will be the lesser of the average market price or the maximum price election for such grapes); and
(ii) Multiplying this result (not to exceed 1.000) by the number of tons of the eligible damaged grapes.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.139 Fresh market tomato (dollar plan) crop insurance provisions.
The fresh market tomato (dollar plan) crop insurance provisions for the 2024 and succeeding crop years are as follows:
Acre. 43,560 square feet of planted acreage when row widths do not exceed six feet. If row widths exceed six feet, the land area on which at least 7,260 linear feet of rows are planted.
Allowable cost. The dollar amount per carton for harvesting, packing, and handling as stated in the actuarial documents.
Amount of insurance per acre. The dollar amount of insurance per acre obtained by multiplying the reference maximum dollar amount shown in the actuarial documents by the coverage level percentage you elect.
Carton. Twenty-five (25) pounds of the insured crop.
Crop year. In lieu of the definition contained in the Basic Provisions (§ 457.8), crop year is a period of time that begins on the first day of the earliest planting period for fall planted tomatoes and continues through the last day of the insurance period for spring planted tomatoes. The crop year is designated by the calendar year in which spring planted tomatoes are harvested.
Direct marketing. In addition to the definition contained in section 1 of the Basic Provisions, the sale of the insured crop directly to consumers without the intervention of an intermediary including a registered handler.
Excess rain. An amount of precipitation sufficient to directly damage the crop.
Freeze. The formation of ice in the cells of the plant or its fruit, caused by low air temperatures.
Fresh market tomatoes. Field grown mature green or ripe fresh market tomatoes that meet the Agricultural Marketing Service United States Standards for Grades of Fresh Tomatoes; and the applicable Federal Marketing Order and Florida Tomato Committee Regulations, or their successors.
Harvest. The picking of fresh market tomatoes from the plants, excluding tomatoes salvaged by penhookers.
Mature green tomato. A tomato that:
(1) Has a glossy waxy skin that cannot be torn by scraping;
(2) Has well-formed, jelly-like substance in the locules;
(3) Has seeds that are sufficiently hard so as to be pushed aside and not cut by a sharp knife in slicing; and
(4) Shows no red color.
Minimum value. The dollar amount per carton shown in the actuarial documents we will use to value appraised and unsold harvested production to count.
Penhookers. Individuals who purchase the right to salvage tomatoes remaining in the field after commercial harvests are completed.
Plant stand. The number of live plants per acre prior to the occurrence of an insured cause of loss.
Planting period. The period of time designated in the actuarial documents in which the tomatoes must be planted to be considered fall, winter or spring-planted tomatoes.
Potential production. The number of cartons of field grown mature green or ripe fresh market tomatoes that the tomato plants will or would have produced per acre assuming normal growing conditions and practices by the end of the insurance period.
Price received. The gross dollar amount per carton received by the producer before deductions of allowable costs.
Registered handler. A person or entity officially certified by the Florida Tomato Committee, or successor entity, to inspect and enforce all the handling regulations for fresh market tomatoes, and report the required packout data to the Florida Tomato Committee.
Ripe tomato. A tomato that has a definite break in color from green to tannish-yellow, pink or red.
Row width. The widest distance from the center of one row of plants to the center of an adjacent row of plants.
Tropical depression. A system identified by the U.S. Weather Service as a tropical depression, and for the period of time so designated, including tropical storms, gales, and hurricanes.
(a) A basic unit, as defined in section 1 of the Basic Provisions, will also be divided into additional basic units by planting period.
(b) Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
(a) In addition to the requirements of section 3 of the Basic Provisions you may select only one coverage level (and the corresponding amount of insurance designated in the actuarial documents for the applicable planting period and practice) for all the tomatoes in the county insured under this policy.
(b) The amount of insurance you choose for each planting period and practice must have the same percentage relationship to the maximum price offered by us for each planting period and practice. For example, if you choose 100 percent of the maximum amount of insurance for a specific planting period and practice, you must also choose 100 percent of the maximum amount of insurance for all other planting periods and practices.
(c) The production reporting requirements contained in section 3 of the Basic Provisions do not apply to fresh market dollar plan tomatoes.
(d) The amounts of insurance per acre are progressive by stages as follows:
| Stage | Percent of the amount of insurance per acre that you selected | Length of time if transplanted |
|---|---|---|
| 1 | 50 | From planting through the 29th day after planting. |
| 2 | 75 | From the 30th day after planting until the beginning of stage 3. |
| 3 | 90 | From the 60th day after planting until the beginning of the final stage. |
| Final | 100 | Begins the earlier of 75 days after planting, or the beginning of harvest. |
(e) Any acreage of fresh market tomatoes damaged in the first, second, or third stage to the extent that the majority of producers in the area would not normally further care for the crop, the indemnity payable for such acreage will be based on the stage the plants had achieved when the insured damage occurred, even if the producer continues to care for the damaged tomatoes.
In accordance with section 4 of the Basic Provisions, the contract change date is April 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are July 31.
In addition to the requirements of section 6 of the Basic Provisions, you must report on or before the acreage reporting date contained in the Special Provisions for each planting period:
(a) All the acreage of tomatoes in the county insured under this policy in which you have a share;
(b) The dates the acreage was planted within each planting period; and
(c) The row width.
In lieu of the premium amount determinations contained in section 7 of the Basic Provisions, the annual premium amount for each cultural practice (e.g., fall transplanted irrigated) is determined by multiplying the final stage amount of insurance per acre by the premium rate for the cultural practice as established in the actuarial documents, by the insured acreage, by your share at the time coverage begins, and by any applicable premium adjustment factors contained in the actuarial documents.
In accordance with section 8 of the Basic Provisions, the crop insured will be all the field grown mature green or ripe fresh market tomato types in the county as specified in the Special Provisions for which a premium rate is provided in the actuarial documents:
(a) In which you have a share;
(b) That are:
(1) Planted to be harvested and sold as fresh market tomatoes;
(2) Planted within the planting periods designated in the actuarial documents;
(3) Grown under an irrigated practice;
(4) Grown on acreage covered by plastic mulch except where the Special Provisions allows otherwise;
(5) Grown by a person who in at least one of the three previous crop years:
(i) Grew tomatoes for commercial sale; or
(ii) Participated in managing a fresh market tomato farming operation;
(c) That are not:
(1) Interplanted with another crop;
(2) Planted into an established grass or legume;
(3) Grown for direct marketing; or
(4) Direct seeded fresh market tomatoes, unless insured by written agreement.
(a) In lieu of of section 9 of the Basic Provisions, that prohibit insurance attaching if a crop has not been planted in at least one of the three previous crop years, we will insure newly cleared land and former pasture land planted to fresh market tomatoes.
(b) In addition to of section 9 of the Basic Provisions:
(1) You must replant any acreage of tomatoes damaged during the planting period in which initial planting took place whenever less than 50 percent of the plant stand remains and
(i) It is practical to replant;
(ii) If, at the time the crop was damaged, the final day of the planting period has not passed; and
(iii) The damage occurs within 30 days of transplanting.
(2) Whenever tomatoes initially are planted during the fall or winter planting periods and the conditions specified in sections 9(b)(1) (ii) and (iii) are not met, you may elect:
(i) To replant such acreage and collect any replant payment due as specified in section 12. The initial planting period coverage will continue for such replanted acreage.
(ii) Not to replant such acreage and receive an indemnity based on the stage of growth the plants had attained at the time of damage. However, such an election will result in the acreage being uninsurable in the subsequent planting period.
(3) We will not insure any acreage on which tomatoes (except for replanted tomatoes in accordance with sections 9(b)(1) and (2)), peppers, eggplants, strawberries or tobacco have been grown and the soil was not fumigated or otherwise properly treated before planting the insured tomatoes.
In lieu of section 11 of the Basic Provisions, coverage begins on each unit or part of a unit the later of the date we accept your application, or when the tomatoes are planted in each planting period. Coverage ends on each unit at the earliest of:
(a) Total destruction of the tomatoes on the unit;
(b) Abandonment of the tomatoes on the unit;
(c) The date harvest should have started on the unit on any acreage which will not be harvested;
(d) Final adjustment of a loss on the unit;
(e) Final harvest on the unit; or
(f) The calendar date for the end of the insurance period that is 125 days after the date of transplanting or replanting with transplants.
(a) In accordance with of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Excess rain;
(2) Fire;
(3) Freeze;
(4) Hail;
(5) Tornado;
(6) Tropical depression; or
(7) Failure of the irrigation water supply, if caused by an insured cause of loss that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against any damage or loss of production due to:
(1) Disease or insect infestation, unless no effective control measure exists for such disease or insect infestation; or
(2) Failure to harvest in a timely manner or failure to sell the tomatoes, unless such failure is due to actual physical damage caused by an insured cause of loss that occurs during the insurance period. For example, we will not pay an indemnity if you are unable to sell the insured crop due to quarantine, boycott, or refusal of any person to accept production.
(a) In accordance with section 13 of the Basic Provisions, a replanting payment is allowed if, due to an insured cause of loss, more than 50 percent of the plant stand will not produce tomatoes and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be the lesser of your actual cost of replanting or the result obtained by multiplying the per acre replanting payment amount contained in the Special Provisions by your insured share.
(c) In lieu of the provisions contained in section 13 of the Basic Provisions, that limit a replanting payment to one each crop year, only one replanting payment will be made for acreage planted during each planting period within the crop year.
In addition to the requirements contained in section 14 of the Basic Provisions, if you intend to claim an indemnity on any unit you must also give us notice not later than 72 hours after the earliest of:
(a) The time you discontinue harvest of any acreage on the unit;
(b) The date harvest normally would start if any acreage on the unit will not be harvested; or
(c) The calendar date for the end of the insurance period.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage in each stage by the amount of insurance per acre for the final stage;
(2) Multiplying each result in section 14(b)(1) by the percentage for the applicable stage (see section 3(d));
(3) Total the results of section 14(b)(2);
(4) Subtracting either of the following values from the result of section 14(b)(3):
(i) For other than catastrophic risk protection coverage, the total value of production to be counted (see section 14(c)); or
(ii) For catastrophic risk protection coverage, the result of multiplying the total value of production to count determined in accordance with section 14(c) by the percentage contained in the Special Provisions.
(5) Multiplying the result of section 14(b)(4) by your share.
| For Example: You have a 100 percent share in 10.0 acres of fresh market tomatoes. You select a 70% coverage level of the reference maximum dollar amount of $7,500 per acre. The average price received is $10.00 per carton of tomatoes. Allowable costs are $4.25 per carton. Minimum value is $5.00 per carton. Your total sold production is 5,000 cartons (5,000 ÷ 10.0 = 500 cartons per acre) and you have an additional 1,000 cartons of unsold harvested production (1,000 ÷ 10.0 = 100 cartons per acre). Your loss occurred in the final stage of production. Your total indemnity is calculated as follows: | ||
| $7,500 × 70% = dollar amount of insurance per acre | $5,250 | |
| 14(c)(3) | 500 cartons × $5.75 = value of sold production ($10 selling price minus $4.25 allowable cost) | 2,875 |
| 14(c)(4) | 100 cartons of unsold harvested production × $5 minimum value per carton | + 500 |
| Total value of production to count | 3,375 | |
| 14(b)(5) | Indemnity per acre = ($5,250 − $3,375) × 100% share | 1,875 |
| $1,875 × 10.0 acres = $18,750 total indemnity payment | 18,750 | |
(c) The total value of production to count from all insurable acreage on the unit will include:
(1) Not less than the amount of insurance per acre for the stage for any acreage:
(i) That is abandoned;
(ii) Put to another use without our consent;
(iii) That is damaged solely by uninsured causes; or
(iv) For which you fail to provide acceptable production records;
(2) The value of the following appraised production will not be less than the dollar amount obtained by multiplying the number of cartons of appraised tomatoes by the minimum value per carton shown in the Special Provisions for the planting period:
(i) Potential production on any fresh market tomato acreage that has not been harvested the required number of times as specified in the Special Provisions;
(ii) Unharvested mature green tomatoes (unharvested production that is damaged or defective due to insurable causes and is not marketable will not be counted as production to count);
(iii) Production lost due to uninsured causes; and
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) We may require you to continue to care for the crop so that a subsequent appraisal may be made or the crop harvested to determine actual production. (If we require you to continue to care for the crop and you do not do so, the original appraisal will be used); or
(B) You may elect to continue to care for the crop, in which case the amount of production to count for the acreage will be the harvested production, or our reappraisal if the crop is not harvested.
(3) The total value of all sold harvested production from the insurable acreage will be the dollar amount obtained by subtracting the allowable cost contained in the actuarial documents from the price received for each carton of fresh market tomatoes in the load (this result may not be less than the minimum value shown in the actuarial documents for any carton of tomatoes), and multiplying this result by the number of cartons of fresh market tomatoes harvested.
(4) The total value of all unsold harvested production will be the dollar amount obtained by multiplying the number of cartons of such tomatoes on the unit by the minimum value shown in the actuarial documentsfor the planting period. Harvested production that is damaged or defective due to an insured cause of loss and is not sold will not be counted as production to count.
(5) Any penhooker salvage value paid to you will be added to the total dollar value of production to count.
The late and prevented planting provisions of the Basic Provisions are not applicable.
(a) The provisions of this option are continuous and will be attached to and made a part of your insurance policy, if:
(1) You elect the Minimum Value Option on your application, or on a form approved by us, on or before the sales closing date for the initial crop year in which you wish to insure fresh market tomatoes (dollar plan) under this option, and pay the additional premium indicated in the actuarial documents for this optional coverage; and
(2) You have not elected coverage under the Catastrophic Risk Protection Endorsement.
(b) In lieu of the provisions contained in sections 14(c)(3) and 14(c)(4) of these Crop Provisions, the total value of harvested production will be determined as follows:
(1) For sold harvested production, the dollar amount obtained by subtracting the allowable cost contained in the actuarial documents from the price received for each carton of fresh market tomatoes in the load (this result may not be less than the minimum value option price contained in the actuarial documents for any carton of tomatoes sold), and multiplying this result by the number of cartons of fresh market tomatoes sold; and
(2) For unsold harvested production, the dollar amount obtained by multiplying the number of cartons of such fresh market tomatoes on the unit by the minimum value shown in the actuarial documents for the planting period. Harvested production that is damaged or defective due to an insured cause of loss and is not sold will not be counted as production to count.
(c) This option may be canceled by either you or us for any succeeding crop year by giving written notice on or before the cancellation date preceding the crop year for which the cancellation of this option is to be effective.
| $7,500 × 70% = dollar amount of insurance per acre | $5,250 | |
| 16(b)(1) | 500 cartons × $2 = value of sold production ($6 price received minus $4.25 allowable costs = $1.75. The $2.00 minimum value option price is greater than $1.75) | 1,000 |
| 16(b)(2) | 100 cartons of unsold harvested production × $5 minimum value per carton | 500 |
| Total value of production to count | 1,500 | |
| 16(b) | Indemnity per acre = $5,250 − $1,500 = $3,750 × 100% share | 3,750 |
| $3,750 × 10.0 acres = $37,500 total indemnity payment | 37,500 | |
§ 457.140 Dry pea crop insurance provisions.
The Dry Pea Crop Insurance Provisions for the 2022 and succeeding crop years are as follows:
FCIC policies:
Adequate stand. A population of live plants per acre that will produce at least the yield used to establish your production guarantee.
Base contract price. The price per pound stipulated in the processor/seed company contract without regard to discounts or incentives that may apply, and that will be paid to the producer for at least 50 percent of the total production under contract with the processor/seed company.
Combining. A mechanical process that separates dry peas from the pods and other vegetative matter and places dry peas into a temporary storage receptacle.
Conditioning. A process that improves the quality of production by screening or any other operation commonly used in the dry pea industry to remove dry peas that are deficient in quality.
Contract seed types. Peas (Pisum sativum L.) or other categories of dry peas identified in the Special Provisions grown under the terms of a processor/seed company contract for the purpose of producing seed to be used in planting a future year’s crop.
Dry peas. Peas (Pisum sativum L.), Austrian Peas (Pisum sativum spp arvense), Fava or Faba beans (Vicia faba L.), Lentils (Lens culinaris Medik.), Chickpeas (Cicer arietinum L.), and other types as listed in the Special Provisions or insured by written agreement.
Harvest. Combining of dry peas. Dry peas that are swathed prior to combining are not considered harvested.
Latest final planting date. (a) The final planting date for spring-planted acreage in all counties for which the Special Provisions designate a spring-planted type only;
(b) The final planting date for fall-planted acreage in all counties for which the Special Provisions designate a fall-planted type only; or
(c) The final planting date for spring-planted acreage in all counties for which the Special Provisions designate both spring-planted and fall-planted types.
Local market price. The cash price per pound for the U.S. No. 1 grade of dry peas as determined by us. This price will be considered the prevailing dollar amount buyers are willing to pay for dry peas containing the maximum limits of quality deficiencies allowable for the U.S. No. 1 grade. Moisture content and factors not associated with grading under the United States Standards for Whole Dry Peas, Beans (Chickpeas, Fava or Faba beans), and Lentils will not be considered, unless otherwise specified in the Special Provisions.
Nurse crop (companion crop). A crop planted into the same acreage as another crop to improve the growing conditions for the crop with which it is grown, and that is intended to be harvested separately.
Planted acreage. In addition to the definition contained in the Basic Provisions, dry peas must initially be planted in rows to be considered planted. Acreage planted in any other manner will not be insurable unless otherwise provided by the Special Provisions or by written agreement.
Practical to replant. In addition to the definition contained in the Basic Provisions, it will be considered practical to replant:
(a) Contract seed types only if the processor/seed company will accept the production under the terms of the processor/seed company contract.
(b) Fall-planted types 25 days or less after the final planting date for the corresponding spring-planted type of dry peas.
Prevented planting. As defined in the Basic Provisions, except that the references to “final planting date” contained in the definition in the Basic Provisions are replaced with the “latest final planting date.”
Price election. In addition to the definition contained in the Basic Provisions, the price election for contract seed types will be the percentage you elect (not to exceed 100 percent) of the base contract price and used for the purposes of determining premium and indemnity for contract seed types under this policy.
Processor/seed company. Any business enterprise regularly engaged in the processing of contract seed types, that possesses all licenses and permits for marketing contract seed types required by the state in which it operates, and that owns, or has contracted, sufficient drying, screening, and bagging or packaging equipment to accept and process the contract seed types within a reasonable amount of time after harvest.
Processor/seed company contract. A written agreement between the producer and the processor/seed company, executed by the acreage reporting date, containing at a minimum:
(a) The producer’s promise to plant and grow one or more specific varieties of contract seed types, and deliver the production from those varieties to the processor/seed company;
(b) The processor/seed company’s promise to purchase all the production stated in the contract; and
(c) A fixed price, or a method to determine such price based on published information compiled by a third party, that will be paid to the producer for at least 50 percent of the production stated in the contract.
Swathed. Severance of the stem and pods from the ground without removal of the seeds from the pods and placing them into windrows.
Type. A category of dry peas identified as a type in the Special Provisions or insured by written agreement.
Windrow. Dry peas where the plants are cut and placed in a row.
(a) In addition to enterprise units provided in section 34(a) of the Basic Provisions, you may elect separate enterprise units by type, as provided in this section, if allowed by the actuarial documents. If you elect enterprise units by type, you may not elect enterprise or optional units by irrigation practices.
(1) You may elect separate enterprise units by type unless otherwise specified in the Special Provisions. For example, if you have Spring Austrian Peas and Spring Desi Chickpea types, you may elect one enterprise unit for the Spring Austrian Peas type or one enterprise unit for the Spring Desi Chickpeas type, or separate enterprise units for both types. Any acreage which is not reported and insured as an enterprise unit will be insured as a basic unit or optional unit if requirements are met. For example, if you only have Spring Austrian Peas and Spring Desi Chickpea types, you may have an enterprise unit for the Spring Austrian Peas type acreage and basic or optional units for the Spring Desi Chickpeas type acreage.
(2) You must separately meet the requirements in section 34(a)(4) of the Basic Provisions for each enterprise unit.
(3) If you elected separate enterprise units for multiple types and we discover enterprise unit qualifications are not separately met for all types in which you elected enterprise unit and such discovery is made:
(i) On or before the acreage reporting date, you may elect to insure:
(A) All types in which you elected an enterprise unit for meeting the requirements in section 34(a)(4) as separate enterprise units, and basic or optional units for any acreage that is not reported and insured as enterprise unit, whichever you report on your acreage report and for which you qualify;
(B) One enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4); or
(C) Basic or optional units for all acreage of the crop in the county, whichever you report on your acreage report and for which you qualify; or
(ii) At any time after the acreage reporting date, your unit structure will be one enterprise unit for all acreage of crop in the county provided you meet the requirements in section 34(a)(4). Otherwise, we will assign the basic unit structure for all acreage of crop in the county.
(4) If you elected an enterprise unit for only one type and we discover you do not qualify for an enterprise unit for that type and such discovery is made:
(i) On or before the acreage reporting date, your unit division for all acreage of the crop in the county will be based on basic or optional units, whichever you report on your acreage report and for which you qualify; or
(ii) At any time after the acreage reporting date, we will assign the basic unit structure for all acreage of the crop in the county.
(b) In addition to, or instead of, establishing optional units as provided in section 34(c) in the Basic Provisions, separate optional units may be established for each dry pea type (designated in actuarial documents and including any type insured by written agreement).
(c) Enterprise and optional units by type may be further divided by acreage of contract seed types and dry pea types not grown under a processor/seed company contract even if they share a common variety provided each dry pea type is grown on separate acreage and the production is kept separate.
(a) In accordance with the requirements of section 3(b) of the Basic Provisions, you may select only one coverage level for each type. However, if you elect the Catastrophic Risk Protection (CAT) level of insurance for any dry pea type, the CAT level of coverage will be applicable to all insured dry pea acreage in the county.
(b) In addition to the requirements of section 3 of the Basic Provisions:
(1) If the actuarial documents do not designate separate price elections by type, you may select only one price election for all dry peas in the county insured under this policy.
(2) If the actuarial documents designate separate price elections by type, you may select one price election for each dry pea type even if the prices for each type are the same. The price elections you choose for each type are not required to have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you may choose 75 percent of the maximum price election for another type.
(c) In addition to the requirements of section 3 of the Basic Provisions, in counties with both a fall and spring sales closing date for the insured crop:
(1) If you do not have any insurable fall-planted dry pea acreage covered under the Winter Coverage Option, you may change your coverage level or percentage of price election until the spring sales closing date; or
(2) If you have any insurable fall-planted dry pea acreage covered under the Winter Coverage Option, you may not change your coverage level or percentage of price election after the fall sales closing date.
(d) If a dry pea type is added after the sales closing date, we will assign:
(1) A coverage level equal to the lowest coverage level you selected for any other dry pea types; and
(2) A price election percentage equal to:
(i) 100 percent of the price election if you elected additional coverage; and
(ii) 55 percent of the price election if you elected catastrophic level of coverage.
In accordance with section 4 of the Basic Provisions, the contract change date is June 30 preceding the cancellation date for counties with an October 31 cancellation date, or November 30 preceding the cancellation date for counties with a March 15 cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are as follows:
| State and county | Cancellation
date | Termination
date |
|---|---|---|
| All counties in California and Arizona Counties: La Paz, Maricopa, Mohave, Pima, Pinal, and Yuma | 10/31 | 10/31 |
| All other Arizona counties and all other states | 3/15 | 3/15 |
In addition to the provisions of section 6 of the Basic Provisions, you must submit a copy of the processor/seed company contract to us on or before the acreage reporting date if you are insuring contract seed types.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the dry pea types in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvesting once maturity is reached as:
(i) Dry peas; or
(ii) Contract seed types, if the processor/seed company contract is executed on or before the acreage reporting date;
(3) That are not planted to plow down, graze, harvest as hay, or otherwise not planted for harvest as a mature dry pea crop; and
(4) That are not (unless allowed by the Special Provisions or by written agreement):
(i) Interplanted with another crop;
(ii) Planted into an established grass or legume; or
(iii) Planted as a nurse crop.
(b) You will be considered to have a share in the insured crop if, under the processor/seed company contract, you retain control of the acreage on which the dry peas are grown, you are at risk of loss (i.e., if there is a reduction in quantity or quality of your dry pea production, you will receive less income under the contract), and the processor/seed company contract is in effect for the entire insurance period.
(c) In counties for which the actuarial documents provide premium rates for the Winter Coverage Option (see section 15), coverage is available for dry peas between the time coverage begins and the spring final planting date. Coverage under the option is effective only if you qualify under the terms of the option and you elect the option by its sales closing date.
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage that does not meet the rotation requirements, if applicable, contained in the Special Provisions; or
(b) Any acreage of the insured crop damaged before the final planting date, to the extent that producers in the surrounding area would normally not further care for the crop, must be replanted unless we agree that it is not practical to replant.
(c) When the Special Provisions designate both fall and spring-planted types, and the Winter Coverage Option is not in force for the acreage:
(1) Any fall-planted dry pea acreage that is damaged before the spring final planting date, to the extent that producers in the area would normally not further care for the crop, must be replanted to a fall-planted type of dry peas to obtain insurance based on the fall-planted type unless we agree that replanting is not practical. If it is not practical to replant to a fall-planted type of dry peas but it is practical to replant to a spring-planted type, you must replant to a spring-planted type to obtain insurance coverage based on the fall-planted type.
(2) Any fall-planted dry pea acreage that is replanted to a spring-planted type when it was practical to replant the fall-planted type will be insured as the spring-planted type and the production guarantee, premium and price election applicable to the spring-planted type will be used. In this case, the acreage will be considered initially planted to the spring-planted type.
(d) When the Special Provisions designate both fall-planted and spring-planted types, and the Winter Coverage Option is in force for the acreage, insurance will be in accordance with the Winter Coverage Option (see section 15).
(e) Whenever the Special Provisions designate only a spring-planted type, any acreage of a fall-planted dry pea crop is not insured unless you request such coverage on or before the spring sales closing date, and we inspect and determine that the acreage has an adequate stand in the spring to produce the yield used to determine your production guarantee.
(1) The fall-planted dry pea crop will be insured as a spring-planted type for the purpose of the production guarantee, premium and price election.
(2) Insurance will attach to such acreage on the date we determine an adequate stand exists or on the spring final planting date if we do not determine adequacy of the stand prior to the spring final planting date.
(3) Any acreage of such fall-planted dry peas that is damaged after it is accepted for insurance but before the spring final planting date, to the extent that producers in the area would normally not further care for the crop, must be replanted to a spring-planted type of dry pea unless we agree it is not practical to replant. No replanting payment will be made.
(4) If fall-planted acreage is not to be insured it must be recorded on the acreage report as uninsured fall-planted acreage.
In accordance with the provisions of section 11 of the Basic Provisions, and subject to the provisions provided by the Winter Coverage Option (see section 15) if you elect such option, the insurance period is as follows:
(a) If the Special Provisions designate both fall-planted and spring-planted types, and the Winter Coverage Option is not in force for the acreage, you must report fall-planted acreage to your crop insurance agent on or before the spring sales closing date. Fall-planted types are only insurable if there is an adequate stand in the spring. Insurance will attach to such acreage on the date we determine an adequate stand exists or on the spring final planting date if we do not make that determination prior to the spring final planting date, unless otherwise specified in the Special Provisions. Fall-planted acreage must be reported and insured if it meets the requirements of section 8.
(b) The calendar date for the end of the insurance period for all insurable types of dry peas in the county is September 30 of the crop year in which the crop is normally harvested unless otherwise specified in the Special Provisions.
In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if due to a cause of loss contained in section 10(a) through (g) that occurs during the insurance period.
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that limit the amount of a replant payment to the actual cost of replanting, the amount of any replanting payment will be determined in accordance with these Crop Provisions;
(2) You must comply with all requirements regarding replanting payments contained in section 13 of the Basic Provisions (except as allowed in section 11(a)(1)) and in the Winter Coverage Option (see section 15), if applicable;
(3) The insured crop must be damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage;
(4) The acreage must have been initially planted to a spring type of the insured crop in those counties with only a spring type designated in the Special Provisions;
(5) When the Winter Coverage Option is in effect for the acreage, damage must occur after the fall final planting date in those counties where both fall and spring types are designated in the Special Provisions;
(6) Replanting payments are not available for damaged fall-planted types if you have not elected to cover such acreage under the Winter Coverage Option; and
(7) The replanted crop must be seeded at a rate sufficient to achieve a total (undamaged and new seeding) plant population that will produce at least the yield used to determine your production guarantee.
(b) The maximum amount of the replanting payment per acre will be the lesser of 20.0 percent of the production guarantee or 200 pounds, multiplied by your price election, multiplied by your share, unless otherwise stated in the Special Provisions.
(c) When the crop is replanted using a practice that is uninsurable for an original planting, the liability on the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
(d) Replanting payments will be calculated using the price election and production guarantee for the dry pea type that is replanted and insured. For example, if damaged smooth green and yellow pea acreage is replanted to lentils, the price election and production guarantee applicable to lentils will be used to calculate any replanting payment that may be due. A revised acreage report will be required to reflect the replanted type. Notwithstanding the previous two sentences, the following will have a replanting payment based on the guarantee and price election for the crop type initially planted:
(1) Any damaged fall-planted type of dry peas replanted to a spring-planted type that retains insurance based on the production guarantee and price election for the fall-planted type; and
(2) Any acreage replanted at a reduced seeding rate into a partially damaged stand of the insured crop.
Representative samples are required in accordance with section 14 of the Basic Provisions.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional units, we will combine all optional units for which acceptable records of production were not provided; or
(2) Basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage to your dry pea crop covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage of each dry pea type, if applicable, excluding contract seed types, by its respective production guarantee;
(2) Multiplying each result of section 13(b)(1) by the respective price election;
(3) Totaling the results of section 13(b)(2) if there is more than one type;
(4) Multiplying the insured acreage of each contract seed type variety by its respective production guarantee;
(5) Multiplying each result of section 13(b)(4) by the applicable base contract price;
(6) Multiplying each result of section 13(b)(5) by your selected price election percentage;
(7) Totaling the results of section 13(b)(6) if there is more than one type;
(8) Totaling the results of section 13(b)(3) and section 13(b)(7);
(9) Multiplying the total production to be counted of each dry pea type, excluding contract seed types, if applicable (see section 13(d)), by the respective price elections;
(10) Totaling the value of all contract seed type production (see section 13(c));
(11) Totaling the results of section 13(b)(9) and section 13(b)(10);
(12) Subtracting the result of section 13(b)(11) from the result in section 13(b)(8); and
(13) Multiplying the result of section 13(b)(12) by your share.
Example 1:
In this example, you have not elected optional units by type. You have a 100 percent share in 100 acres of spring-planted smooth green dry edible peas in the unit, with a production guarantee of 4,000 pounds per acre and a price election of $0.09 per pound. Your selected price election percentage is 100 percent. You are only able to harvest 200,000 pounds. Your indemnity would be calculated as follows:
(1) 100 acres × 4,000 pounds = 400,000-pound guarantee;
(2) 400,000-pound guarantee × $0.09 price election = $36,000 value of guarantee;
(9) 200,000-pound production to count × $0.09 price election = $18,000 value of production to count;
(12) $36,000 value of guarantee − $18,000 value of production to count = $18,000 loss; and
(13) $18,000 × 100 percent share = $18,000 indemnity payment.
Example 2:
Assume the same facts in example 1. Also assume you have a 100 percent share in 100 acres of contract seed types in the same unit, with a production guarantee of 5,000 pounds per acre and a base contract price of $0.40 per pound. Your selected price election percentage is 100 percent. You are only able to harvest 450,000 pounds. Your total indemnity for both spring-planted smooth green dry edible peas and contract seed types would be calculated as follows:
(1) 100 acres × 4,000 pounds = 400,000-pound guarantee for the spring-planted smooth green dry edible pea type;
(2) 400,000-pound guarantee × $0.09 price election = $36,000 value of guarantee for the spring-planted smooth green dry edible pea type;
(3) $36,000 (only one spring-planted smooth green dry edible pea type; no other types in this example to total);
(4) 100 acres × 5,000 pounds = 500,000-pound guarantee for the contract seed type;
(5) 500,000-pound guarantee × $0.40 base contract price = $200,000 gross value of guarantee for the contract seed type;
(6) $200,000 × 1.00 price election percentage = $200,000 value of guarantee for the contract seed type;
(7) $200,000 (only one contract seed type; no other types in this example to total);
(8) $36,000 + $200,000 = $236,000 total value of guarantee;
(9) 200,000-pound production to count × $0.09 price election = $18,000 value of production to count for the spring-planted smooth green dry edible pea type;
(10) 450,000-pound production to count × $0.40 = $180,000 value of production to count for the contract seed type;
(11) $18,000 + $180,000 = $198,000 total value of production to count;
(12) $236,000 − $198,000 = $38,000 loss; and
(13) $38,000 loss × 100 percent share = $38,000 indemnity payment.
(c) The value of contract seed type production to count for each variety in the unit will be determined as follows:
(1) For mature production meeting the objective, measurable minimum quality requirements (e.g., size, germination percentage) contained in the processor/seed company contract, and for mature production that does not meet such requirements due to uninsured causes:
(i) Multiplying the local market price or base contract price per pound, whichever is greater, by the price election percentage you selected; and
(ii) Multiplying the result by the number of pounds of such production.
(2) For mature production not meeting the objective, measurable minimum quality requirements (e.g., size, germination percentage) contained in the processor/seed company contract, due to insurable causes, and immature production that is appraised:
(i) Multiplying the highest local market price available for such dry peas by the price election percentage you selected; and
(ii) Multiplying the result by the number of pounds of such production.
(d) The total dry pea production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production of dry peas may be adjusted for quality deficiencies and excess moisture in accordance with section 13(c) or (e), or as specified in the Special Provisions if applicable); and
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(e) Mature dry pea production to count may be adjusted for excess moisture and quality deficiencies. Any adjustment for moisture will be made prior to any adjustment for quality. Adjustment for excess moisture and quality deficiencies will not be applicable to contract seed types.
(1) Production will be reduced by 0.12 percent for each 0.1 percentage point of moisture in excess of 14 percent. We may obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment in accordance with the following, unless otherwise specified in the Special Provisions:
(i) Deficiencies in quality, in accordance with the United States Standards for Whole Dry Peas, Beans (Chickpeas, Fava or Faba beans), and Lentils, result in production grading U.S. No. 2 or worse because of defects, color, skinned production (lentils only), odor, material weathering, or distinctly low quality; or
(ii) Substances or conditions are present that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a cause of loss against which insurance is provided under these Crop Provisions and which occurs within the insurance period;
(ii) The deficiencies, substances, or conditions result in a net price for the damaged production that is less than the local market price;
(iii) All determinations of these deficiencies, substances, or conditions are made using samples of the production obtained by us or by a disinterested third party approved by us;
(iv) With regard to deficiencies in quality (except test weight, which may be determined by our loss adjuster), the samples are analyzed by:
(A) A grader licensed under the United States Agricultural Marketing Act or the United States Warehouse Act;
(B) A grader licensed under State law and employed by a warehouse operator who has a storage agreement with the Commodity Credit Corporation; or
(C) A grader not licensed under State law, but who is employed by a warehouse operator who has a commodity storage agreement with the Commodity Credit Corporation and is in compliance with State law regarding warehouses; and
(v) With regard to substances or conditions injurious to human or animal health, the samples are analyzed by a laboratory approved by us.
(4) Dry Pea production that is eligible for quality adjustment, as specified in sections 13(e)(2) and (3), will be reduced as follows:
(i) The highest local market price for the qualifying damaged production will be determined on the earlier of the date such damaged production is sold or the date of final inspection for the unit. The highest local market price for the qualifying damaged production will be determined in the local area to the extent feasible. We may obtain prices from any buyer of our choice. If we obtain prices from one or more buyers located outside your local market area, we will reduce such prices by the additional costs required to deliver the dry peas to those buyers. Discounts used to establish the net value of the damaged production will be limited to those that are usual, customary, and reasonable.
The value will not be reduced for:
(A) Moisture content;
(B) Damage due to uninsured causes; or
(C) Drying, handling, processing, or any other costs associated with normal harvesting, handling, and marketing of the dry peas; except, if the value of the damaged production can be increased by conditioning, we may reduce the value of the production after it has been conditioned by the cost of conditioning but not lower than the value of the production before conditioning;
(ii) The value per pound of the damaged or conditioned production will be divided by the local market price to determine the quality adjustment factor; and
(iii) The number of pounds remaining after any reduction due to excess moisture (the moisture-adjusted gross pounds, if appropriate) of the damaged or conditioned production will then be multiplied by the quality adjustment factor to determine the net production to count to be included in section 13(d);
(f) Any production harvested from plants growing in the insured crop may be counted as production of the insured crop on a weight basis.
(a) In counties for which the Special Provisions designate both fall-planted and spring-planted types, your prevented planting production guarantee will be based on your approved yield for spring-planted acreage of the insured crop.
(b) Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
(a) In the event of a conflict between this section and sections 1 through 14 of these Crop Provisions, this section will control.
(b) You must have purchased additional coverage under the Dry Pea Crop Provisions in order to select this option.
(c) In return for payment of the additional premium designated in the actuarial documents, this option is available in counties for which the actuarial documents provide premium rates for the Winter Coverage Option.
(d) This option is available only in counties for which the Special Provisions designate both fall-planted and spring-planted types.
(e) You must select this option on your application for insurance, or on a form approved by us, on or before the sales closing date for the initial year in which you wish to insure dry peas under this option.
(1) Failure to do so means you have rejected this coverage for the dry pea crop planted in the fall and this option is void.
(2) This option will continue in effect until canceled or coverage under the Dry Pea Crop Provisions is canceled or terminated.
(3) This option may be canceled by you or us for any succeeding crop year by giving written notice to the other party on or before the cancellation date contained in section 15(g) preceding the crop year for which the cancellation of this option is to be effective.
(4) You may change your coverage level or percentage of price election for dry pea types until the spring sales closing date if you have selected this option, but do not have any insured fall-planted acreage or your fall-planted acreage is not eligible for this option.
(f) Coverage under this option begins on the later of the date we accept your application for coverage or on the fall final planting date designated in the Special Provisions. Coverage ends on the spring final planting date designated in the Special Provisions.
(g) If you elect this option for dry peas initially planted in the fall, the following dates will be applicable to all your fall-planted and spring-planted dry peas in the county:
(1) Contract change date is June 30 preceding the cancellation date;
(2) Cancellation date is September 30; and
(3) Termination date is November 30. For a policy with amounts due, when the sales closing date is prior to the previous crop year termination date, such policies will terminate for the current crop year even if insurance attached prior to the termination date. Such termination will be considered effective as of the sales closing date and no insurance will be considered to have attached for the crop year and no indemnity, prevented planting or replant payment will be owed.
(h) All notices of damage must be provided to us not later than 15 days after the spring final planting date designated in the Special Provisions.
(i) All insurable acreage of each fall-planted dry pea type covered under this option must be insured.
(j) The amount of any indemnity paid under the terms of this option will be subject to any reduction specified in the Basic Provisions for multiple crop benefits in the same crop year.
(k) Whenever any acreage of dry peas planted in the fall is damaged during the insurance period and at least 20 acres or 20 percent of the insured planted acreage in the unit, whichever is less, does not have an adequate stand to produce at least 90 percent of the production guarantee for the acreage, you may, at your option, take one of the following actions:
(1) Continue to care for the damaged dry peas. By doing so, coverage will continue under the terms of the Basic Provisions, these Crop Provisions and this option;
(2) Replant the acreage to an appropriate type of insured dry peas, if it is practical, and receive a replanting payment in accordance with the terms of section 11. By doing so, coverage will continue under the terms of the Basic Provisions, these Crop Provisions and this option, and the production guarantee for the dry pea type planted in the fall will remain in effect; or
(3) Destroy the remaining crop on such acreage:
(i) By destroying the remaining crop, you agree to accept an appraised amount of production determined in accordance with section 13(d)(1) of these Crop Provisions to count against the unit production guarantee. This amount will be considered production to count in determining any final indemnity on the unit and will be used to settle your claim as described in section 13.
(ii) You may use such acreage for any purpose, including planting and separately insuring any other crop if such insurance is available.
(iii) If you elect to plant and elect to insure spring-planted dry pea acreage of the same dry pea type (you must elect whether or not you want insurance on the spring-planted acreage of the same dry pea type at the time we release the fall-planted acreage), you must pay additional premium for insurance. Such acreage will be insured in accordance with the policy provisions that are applicable to acreage that is initially planted in the spring to the same dry pea type, and you must:
(A) Plant the spring-planted acreage in a manner which results in a clear and discernable break in the planting pattern at the boundary between it and any remaining acreage of the fall-planted dry pea acreage; and
(B) Store or market the production in a manner which permits us to verify the amount of spring-planted production separately from any fall-planted production. In the event you are unable to provide records of production that are acceptable to us, the spring-planted acreage will be considered to be a part of the original fall-planted unit.
§ 457.141 Rice crop insurance provisions.
The Rice Crop Insurance Provisions for the 2020 and succeeding crop years are as follows:
Flood irrigation. An irrigated practice commonly used for rice production whereby the planted acreage is intentionally covered with water that is maintained at a uniform and shallow depth throughout the growing season.
Harvest. Combining or threshing the rice for grain. A crop that is swathed prior to combining is not considered harvested.
Local market price. The cash price per pound for the U.S. No. 3 grade of rough rice offered by buyers in the area in which you normally market the rice. Factors not associated with grading under the United States Standards for Rice including, but not limited to, protein and oil content or milling quality will not be considered.
Planted acreage. In addition to the definition in section 1 of the Basic Provisions, land on which there is uniform placement of an adequate amount of rice seed into a prepared seedbed by one of the following methods (Acreage seeded in any other manner will not be insurable unless otherwise provided by the Special Provisions or by written agreement):
(a) Drill seeding – Using a grain drill to incorporate the seed to a proper soil depth;
(b) Broadcast seeding – Distributing seed evenly onto the surface of an un-flooded seedbed followed by either timely mechanical incorporation of the seed to a proper soil depth in the seedbed or flushing the seedbed with water; or
(c) Broadcast seeding into a controlled flood – Distributing the rice seed onto a prepared seedbed that has been intentionally covered to a proper depth by water. The water must be free of movement and be completely contained on the acreage by properly constructed levees and gates.
Saline water. Water that contains a concentration of salt sufficient to cause damage to the insured crop.
Second crop rice. The regrowth of a stand of rice following harvest of the initially insured rice crop that can be harvested in the same crop year.
Swathed. Severance of the stem and grain head from the ground without removal of the rice kernels from the plant and placing in a windrow.
Total milling yield. Rice production consisting of heads, second heads, screenings, and brewer’s rice as defined by the official United States Standards for Rice.
Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
In addition to the requirements of section 3 of the Basic Provisions, you must elect to insure your rice with either revenue protection or yield protection by the sales closing date.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State and county | Cancellation and termination date |
|---|---|
| Jackson, Victoria, Goliad, Bee, Live Oak, McMullen, La Salle, and Dimmit Counties, Texas; and all Texas Counties south thereof; | January 31. |
| Florida | February 15. |
| Illinois and Missouri | March 15. |
| All other states | February 28. |
In accordance with section 8 of the Basic Provisions, the crop insured will be all the rice in the county for which a premium rate is provided by the actuarial documents or by written agreement:
(a) In which you have a share;
(b) That is planted for harvest as grain;
(c) That is flood irrigated unless otherwise specified in the Special Provisions; and
(d) That is not wild rice.
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage planted to rice:
(1) The preceding crop year unless allowed by the Special Provisions; or
(2) That does not meet the rotation requirements shown in the Special Provisions; and
(b) Any acreage of the insured crop damaged before the final planting date, to the extent that producers in the area would normally not further care for the crop, must be replanted unless we agree that it is not practical to replant.
In accordance with the provisions of section 11 of the Basic Provisions, the calendar date for the end of the insurance period is October 31 immediately following planting.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions (except drought);
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption;
(8) Failure of the irrigation water supply if caused by an insured cause of loss specified in sections 9(a)(1) through (7), drought, or the intrusion of saline water; or
(9) For revenue protection, a change in the harvest price from the projected price, unless FCIC can prove the price change was the direct result of an uninsured cause of loss specified in section 12(a) of the Basic Provisions.
(b) In addition to the causes of loss not insured against in section 12 of the Basic Provisions, we will not insure against any loss of production due to the application of saline water, except as specified in section 9(a)(8) of these crop provisions.
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that limit the amount of a replant payment to the actual cost of replanting, the amount of any replanting payment will be determined in accordance with these Crop Provisions;
(2) Except as specified in section 10(a)(1), you must comply with all requirements regarding replanting payments contained in section 13 of the Basic Provisions;
(3) The insured crop must be damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage; and
(4) The replanted crop must be seeded at a rate that is normal for initially planted rice (if new seed is planted at a reduced seeding rate into a partially damaged stand of rice, the acreage will not be eligible for a replanting payment).
(b) Unless otherwise specified in the Special Provisions, the amount of the replanting payment per acre will be the lesser of 20 percent of the production guarantee or 400 pounds, multiplied by your projected price, multiplied by your share.
(c) When the crop is replanted using a practice that is uninsurable for an original planting, the liability on the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
Representative samples are required in accordance with section 14 of the Basic Provisions.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the number of insured acres by your respective:
(i) Yield protection guarantee (per acre) if you elected yield protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue protection;
(2) Totaling the results of section 12(b)(1)(i) or 12(b)(1)(ii), whichever is applicable;
(3) Multiplying the production to count by your:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 12(b)(3)(i) or 12(b)(3)(ii), whichever is applicable;
(5) Subtracting the result of section 12(b)(4) from the result of section 12(b)(2); and
(6) Multiplying the result of section 12(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of rice in the unit with a production guarantee (per acre) of 3,750 pounds, your projected price is $.0750, your harvest price is $.0700, and your production to count is 150,000 pounds.
If you elected yield protection:
(1) 50 acres × (3,750 pound production guarantee × $.0750 projected price) = $14,062.50 value of the production guarantee
(3) 150,000 pound production to count × $.0750 projected price = $11,250.00 value of the production to count
(5) $14,062.50 − $11,250.00 = $2,812.50
(6) $2,812.50 × 1.000 share = $2,813.00 indemnity; or
If you elected revenue protection:
(1) 50 acres × (3,750 pound production guarantee × $.0750 projected price) = $14,062.50 revenue protection guarantee
(3) 150,000 pound production to count × $.0700 harvest price = $10,500.00 value of the production to count
(5) $14,062.50 − $10,500.00 = $3,562.50
(6) $3,562.50 × 1.000 share = $3,563.00 indemnity.
(c) The total production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee and for revenue protection, not less than the amount of production that when multiplied by the harvest price equals the revenue protection guarantee (per acre) for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with section 12(d));
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage, including any production from a second rice crop harvested in the same crop year.
(d) Mature rough rice may be adjusted for excess moisture and quality deficiencies. If moisture adjustment is applicable, it will be made prior to any adjustment for quality.
(1) Production will be reduced by 0.12 percent for each 0.1 percentage point of moisture in excess of 12 percent. We may obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality, in accordance with the Official United States Standards for Rice, result in rice not meeting the grade requirements for U.S. No. 3 (grades U.S. No. 4 or worse) because of red rice, chalky kernels or damaged kernels;
(ii) The rice has a total milling yield of less than 68 pounds per hundredweight;
(iii) The whole kernel weight is less than 55 pounds per hundredweight of milled rice for medium and short grain varieties;
(iv) The whole kernel weight is less than 48 pounds per hundredweight of milled rice for long grain varieties; or
(v) Substances or conditions are present that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions specified in section 12(d)(2) resulted from a cause of loss against which insurance is provided under these crop provisions and which occurs within the insurance period;
(ii) The deficiencies, substances, or conditions specified in section 12(d)(2) result in a net price for the damaged production that is less than the local market price;
(iii) All determinations of these deficiencies, substances, or conditions specified in section 12(d)(2) are made using samples of the production obtained by us or by a disinterested third party approved by us;
(iv) With regard to deficiencies in quality (except test weight, which may be determined by our loss adjuster), the samples are analyzed by:
(A) A grader licensed under the United States Agricultural Marketing Act or the United States Warehouse Act;
(B) A grader licensed under State law and employed by a warehouse operator who has a storage agreement with the Commodity Credit Corporation; or
(C) A grader not licensed under State law, but who is employed by a warehouse operator who has a commodity storage agreement with the Commodity Credit Corporation and is in compliance with State law regarding warehouses; and
(v) With regard to substances or conditions injurious to human or animal health, the samples are analyzed by a laboratory approved by us.
(4) Rice production that is eligible for quality adjustment, as specified in sections 12(d) (2) and (3), will be reduced as follows:
(i) In accordance with quality adjustment factors contained in the Special Provisions; or
(ii) If quality adjustment factors are not contained in the Special Provisions, as follows:
(A) The market price of the qualifying damaged production and the local market price will be determined on the earlier of the date such quality adjusted production is sold or the date of final inspection for the unit. The price for the qualifying damaged production will be the market price for the local area to the extent feasible. Discounts used to establish the net price of the damaged production will be limited to those that are usual, customary, and reasonable. The price will not be reduced for:
(1) Moisture content;
(2) Damage due to uninsured causes; or
(3) Drying, handling, processing, or any other costs associated with normal harvesting, handling, and marketing of the rice; except, if the price of the damaged production can be increased by conditioning, we may reduce the price of the production after it has been conditioned by the cost of conditioning but not lower than the value of the production before conditioning,
(We may obtain prices from any buyer of our choice. If we obtain prices from one or more buyers located outside your local market area, we will reduce such prices by the additional costs required to deliver the rice to those buyers.);
(B) The value of the damaged or conditioned production will be divided by the local market price to determine the quality adjustment factor; and
(C) The number of pounds remaining after any reduction due to excessive moisture (the moisture-adjusted gross pounds (if appropriate)) of the damaged or conditioned production will then be multiplied by the quality adjustment factor to determine the net production to count.
(e) Any production harvested from plants growing in the insured crop may be counted as production of the insured crop on a weight basis.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.142 Northern potato crop insurance provisions.
The Northern Potato Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
These provisions will be applicable in: Alaska; Humboldt, Modoc, and Siskiyou Counties, California; Colorado; Connecticut; Idaho; Indiana; Iowa; Kansas; Maine; Massachusetts; Michigan; Minnesota; Montana; Nebraska; Nevada; San Juan County, New Mexico; New York; North Dakota; Ohio; Oregon; Pennsylvania; Rhode Island; South Dakota; Utah; Washington; Wisconsin; and Wyoming; and any other states or counties if allowed by the Special Provisions.
Buyer. A business entity in the business of buying or processing potatoes, that possesses all the licenses and permits required by the state in which it operates, and has the facilities to accept the potatoes purchased.
Certified seed. Potatoes that were entered into the potato certified seed program and that meet all requirements for production to be used to produce a seed crop for the next crop year or a potato crop for harvest for commercial uses in the next crop year.
Discard. Disposal of production by you, or a person acting for you, without receiving any value for it.
Disposed. Any disposition of the crop including but not limited to sale or discard.
Grade inspection. An inspection in which samples of production are obtained by us, or a party approved by us, prior to the sale, storage, or disposal of any lot of potatoes, or any portion of a lot and the potatoes are evaluated and quality (grade) determinations are made by us, a laboratory approved by us, or a potato grader licensed or certified by the applicable State or the United States Department of Agriculture, in accordance with the United States Standards for Grades of Potatoes. The United States standards used to determine the quality (grade) deficiencies will be: For potatoes produced for chipping, the United States Standards for Grades of Potatoes for Chipping; for potatoes produced for processing, the United States Standards for Grades of Potatoes for Processing; for potatoes produced for seed, the United States Standards for Grades of Seed Potatoes; and for all other potatoes, the United States Standards for Grades of Potatoes. The quantity and number of samples required will be determined in accordance with procedure issued by FCIC.
Harvest. Lifting potatoes from within the soil to the soil surface.
Hundredweight. One hundred (100) pounds avoirdupois.
Local market. The area in which the insured potatoes are normally sold.
Lot. A quantity of production that can be separated from other quantities of production by grade characteristics, load, location or other distinctive features.
Potato certified seed program. The state program administered by a public agency responsible for the seed certification process within the state in which the seed is produced.
Tuber rot. Any soft, mushy, or leaky condition of potato tissue (soft rot or wet breakdown as defined in the United States Standards for Grades of Potatoes), including, but not limited to, breakdown caused by Southern Bacterial Wilt, Ring Rot, or Late Blight.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may select only one price election for all the potatoes in the county insured under this policy unless the Special Provisions provide different price elections by type. If the Special Provisions provide for different price elections by type, you may select one price election for each potato type designated in the Special Provisions. The price elections you choose for each type must have the same percentage relationship to the maximum price election offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) If the production from any acreage of the insured crop is not harvested, the price used to determine your indemnity will be 90 percent of your price election. This requirement is not applicable to the certified seed endorsement price election.
(c) The price election for unharvested acreage will apply to any acreage of potatoes damaged to the extent that similarly situated producers in the area would not normally care for the potatoes even if you choose to continue to care for or harvest them. Potatoes that are lifted to the soil surface and not removed from the field will also receive the price election for unharvested acreage.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are March 15.
In lieu of the premium computation method contained in section 7 of the Basic Provisions, the annual premium amount (y) is computed by multiplying (a) the production guarantee by (b) the price election for harvested acreage, by (c) the premium rate, by (d) the insured acreage, by (e) your share at the time of planting, and by (f) any applicable premium adjustment factors contained in the actuarial documents (a × b × c × d × e × f = y).
In accordance with section 8 of the Basic Provisions, the crop insured will be all the potatoes in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) Planted with certified seed (unless otherwise permitted by the Special Provisions);
(c) Planted for harvest as certified seed stock, or for human consumption, (unless specified otherwise in the Special Provisions);
(d) That are not (unless allowed by the Special Provision or by written agreement):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
In addition to the provisions of section 9 of the Basic Provisions, we will not insure any acreage that:
(a) Does not meet the rotation requirements contained in the Special Provisions for the crop; or
(b) Is damaged before the final planting date to the extent that similarly situated producers in the area would normally not further care for the crop, unless it is replanted or we agree that it is not practical to replant.
In accordance with the provisions of section 11 of the Basic Provisions, the calendar date for the end of the insurance period is the date immediately following planting as follows (exceptions, if any, for specific counties, varieties or types are contained in the Special Provisions):
(a) October 1, in Alaska;
(b) October 10 in Nebraska and Wyoming;
(c) October 15 in Colorado; Indiana; Iowa; Michigan; Minnesota; Montana; Nevada; North Dakota; South Dakota; Utah; and Wisconsin;
(d) October 20 in Maine;
(e) October 25 in Kansas; and
(f) October 31 in Humboldt, Modoc, and Siskiyou Counties, California; Connecticut; Idaho; Massachusetts; San Juan County, New Mexico; New York; Ohio; Oregon; Pennsylvania; Rhode Island; and Washington.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but only if sufficient and proper pest control measures are used;
(4) Plant disease, but only if sufficient and proper disease control measures are used;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period (see section 9(a)(1) through (7)).
(b) In addition to the causes of loss not insured against as contained in section 12 of the Basic Provisions, we will not insure against any loss of production due to:
(1) Damage that occurs or becomes evident after the end of the insurance period, including, but not limited to, damage that occurs or becomes evident in storage; or
(2) Causes, such as freeze after certain dates, as limited by the Special Provisions.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples at least 10 feet wide and extending the entire length of each field in the unit if you are going to destroy any acreage of the insured crop that will not be harvested.
(b) We must be given the opportunity to perform a grade inspection on the production from any unit for which you have given notice of damage.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which acceptable production records were not provided; and
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee (If there is unharvested acreage in the unit, the harvested and unharvested acreage will be determined separately);
(2) Multiplying each result in section 11(b)(1) by the respective price election (The price election may be limited as specified in section 3.);
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to be counted of each type, if applicable (see section 11(d)), by the respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the results of section 11(b)(5) from the result in section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share.
For example:
You have a 100 percent share in 100 harvested acres of potatoes in the unit, with a guarantee of 150 hundredweight per acre and a price election of $4.00 per hundredweight. You are only able to harvest 10,000 hundredweight. Your indemnity would be calculated as follows:
(1) 100 acres × 150 hundredweight = 15,000 hundredweight guarantee;
(2) 15,000 hundredweight × $4.00 price election = $60,000.00 value of guarantee;
(4) 10,000 hundredweight × $4.00 price election = $40,000.00 value of production to count;
(6) $60,000.00 − $40,000.00 = $20,000.00 loss; and
(7) $20,000.00 × 100 percent = $20,000.00 indemnity payment.
You also have a 100 percent share in 100 unharvested acres of potatoes in the same unit, with a guarantee of 150 hundredweight per acre and a price election of $3.60 per hundredweight. (The price election for unharvested acreage is 90.0 percent of your elected price election ($4.00 × 0.90 = $3.60.)) This unharvested acreage was appraised at 35 hundredweight per acre for a total of 3500 hundredweight as production to count. Your total indemnity for the harvested and unharvested acreage would be calculated as follows:
(1) 100 acres × 150 hundredweight = 15,000 hundredweight guarantee for the harvested acreage, and
100 acres × 150 hundredweight = 15,000 hundredweight guarantee for the unharvested acreage;
(2) 15,000 hundredweight guarantee × $4.00 price election = $60,000.00 value of guarantee for the harvested acreage, and
15,000 hundredweight guarantee × $3.60 price election = $54,000.00 value of guarantee for the unharvested acreage;
(3) $60,000.00 + $54,000.00 = $114,000.00 total value of guarantee;
(4) 10,000 hundredweight × $4.00 price election = $40,000.00 value of production to count for the harvested acreage, and 3500 hundredweight × $3.60 = $12,600.00 value of production to count for the unharvested acreage;
(5) $40,000.00 + $12,600.00 = $52,600.00 total value of production to count;
(6) $114,000.00 − $52,600.00 = $61,400.00 loss; and
(7) $61,400.00 loss × 100 percent = $61,400.00 indemnity payment.
(c) The extent of any quality loss must be determined based on samples obtained no later than the time the potatoes are placed in storage, if the production is stored prior to sale, or the date they are delivered to a buyer, wholesaler, packer, broker, or other handler if production is not stored.
(d) The total production to count (in hundredweight) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes;
(D) From which any production is disposed of without a grade inspection; or
(E) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Production lost due to harvest prior to full maturity. Production to count from such acreage will be determined by increasing the amount of harvested production by 2 percent per day for each day the potatoes were harvested prior to the date the potatoes would have reached full maturity. The date the potatoes would have reached full maturity will be considered to be 45 days prior to the calendar date for the end of the insurance period, unless otherwise specified in the Special Provisions. This adjustment will not be made if the potatoes are damaged by an insurable cause of loss, and leaving the crop in the field would either reduce production or decrease quality;
(iv) Unharvested production, including unharvested production on insured acreage you intend to put to another use or abandon, or acreage damaged by insurable causes and for which you cease to provide further care, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or cease providing care for the crop. This unharvested production may be adjusted in accordance with sections 11(e), (f), and (g); and the value of all unharvested production will be calculated using the reduced price election determined in section 2(b). If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The price used to determine the amount of any indemnity will be limited as specified in section 2 even if the representative samples are harvested. The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage (the amount of production prior to the sorting or discarding of any production).
(e) Potato production is eligible for quality adjustment if:
(1) The potatoes have freeze damage or tuber rot that is evident at, or prior to, the end of the insurance period; and
(2) A grade inspection is completed no later than 21 days after the end of the insurance period (if the Northern Potato Storage Coverage Endorsement is applicable, samples must be obtained within 60 days after the end of the insurance period and quality (grade) determinations must be completed with 21 days of sampling); and
(3) Prior to any grade inspection, you must notify us of the intended use of the potatoes so the appropriate United States standards will be applied (We may request previous sales records to verify your claimed intended use or base the intended use on the type of potato grown if such potatoes are not usually grown for the intended use you reported).
(f) Potato production to count that is eligible for quality adjustment, as specified in section 11(e), with 5 percent damage or less (by weight) will be adjusted 0.1 percent for each 0.1 percent of damage through 5.0 percent.
(g) Potato production to count that is eligible for quality adjustment, as specified in section 11(e), with 5.1 percent damage or more (by weight) will be determined as follows:
(1) If a price is agreed upon between you and a buyer within 21 days (60 days if the Northern Potato Storage Coverage endorsement is applicable), after the end of the insurance period, or the production is delivered to a buyer within 21 days (60 days if the Northern Potato Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production will be determined by:
(i) Dividing the price per hundredweight received or that will be received by the highest price election designated in the Special Provisions or addendum thereto for the insured potato type (if the production is sold for a price lower than the value appropriate to and representative of the local market, we will determine the value of the production based on the price you could have received in the local market); and
(ii) Multiplying the result (not to exceed 1.0) by the number of hundredweight of sold or to be sold production (We may verify this after the production has actually been sold); or
(2) If a price is not agreed upon between you and a buyer and the production is not delivered within 21 days (60 days if the Northern Storage Coverage Endorsement is applicable) after the end of the insurance period, and that remain in storage 22 or more days (61 or more days if the Northern Potato Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production will be the greater of:
(i) The amount determined by:
(A) Dividing the price per hundredweight that is received, or will be received after the end of the applicable insurance period, by the highest price election designated in the Special Provisions or addendum thereto for the insured potato type (if the production is sold for a price lower than the value appropriate to and representative of the local market, we will determine the value of the production based on the price you could have received in the local market); and
(B) Multiplying the result of section 11(g)(2)(i)(A) (not to exceed 1.0) by the number of hundredweight of sold or to be sold production (We may verify this after the production has actually been sold); or
(ii) The amount of production determined by:
(A) Reducing any harvested or appraised production:
(1) By 0.1 percent for each 0.1 percent damage through 5.0 percent;
(2) By 0.5 percent for each 0.1 percent of damage from 5.1 percent through 6.0 percent;
(3) By 1.0 percent for each 0.1 percent of damage from 6.1 through 13.5 percent; or
(B) Including 15 percent of the production when damage is in excess of 13.5 percent.
(iii) For any production discarded:
(A) Within 21 days (60 days if the Northern Potato Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production to count will be:
(1) Zero if we determine the production could not have been sold; or
(2) Determined in accordance with section 11(g)(2)(ii) if we determine the production could have been sold; or
(B) Later than 21 days (60 days if the Northern Potato Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production to count will be adjusted in accordance with section 11(g)(2)(ii).
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.143 Northern potato crop insurance – quality endorsement.
The Northern Potato Crop Insurance Quality Endorsement Provisions for the 2022 and succeeding crop years are as follows:
Percentage factor. The historical average percentage of potatoes grading U.S. No. 2 or better, by type, determined from your records. If at least 4 continuous years of records are available, the percentage factor will be the simple average of the available records not to exceed 10 years. If less than 4 years of records are available, the percentage factor will be determined based on a combination of your records and the percentage factor contained in the Special Provisions so that such a combination would be the functional equivalent of 4 years of records.
2. The additional premium amount for this coverage will be determined by multiplying the number of your insured planted acres of potatoes by the premium rate for this Endorsement contained in the actuarial documents. In return for payment of the additional premium designated in the actuarial documents, this Endorsement is attached to and made part of your Northern Potato Crop Insurance Provisions subject to the terms and conditions described herein. In the event of a conflict between the Northern Potato Crop Insurance Provisions and this Endorsement, this Endorsement will control.
3. You must elect this endorsement on or before the sales closing date for the initial crop year in which you wish to insure your potatoes under this endorsement. This endorsement will continue in effect until canceled. It may be canceled by either you or us for any succeeding crop year by giving written notice to the other party on or before the cancellation date.
4. All acreage of potatoes insured under the Northern Potato Crop Insurance Provisions will be insured under this endorsement except:
(a) Any acreage specifically excluded by the actuarial documents; and
(b) Any acreage grown for seed.
5. We will adjust the production to count determined in accordance with section 15 of the Basic Provisions and section 11 of the Northern Potato Crop Insurance Provisions for potatoes that do not meet U.S. No. 2 grade requirements from unharvested acreage or harvested acreage that is stored or is marketed after a grade inspection due to:
(a) Internal defects as long as the number of potatoes with such defects are in excess of the tolerances allowed for the U.S. No. 2 grade potatoes on a lot basis and are not separable from undamaged production using methods used by the packers or processors to whom you normally deliver your potato production as follows:
(1) If a price is agreed upon between you and a buyer within 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable) after the end of the insurance period, or the production is delivered to a buyer within 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable) after the end of the insurance period, the amount of production will be determined by (adjustment under section 5(a)(1) or 5(a)(2)(i) will not be performed if it already has been performed under the terms of section 11(g) of the Northern Potato Crop Insurance Provisions):
(i) Dividing the price received or that will be received per hundredweight by the highest price election designated in the actuarial documents for the insured potato type (if the production is sold for a price lower than the value appropriate to and representative of the local market, we will determine the value of the production based on the price you could have received in the local market); and
(ii) Multiplying the result (not to exceed 1.0) by the number of hundredweight of sold or to be sold production (We may verify this after the production has actually been sold); or
(2) If a price is not agreed upon between you and a buyer and the production is not delivered within 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable) after the end of the insurance period, and the potatoes remain in storage 22 or more days (61 or more days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production will be the greater of:
(i) The amount of production determined by:
(A) Dividing the price per hundredweight that is received, or will be received after the end of the applicable insurance period, by the highest price election designated in the actuarial documents for the insured potato type (if the production is sold for a price lower than the value appropriate to and representative of the local market, we will determine the value of the production based on the price you could have received in the local market); and
(B) Multiplying the result of section 5(a)(2)(i)(A) (not to exceed 1.0) by the number of hundredweight of sold or to be sold production (We may verify this after the production has actually been sold); or
(ii) The amount of production determined as follows:
(A) The combined weight of sampled potatoes grading U.S. No. 2 or better (the amount of potatoes grading U.S. No. 2 will be based on a grade inspection completed no later than 21 days after the end of the insurance period (if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable), samples must be obtained within 60 days after the end of the insurance period and a grade inspection completed within 21 days of sampling) and are damaged by freeze or tuber rot will be divided by the total sample weight;
(B) The percentage determined in section 5(a)(2)(ii)(A) will be divided by the applicable percentage factor; and
(C) The result of section 5(a)(2)(ii)(B) will be multiplied by the amount of production to count determined in accordance with section 15 of the Basic Provisions and section 11 of the Northern Potato Crop Insurance Provisions.
(b) Factors other than those specified in section 5(a), in accordance with section 5(a)(2)(ii).
6. For any production that qualifies for adjustment in accordance with section 5(a) and that is discarded:
(a) Within 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production to count will be:
(1) Zero if we determine the production could not have been sold; or
(2) Determined in accordance with section 5(a)(2)(ii) if we determine the production could have been sold; or
(b) Later than 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production to count will be adjusted in accordance with section 5(a)(2)(ii).
7. Potatoes harvested or appraised prior to full maturity that do not grade U.S. No. 2 due solely to size will be considered to have met U.S. No. 2 standards unless the potatoes are damaged by an insurable cause of loss and leaving the crop in the field would either reduce production or decrease quality.
8. Production to count for potatoes destroyed, stored, or marketed without a grade inspection will be 100 percent of the gross weight of such potatoes.
9. All determinations must be based upon a grade inspection.
10. The actuarial documents may provide “U.S. No. 1 grade” in place of “U.S. No. 2 grade” as used in this endorsement.
(a) If both U.S. No.1 and U.S. No. 2 grades are available in the Special Provisions, you may elect U.S. No. 1 or 2 grade by potato type or group, if separate types or groups are specified in the Special Provisions.
(b) If both fresh and processing types are specified in the actuarial documents, you cannot elect the fresh type for any potatoes grown for processing or chipping.
§ 457.144 Northern potato crop insurance – processing quality endorsement.
The Northern Potato Crop Insurance Processing Quality Endorsement Provisions for the 2022 and succeeding crop years are as follows:
Broker. Any business enterprise regularly engaged in the buying and selling of processing potatoes, that possesses all licenses and permits as required by the state in which it operates, and when required, has the necessary facilities or the contractual access to such facilities, with enough equipment to accept and transfer processing potatoes to the broker within a reasonable amount of time after harvest or the typical storage period.
Percentage factor. The term as defined in the Northern Potato Crop Insurance – Quality Endorsement.
Processor. Any business enterprise regularly engaged in processing potatoes for human consumption, that possesses all licenses and permits for processing potatoes required by the state in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process processing potatoes grown under a processing contract within a reasonable amount of time after harvest or the typical storage period.
Processor contract. A written agreement between the producer and processor, or between a producer and a broker, containing at a minimum:
(a) The producer’s commitment to plant and grow processing potatoes, and to deliver the potato production to the processor or broker;
(b) The processor’s or broker’s commitment to purchase all the production stated in the processing contract; and
(c) A price or pricing mechanism to determine the value of delivered production.
2. To be eligible for coverage under this endorsement, you must have a:
(a) Northern Potato Crop Insurance – Quality Endorsement in place and elect this endorsement on or before the sales closing date for the initial crop year in which you wish to insure your potatoes under this endorsement:
(1) Cancellation of your Northern Potato Crop Insurance – Quality Endorsement will automatically result in cancellation of this endorsement;
(2) This endorsement may be canceled by either you or us for any succeeding crop year by giving written notice to the other party on or before the cancellation date; and
(b) Processor contract executed with a processor or broker for the potato types insured under this endorsement that is applicable for the crop year:
(1) A copy of the processor contract must be submitted to us on or before the acreage reporting date for potatoes; and
(2) Failure to timely provide the processor contract will result in no coverage under this endorsement and coverage will be provided only under the terms of the Northern Potato Crop Insurance Provisions and Northern Potato Crop Insurance – Quality Endorsement.
3. The additional premium amount for this coverage will be determined by multiplying the number of your insured planted acres of potatoes by the premium rate for this Endorsement contained in the actuarial documents. In return for payment of the additional premium designated in the actuarial documents, this Endorsement is attached to and made part of your Northern Potato Crop Insurance Provisions and Northern Potato Crop Insurance – Quality Endorsement subject to the terms and conditions described herein. In the event of a conflict between the Northern Potato Crop Insurance Provisions or Northern Potato Crop Insurance – Quality Endorsement and this Endorsement, this Endorsement will control.
4. All terms of the Northern Potato Crop Insurance – Quality Endorsement not modified by this endorsement will be applicable to acreage covered under this endorsement.
5. If you elect this endorsement, all insurable acreage of production under contract with the processor or broker must be insured under this endorsement; however:
(a) When the processor contract requires the processor or broker to purchase a stated amount of production, rather than all of the production from a stated number of acres, the insurable acres will be determined by dividing the stated amount of production by the approved yield for the acreage; and
(b) The number of acres insured under this endorsement will not exceed the actual number of acres planted to the potato types needed to fulfill the contract.
6. Potato lots may be adjusted in accordance with section 8 if such potatoes:
(a) Fail to meet the standards in section 7(a), (b), (c), or (d), or a standard contained in the processor contract, for the same quality factors specified in section 7(a), (b), (c), or (d), if such standard is less stringent;
(b) Have a value less than the maximum price election; and
(c) Fail to meet the applicable standards and are not separable from undamaged production using methods used by processors to whom you normally deliver your potato production.
7. To qualify for a quality reduction under this endorsement, the potatoes must:
(a) Fail to meet the applicable U.S. No. 2 grade requirements due to internal defects as long as the number of potatoes with such defects are in excess of the tolerance allowed for U.S. No. 2 grade potatoes;
(b) Have a specific gravity lower than 1.074;
(c) Have a fry color of No. 3 or darker due to either sugar exceeding 10 percent or sugar ends exceeding 19 percent; or
(d) Have an Agtron rating lower than 58.
8. In lieu of the provisions contained in section 5 of the Northern Potato Crop Insurance – Quality Endorsement, production to count determined in accordance with section 15 of the Basic Provisions and section 11 of the Northern Potato Crop Insurance Provisions, from unharvested acreage or harvested acreage that is stored or is marketed after a grade inspection determined in section 10, will be adjusted in accordance with sections 8(a) or 8(b), whichever is applicable, (adjustment under section 8(a) or 8(b)(1) will not be performed if it already has been performed under the terms of section 11(g) of the Northern Potato Crop Insurance Provisions):
(a) If a price is agreed upon between you and a buyer within 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsementis applicable) after the end of the insurance period, or the production is delivered to a buyer within 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production will be determined by:
(1) Dividing the price per hundredweight received or that will be received by the highest price election designated in the actuarial documents for the insured potato type (If the production is sold for a price lower than the value appropriate to and representative of the local market, we will determine the value of the production based on the price you could have received in the local market); and
(2) Multiplying the result of section 8(a)(1) (not to exceed 1.0) by the number of hundredweight of sold or to be sold production (We may verify this after the production has actually been sold); or
(b) If a price is not agreed upon between you and a buyer and the production is not delivered within 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsementis applicable), after the end of the insurance period, and the production remains in storage 22 or more days (61 or more days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production will be the greater of:
(1) The amount of production determined by:
(i) Dividing the price per hundredweight that is received, or that will later be received after the end of the applicable insurance period, by the highest price election designated in the actuarial documents for the insured potato type (if the production is sold for a price lower than the value appropriate to and representative of the local market, we will determine the value of the production based on the price you could have received in the local market); and
(ii) Multiplying the result of section 8(b)(1)(i) (not to exceed 1.0) by the number of hundredweight of sold or to be sold production (We may verify this after the production has actually been sold); or
(2) The amount of production determined as follows:
(i) The combined weight of sampled potatoes that grade U.S. No. 2 or better (the amount of potatoes grading U.S. No. 2 or better will be based on a grade inspection completed no later than 21 days after the end of the insurance period, if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable; samples must be obtained within 60 days after the end of the insurance period and grade inspection completed within 21 days of sampling) and are damaged by freeze or tuber rot will be divided by the total sample weight;
(A) The percentage determined in section 8(b)(2)(i) will be divided by the applicable percentage factor; and
(B) The result of section 8(b)(2)(i)(A) will be multiplied by the amount of production to count determined in accordance with section 15 of the Basic Provisions and section 11 of the Northern Potato Crop Insurance Provisions.
(c) The production to count for potatoes that have a value less than the maximum price election due to factors other than those specified in section 7 will be adjusted in accordance with section 8(b)(2).
9. For any production that qualifies for adjustment in accordance with section 7 and that is discarded:
(a) Within 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production to count will be:
(1) Zero if we determine the production could not have been sold; or
(2) Determined in accordance with section 8(b)(2) if we determine the production could have been sold; or
(b) Later than 21 days (60 days if the Northern Potato Crop Insurance – Storage Coverage Endorsement is applicable), after the end of the insurance period, the amount of production to count will be adjusted in accordance with section 8(b)(2).
10. All quality determinations must be based upon a grade inspection using the United States Standards for Grades of Potatoes for Processing or the United States Standards for Grades of Potatoes for Chipping.
11. The actuarial documents may provide “U.S. No. 1 grade” in place of “U.S. No. 2 grade” as used in this endorsement. If both U.S. No. 1 and 2 grades are available in the actuarial documents, you may elect U.S. No. 1 or 2 grade by potato type or group, if separate types or groups are specified in the Special Provisions.
§ 457.145 Northern potato crop insurance – certified seed endorsement.
The Northern Potato Crop Insurance Certified Seed Endorsement Provisions for the 2022 and succeeding crop years are as follows:
FCIC policies:
1. The additional premium amount for this coverage will be determined by multiplying the number of your insured planted acres of certified seed potatoes by the premium rate for this Endorsement contained in the actuarial documents. In return for payment of the additional premium designated in the actuarial documents, this Endorsement is attached to and made part of your Northern Potato Crop Insurance Provisions subject to the terms and conditions described herein. In accordance with section 8, since your insurance period is not extended in this Endorsement, any additional premium paid for coverage under the Northern Potato Crop Insurance – Storage Coverage Endorsement will not apply to the additional coverage provided under the terms of this Endorsement. In the event of a conflict between the Northern Potato Crop Insurance Provisions and this Endorsement, this Endorsement will control.
2. You must elect this endorsement on or before the sales closing date for the initial crop year you wish to insure your potatoes under this endorsement. This endorsement will continue in effect until canceled. It may be canceled by either you or us for any succeeding crop year by giving written notice to the other party on or before the cancellation date.
3. All potatoes grown on insurable acreage and that are entered into the potato seed certification program administered by the state in which the seed is grown must be insured unless limited by section 4 below.
4. Your certified seed production guarantee per-acre will be the per-acre production guarantee used to cover the same acreage under the terms of the Northern Potato Crop Insurance Provisions. However, unless a written agreement provides otherwise, if the total amount of insurable certified seed acreage you have for the current crop year is greater than 125 percent of your average number of acres entered into and passing certification in the potato certified seed program in the three previous calendar years, your certified seed production guarantee for each unit will be reduced as follows:
(a) Multiply the average number of your acres entered into and passing certification in the potato certified seed program the 3 previous calendar years by 1.25 and divide this result by the number of acres grown by you for certified seed in the current crop year; and
(b) Multiply the result of section 4(a) (not to exceed 1.0) by the production guarantee for certified seed for the current crop year.
5. You must provide acceptable records of your certified seed potato acreage and production for the previous three years. These records must clearly indicate the number of your acres entered into the potato seed certification program administered by the state in which the seed is grown.
6. All potatoes insured for certified seed production must be produced and managed in accordance with the regulations, standards, practices, and procedures required for certification under the potato certified seed program. Any production that does not qualify as certified seed because of varietal mixing or your failure to meet any requirements under the potato certified seed program will be considered as lost due to uninsured causes.
7. If, due to insurable causes occurring within the insurance period, the amount of certified seed you produce is less than your certified seed production guarantee, we will settle your claim by:
(a) Multiplying the insured acreage by its respective certified seed production guarantee;
(b) Multiplying each result in section 7(a) by the dollar amount per hundredweight contained in the actuarial documents for production covered under this endorsement;
(c) Totaling the results of section 7(b);
(d) Multiplying the number of hundredweight of production that qualify as certified seed and any amount of production lost due to uninsured causes, or that does not qualify as certified seed due to uninsured causes, by the dollar amount per hundredweight contained in the actuarial documents for production covered under this endorsement;
(e) Subtracting the result of section 7(d) from the result of section 7(c); and
(f) Multiplying the result of section 7(e) by your share.
8. You must notify us of any loss under this endorsement not later than 14 days after you receive notice from the state certification agency that any acreage or production has failed certification. Nothing herein extends the insurance period beyond the time period specified in section 8 of the Northern Potato Crop Insurance Provisions and section 11 of the Basic Provisions. In lieu of the provisions in section 14(c) of the Basic Provisions specifying that any claim for indemnity must be filed not later than 60 days after the end of the insurance period, your claim for indemnity must be filed by the later of:
(a) Sixty (60) days after the end of the insurance period; or
(b) Thirty (30) days after you receive notice from the state certifying agency that production has failed certification.
9. Acreage covered under the terms of this endorsement will have the same unit structure as provided under the Basic Provisions and the Northern Potato Crop Insurance Provisions. For example, if you have two optional units (00101 and 00102) under your Northern Potato Crop Insurance Provisions and you elect this endorsement, you will also have two optional units (00201 and 00202) for certified seed coverage, provided that certified seed is grown in both units 00101 and 00102. Or, if you have two basic units (00100 and 00200) under your Northern Potato Crop Insurance Provisions and you elect this endorsement, you will also have two basic units (00300 and 00400) for certified seed coverage, provided that certified seed is grown in both units 00100 and 00200. In the event certified seed acreage is not grown in the same optional or basic units as acreage covered under the Basic Provisions and the Northern Potato Crop Insurance Provisions, certified seed units will be established in accordance with the unit division provisions contained in the Basic Provisions and the Northern Potato Crop Insurance Provisions. For example, if a basic unit is divided into two optional units for potato acreage covered under the Basic Provisions and the Northern Potato Crop Insurance Provisions, but certified seed is grown in only one of those optional units, the certified seed acreage will be insured as one basic unit.
10. Failure to meet any requirements for seed to be used to produce a subsequent seed crop will not be covered. All the production that meets requirements for certified seed used to produce a commercial crop will be included in production to count.
§ 457.146 Northern potato crop insurance – storage coverage endorsement.
The Northern Potato Crop Insurance Storage Coverage Endorsement Provisions for the 2022 and succeeding crop years are as follows:
1. The additional premium amount for this coverage will be determined by multiplying the number of your insured planted acres of potatoes by the premium rate for this Endorsement contained in the actuarial documents. In return for payment of the required additional premium as contained in the actuarial documents, this Endorsement is attached to and made part of your Northern Potato Crop Insurance Provisions subject to the terms and conditions described herein. In the event of a conflict between the Northern Potato Crop Insurance Provisions and this Endorsement, this Endorsement will control.
2. You must elect this endorsement on or before the sales closing date for the initial crop year in which you wish to insure your potatoes under this endorsement. This endorsement will continue in effect until canceled. It may be canceled by either you or us for any succeeding crop year by giving written notice to the other party on or before the cancellation date.
3. Potato production grown under a contract that requires the production to be delivered to a buyer within three days of harvest will not be insured under this endorsement. When such contract requires delivery of a stated amount of production, rather than all of the production from a stated amount of acres, the number of acres not insured under this endorsement will be determined by dividing the stated amount of production by the approved yield for the acreage. All other potato production insured under the Northern Potato Crop Insurance Provisions must be insured under this endorsement unless the Special Provisions allow you to exclude certain potato varieties, types, or groups from this endorsement, and you elect to exercise this option. If you elect this endorsement, such exclusions must be shown annually on your acreage report and will be applicable to all acreage of the excluded varieties, types, or groups for the crop year.
4. When production from separate insurance units, basic or optional, is commingled in storage, the production to count for each unit will be allocated pro rata based on the production placed in storage from each unit. Such allocation will be allowed only if verifiable records of production placed in storage are available by unit. If you do not have verifiable records, all units without verifiable records will be combined in accordance with section 11 of the Northern Potato Crop Insurance Provisions. For example, if 500 hundredweight from one unit are commingled with 1,500 hundredweight from another unit and the production to count from the stored production is 1,000 hundredweight, 250 hundredweight of production to count will be allocated to the unit contributing 500 hundredweight and 750 hundredweight to the unit contributing 1500 hundredweight to the stored production. This provision does not eliminate or change any other requirement contained in this policy to provide or maintain separate records of acreage or production by unit.
5. In lieu of section 9(b)(1) of the Northern Potato Crop Insurance Provisions, the extended coverage provided by this endorsement will be applicable but only if:
(a) Insured potatoes are damaged within the insurance period by an insured cause other than freeze that later results in:
(1) Tuber rot as defined in the Northern Potato Crop Insurance Provisions, to the extent that 5.1 percent (by weight) or more of the insured production is affected;
(2) Internal defects to the extent that such defects are in excess of the amount allowed for the U.S. grade standard you elected for purposes of coverage under the Northern Potato Crop Insurance – Quality Endorsement. Such defects must not be separable from undamaged production using methods used by the packers or processors to which you normally deliver your potato production. This coverage is applicable only to production covered under the Northern Potato Crop Insurance – Quality Endorsement; or
(3) The potatoes damaged by an insurance cause of loss fail to meet any of the following standards or a less stringent standard for the same quality factors specified below, contained in the processor contract, if applicable, (this coverage is applicable only to production covered under the Northern Potato Crop Insurance – Processing Quality Endorsement):
(i) A specific gravity lower than 1.074;
(ii) A fry color of No. 3 or darker due to either sugar exceeding 10 percent or sugar ends exceeding 19 percent; or
(iii) An Agtron rating lower than 58.
(b) You notify us within 72 hours of your initial discovery of any damage that has or that may later result in the quality deficiencies specified in section 5(a);
(c) The percentage of production with any of the quality deficiencies specified in section 5(a) is determined based on samples obtained no later than 60 days after the end of the insurance period and the potatoes are evaluated and quality (grade) determinations are made by us, a laboratory approved by us, a potato grader licensed or certified by the applicable State or the United States Department of Agriculture, or us, in accordance with the United States Standards for Grades of Potatoes:
(1) Samples of damaged production must be obtained by us or a party approved by us prior to the sale or disposal of any lot of potatoes; and
(2) If production is not sold or disposed of within 60 days after the end of the insurance period, samples must be obtained within 60 days after the end of the insurance period and a quality (grade) determination must be completed within 21 days of sampling.
§ 457.147 Central and Southern potato crop insurance provisions.
The Central and Southern Potato Crop Insurance Provisions for the 2017 and succeeding crop years in counties with a contract change date of November 30, and for the 2018 and succeeding crop years in counties with a contract change date of June 30 and September 30, are as follows:
These provisions will be applicable in Alabama; Arizona; all California counties except Humboldt, Modoc, and Siskiyou; Delaware; Florida; Georgia; Maryland; Missouri; New Jersey; all New Mexico counties except San Juan; North Carolina; Oklahoma; Texas; and Virginia; and other states or counties if allowed by the Special Provisions.
Certified seed. Potatoes that were entered into the potato certified seed program and that meet all requirements for production to be used to produce a seed crop for the next crop year or a potato crop for harvest for commercial uses in the next crop year.
Discard. Disposal of production by you, or a person acting for you, without receiving any value for it.
Disposed. Any disposition of the crop including but not limited to sale or discard.
Grade inspection. An inspection in which samples of production are obtained by us, or a party approved by us, prior to the sale, storage, or disposal of any lot of potatoes, or any portion of a lot and the potatoes are evaluated and quality (grade) determinations are made by us, a laboratory approved by us, or a potato grader licensed or certified by the applicable State or the United States Department of Agriculture, in accordance with the United States Standards for Grades of Potatoes. The United States standards used to determine the quality (grade) deficiencies will be: For potatoes produced for chipping, the United States Standards for Grades of Potatoes for Chipping; for potatoes produced for processing, the United States Standards for Grades of Potatoes for Processing; for potatoes produced for seed, the United States Standards for Grades of Seed Potatoes; and for all other potatoes, the United States Standards for Grades of Potatoes. The quantity and number of samples required will be determined in accordance with procedure issued by FCIC.
Harvest. Lifting potatoes from within the soil to the soil surface.
Hundredweight. One hundred (100) pounds avoirdupois.
Lot. A quantity of production that can be separated from other quantities of production by grade characteristics, load, location or other distinctive features.
Planting period. The period of time between the calendar dates designated in the Special Provisions for the planting of spring-planted, summer-planted, fall-planted, or winter-planted potatoes.
Potato certified seed program. The state program administered by a public agency responsible for the seed certification process within the state in which the seed is produced.
Practical to replant. In lieu of the definition of “Practical to replant” contained in section one of the Basic Provisions, practical to replant is defined as our determination, after loss or damage to the insured crop, based on factors including, but not limited to, moisture availability, condition of the field, marketing windows, and time to crop maturity, that replanting to the insured crop will allow the crop to attain maturity prior to the calendar date for the end of the insurance period. It will not be considered practical to replant after the end of the late planting period, or the end of the planting period in which initial planting took place in counties for which the Special Provisions designates separate planting periods, unless replanting is generally occurring in the area.
A basic unit, as defined in section 1 of the Basic Provisions, will be divided into additional basic units by planting period.
(a) In addition to the requirements of section 2 of the Basic Provisions, you may select only one price election for all the potatoes in the county insured under this policy unless the Special Provisions provide different price elections by type. If the Special Provisions provide for different price elections by type, you may select one price election for each potato type designated in the Special Provisions. The price elections you choose for each type must have the same percentage relationship to the maximum price election offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) If the production from any acreage of the insured crop is not harvested, the price used to determine your indemnity will be 90 percent of your price election.
(c) The price election for unharvested acreage will apply to any acreage of potatoes damaged to the extent that similarly situated producers in the area would not normally care for the potatoes even if you choose to continue to care for or harvest them. Potatoes that are lifted to the soil surface and not removed from the field will also receive the price election for unharvested acreage.
In accordance with section 4 of the Basic Provisions, the contract change date is:
(a) June 30 preceding the cancellation date for counties with a September 30 cancellation date;
(b) September 30 preceding the cancellation date for counties with a November 30, December 31, or January 31 cancellation date; and
(c) November 30 preceding the cancellation date for counties with a February 28 or March 15 cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State and county | Dates |
|---|---|
| Pinellas, Hillsborough, Polk, Osceola, and Brevard Counties, Florida, and all Florida counties lying south thereof | September 30. |
| Arizona; all California counties; and all Texas counties except Bailey, Castro, Dallam, Deaf Smith, Floyd, Gaines, Hale, Hartley, Haskell, Knox, Lamb, Parmer, Swisher, and Yoakum | November 30. |
| Alabama; Georgia; Missouri; and All Florida Counties except Pinellas, Hillsborough, Polk, Osceola, and Brevard Counties, Florida, and all Florida counties to the south thereof | December 31. |
| Delaware; Maryland; New Jersey; North Carolina; and Virginia | January 31. |
| Oklahoma; and Haskell and Knox Counties, Texas | February 28. |
| Bailey, Castro, Dallam, Deaf Smith, Floyd, Gaines, Hale, Hartley, Lamb, Parmer, Swisher, and Yoakum counties, Texas; and all New Mexico counties except San Juan County | March 15. |
In lieu of the premium computation method contained in section 7 of the Basic Provisions, the annual premium amount (y) is computed by multiplying (a) the production guarantee by (b) the price election for harvested acreage, by (c) the premium rate, by (d) the insured acreage, by (e) your share at the time of planting, and by (f) any applicable premium adjustment factors contained in the actuarial documents (a × b × c × d × e × f = y).
In accordance with section 8 of the Basic Provisions, the crop insured will be all the potatoes in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) Planted with certified seed (unless otherwise permitted by the Special Provisions);
(c) Planted for harvest as certified seed stock, or for human consumption, (unless specified otherwise in the Special Provisions);
(d) That are not (unless allowed by the Special Provisions or by written agreement):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
In addition to the provisions of section 9 of the Basic Provisions, we will not insure any acreage that:
(a) Does not meet the rotation requirements contained in the Special Provisions for the crop; or
(b) Is damaged before the final planting date or before the end of the applicable planting period in counties for which the Special Provisions designate separate planting periods, to the extent that similarly situated producers in the area would normally not further care for the crop, unless it is replanted or we agree that it is not practical to replant.
In accordance with the provisions of section 11 of the Basic Provisions, the calendar date for the end of the insurance period is the date immediately following planting as follows (exceptions, if any, for specific counties, varieties or types are contained in the Special Provisions):
(a) July 15 in Missouri; and all Texas counties except Bailey, Castro, Dallam, Deaf Smith, Floyd, Gaines, Hale, Haskell, Hartley, Knox, Lamb, Parmer, Swisher, and Yoakum.
(b) July 25 in Arizona.
(c) August 15 in North Carolina; Oklahoma; and Haskell and Knox Counties, Texas.
(d) August 31 in Virginia.
(e) In Alabama; California; Florida; and Georgia; the dates established by the Special Provisions for each planting period; and
(f) October 15 in Bailey, Castro, Dallam, Deaf Smith, Floyd, Gaines, Hale, Hartley, Lamb, Parmer, Swisher, and Yoakum Counties, Texas; Delaware; Maryland; New Jersey; and all counties in New Mexico except San Juan.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss which occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but only if sufficient and proper pest control measures are used;
(4) Plant disease, but only if sufficient and proper disease control measures are used;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period (see section 10(a) (1) through (7)).
(b) In addition to the causes of loss not insured against as contained in section 12 of the Basic Provisions, we will not insure against any loss of production due to:
(1) Damage that occurs or becomes evident after the end of the insurance period, including, but not limited to, damage that occurs or becomes evident in storage; or
(2) Causes, such as freeze after certain dates, as limited by the Special Provisions.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples at least 10 feet wide and extending the entire length of each field in the unit if you are going to destroy any acreage of the insured crop that will not be harvested.
(b) We must be given the opportunity to perform a grade inspection on the production from any unit for which you have given notice of damage.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which acceptable production records were not provided; and
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee (if there is unharvested acreage in the unit, the harvested and unharvested acreage will be determined separately);
(2) Multiplying each result in section 12(b)(1) by the respective price election (the price election may be limited as specified in section 3.);
(3) Totaling the results of section 12(b)(2);
(4) Multiplying the total production to be counted of each type, if applicable, (see section 12(d)) by the respective price election;
(5) Totaling the results of section 12(b)(4);
(6) Subtracting the results of section 12(b)(5) from the result in section 12(b)(3); and
(7) Multiplying the result of section 12(b)(6) by your share.
For example: You have a 100 percent share in 100 harvested acres of potatoes in the unit, with a guarantee of 150 hundredweight per acre and a price election of $4.00 per hundredweight. You are only able to harvest 10,000 hundredweight. Your indemnity would be calculated as follows:
(1) 100 acres × 150 hundredweight = 15,000 hundredweight guarantee;
(2) 15,000 hundredweight × $4.00 price election = $60,000.00 value of guarantee;
(4) 10,000 hundredweight × $4.00 price election = $40,000.00 value of production to count;
(5) $60,000.00 − $40,000.00 = $20,000.00 loss; and
(6) $20,000.00 × 100 percent = $20,000.00 indemnity payment.
You also have a 100 percent share in 100 unharvested acres of potatoes in the same unit, with a guarantee of 150 hundredweight per acre and a price election of $3.60 per hundredweight. (The price election for unharvested acreage is 90.0 percent of your elected price election ($4.00 × 0.90 = $3.60.)) This unharvested acreage was appraised at 35 hundredweight per acre for a total of 3500 hundredweight as production to count. Your total indemnity for the harvested and unharvested acreage would be calculated as follows:
(1) 100 acres × 150 hundredweight = 15,000 hundredweight guarantee for the harvested acreage, and
100 acres × 150 hundredweight = 15,000 hundredweight guarantee for the unharvested acreage;
(2) 15,000 hundredweight guarantee × $4.00 price election = $60,000.00 value of guarantee for the harvested acreage, and
15,000 hundredweight guarantee × $3.60 price election = $54,000.00 value of guarantee for the unharvested acreage;
(3) $60,000.00 + $54,000.00 = $114,000.00 total value of guarantee;
(4) 10,000 hundredweight × $4.00 price election = $40,000.00 value of production to count for the harvested acreage, and 3500 hundredweight × $3.60 = $12,600.00 value of production to count for the unharvested acreage;
(5) $40,000.00 + $12,600.00 = $52,600.00 total value of production to count;
(6) $114,000.00 − $52,600.00 = $61,400.00 loss; and
(7) $61,400.00 loss × 100 percent = $61,400.00 indemnity payment.
(c) The extent of any quality loss must be determined based on samples obtained no later than the time potatoes are placed in storage, if the production is stored prior to sale, or the date they are delivered to a buyer, wholesaler, packer, broker, or other handler if production is not stored.
(d) The total production to count (in hundredweight) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes;
(D) From which any production is disposed of without a grade inspection; or
(E) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Production lost due to harvest prior to full maturity. Production to count from such acreage will be determined by increasing the amount of harvested production by 2 percent per day for each day the potatoes were harvested prior to the date the potatoes would have reached full maturity. The date the potatoes would have reached full maturity will be considered to be 45 days prior to the calendar date for the end of the insurance period, unless otherwise specified in the Special Provisions. This adjustment will not be made if the potatoes are damaged by an insurable cause of loss, and leaving the crop in the field would either reduce production or decrease quality.
(iv) Unharvested production, including unharvested production on insured acreage you intend to put to another use or abandon, or acreage damaged by insurable causes and for which you cease to provide further care, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or cease providing care for the crop. This unharvested production may be adjusted in accordance with sections 12(e), and the value of all unharvested production will be calculated using the reduced price election determined in section 3(b). If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The price used to determine the amount of any indemnity will be limited as specified in section 3 even if the representative samples are harvested. The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage determined in accordance with section 12(e).
(e) Only marketable lots of mature potatoes will be production to count for loss adjustment purposes, except for production specified in 12(e)(1):
(1) Production not meeting the standards for grading U.S. No. 2 due to external defects will be determined on an individual basis for all harvested and unharvested potatoes if we determine it is or would be practical to separate the damaged production;
(2) All determinations must be based upon a grade inspection; and
(3) Prior to any grade inspection, you must notify us of the intended use of the potatoes so the appropriate United States Standard will be applied (We may request previous sales records to verify your claimed intended use or base the intended use on the type of potato grown if such potatoes are not usually grown for the intended use you reported).
(4) Marketable lots of potatoes will include any lot of potatoes that is:
(i) Stored;
(ii) Sold as seed;
(iii) Sold for human consumption; or
(iv) Harvested and not sold or that is appraised if such lots meet the standards for grading U.S. No. 2 grade or better on a sample basis.
(5) Marketable lots will also include any potatoes that we determine:
(i) Could have been sold for seed or human consumption in the general marketing area;
(ii) Were not sold as a result of uninsured causes including, but not limited to, failure to meet chipper or processor standards for fry color or specific gravity; or
(iii) Were disposed of without our prior written consent and such disposition prevented our determination of marketability.
(6) Unless included in section 12(e)(4) or (5), a potato lot will not be considered marketable if, due to insurable causes of damage, it:
(i) Is partially damaged, and is salvageable only for starch, alcohol, or livestock feed;
(ii) Does not meet the standards for grading U.S. No. 2 grade or better due to internal defects; or
(iii) Does not meet the standards for grading U.S. No. 2 grade or better due to external defects, and it is not practical to separate the damaged production.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.148 Fresh market pepper crop insurance provisions.
The fresh market pepper crop insurance provisions for the 2024 and succeeding crop years are as follows:
Acre. 43,560 square feet of land when row widths do not exceed six feet, or if row widths exceed six feet, the land area on which at least 7,260 linear feet of rows are planted.
Bell pepper. An annual pepper (of the capsicum annum species, grossum group), widely cultivated for its large, crisp, edible fruit.
Box. One and one-ninth (1
Crop year. In lieu of the definition of “crop year” contained in section 1 (Definitions) of the Basic Provisions (§ 457.8), crop year is a period of time that begins on the first day of the earliest planting period for fall planted peppers and continues through the last day of the insurance period for spring planted peppers. The crop year is designated by the calendar year in which spring planted peppers are harvested.
Excess rain. An amount of precipitation sufficient to directly damage the crop.
Freeze. The formation of ice in the cells of the plant or its fruit, caused by low air temperatures.
Harvest. The picking of peppers on the unit.
Mature bell pepper. A pepper that has reached the stage of development that will withstand normal handling and shipping.
Plant stand. The number of live plants per acre prior to the occurrence of an insurable cause of loss.
Planted acreage. In addition to the definition contained in ;section 1 of the Basic Provisions, for each planting period, pepper seed or transplants must initially be planted in rows, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Planting period. The period of time designated in the actuarial documents in which the peppers must be planted to be considered fall, winter or spring-planted peppers.
Potential production. The number of boxes of mature bell peppers that the pepper plants will or would have produced per acre by the end of the insurance period, assuming normal growing conditions and practices.
Practical to replant. In lieu of the definition of “Practical to replant” contained in section 1 of the Basic Provisions (§ 457.8), practical to replant is defined as our determination, after loss or damage to the insured crop, based on factors, including but not limited to moisture availability, condition of the field, marketing windows, and time to crop maturity, that replanting to the insured crop will allow the crop to attain maturity prior to the calendar date for the end of the insurance period (inability to obtain plants or seed will not be considered when determining if it is practical to replant).
Row width. The widest distance from the center of one row of plants to the center of an adjacent row of plants.
Tropical depression. A system identified by the U.S. Weather Service as a tropical depression, and for the period of time so designated, including tropical storms, gales, and hurricanes.
(a) A basic unit, as defined in section 1 of the Basic Provisions, will also be divided into additional basic units by planting period.
(b) Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
(a) In addition to the requirements of section 3 (Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities) of the Basic Provisions (§ 457.8), you may select only one coverage level (and the corresponding amount of insurance designated in the actuarial documents for the applicable planting period and practice) for all the peppers in the county insured under this policy.
(b) The amount of insurance you choose for each planting period and practice must have the same percentage relationship to the maximum price offered by us for each planting period and practice. For example, if you choose 100 percent of the maximum amount of insurance for a specific planting period and practice, you must also choose 100 percent of the maximum amount of insurance for all other planting periods and practices.
(c) The production reporting requirements contained in section 3 (Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities) of the Basic Provisions (§ 457.8) do not apply to fresh market peppers.
(d) The amounts of insurance per acre are progressive by stages as follows:
| Stage | Percent of the amount of insurance per acre that you selected | Length of time if direct-seeded | Length of time if transplanted |
|---|---|---|---|
| 1 | 65 | From planting through the 74th day after planting | From planting through the 44th day after planting. |
| 2 | 85 | From the 75th day after planting until the beginning of stage 3 | From the 45th day after planting until the beginning of stage 3. |
| 3 | 100 | Begins the earlier of 110 days after planting, or the beginning of harvest | Begins the earlier of 80 days after planting, or the beginning of harvest. |
(e) Any acreage of peppers damaged in the first or second stage to the extent that the majority of producers in the area would not normally further care for it, will be deemed to have been destroyed. The indemnity payable for such acreage will be based on the stage the plants had achieved when the damage occurred.
In accordance with section 4 (Contract Changes) of the Basic Provisions (§ 457.8), the contract change date is April 30 preceding the cancellation date.
In accordance with section 2 (Life of Policy, Cancellation, and Termination) of the Basic Provisions (§ 457.8), the cancellation and termination dates are July 31.
In addition to the requirements of section 6 (Report of Acreage) of the Basic Provisions (§ 457.8), you must report on or before the acreage reporting date contained in the Special Provisions for each planting period:
(a) All the acreage of peppers in the county insured under this policy in which you have a share;
(b) The dates the acreage was planted within each planting period; and
(c) The row width.
In lieu of the premium amount determinations contained in section 7 (Annual Premium and Administrative Fees) of the Basic Provisions (§ 457.8), the annual premium amount for each cultural practice (for example, fall direct-seeded irrigated) is determined by multiplying the third stage amount of insurance per acre by the premium rate for the cultural practice as established in the actuarial documents, by the insured acreage, by your share at the time coverage begins, and by any applicable premium adjustment factors contained in the actuarial documents.
In accordance with section 8 (Insured Crop) of the Basic Provisions (§ 457.8), the crop insured will be all the bell peppers in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are:
(1) Planted to be harvested and sold as mature fresh market bell peppers;
(2) Planted within the planting periods designated in the actuarial documents;
(3) Grown under an irrigated practice;
(4) Grown on acreage covered by plastic mulch except where the Special Provisions allow otherwise;
(5) Grown by a person who in at least one of the three previous crop years:
(i) Grew bell peppers for commercial sale; or
(ii) Participated in managing a bell pepper farming operation;
(c) That are not:
(1) Interplanted with another crop;
(2) Planted into an established grass or legume;
(3) Pimento peppers; or
(4) Grown for direct marketing.
(a) In lieu of the provisions of section 9 (Insurable Acreage) of the Basic Provisions (§ 457.8), that prohibit insurance attaching if a crop has not been planted in at least one of the three previous crop years, we will insure newly cleared land or former pasture land planted to fresh market peppers.
(b) In addition to the provisions of section 9 (Insurable Acreage) of the Basic Provisions (§ 457.8):
(1) You must replant any acreage of peppers damaged during the planting period in which initial planting took place whenever less than 50 percent of the plant stand remains: and
(i) It is practical to replant;
(ii) If, at the time the crop was damaged, the final day of the planting period has not passed; and
(iii) The damage occurs within 30 days of transplanting or 60 days of direct-seeding.
(2) Whenever peppers initially are planted during the fall or winter planting periods and the conditions specified in sections 9(b)(1) (ii) and (iii) are not satisfied, you may elect:
(i) To replant such acreage and collect any replant payment due as specified in section 12. The initial planting period coverage will continue for such replanted acreage.
(ii) Not to replant such acreage and receive an indemnity based on the stage of growth the plants had attained at the time of damage. However, such an election will result in the acreage being uninsurable in the subsequent planting period.
(3) We will not insure any acreage on which peppers (except for replanted peppers in accordance with sections 9(b)(1) and (2)), tomatoes, eggplants, or tobacco have been grown and the soil was not fumigated or otherwise properly treated before planting peppers.
In lieu of the provisions of section 11 (Insurance Period) of the Basic Provisions (§ 457.8), coverage begins on each unit or part of a unit the later of the date we accept your application, or when the peppers are planted in each planting period. Coverage ends at the earliest of:
(a) Total destruction of the peppers on the unit;
(b) Abandonment of the peppers on the unit;
(c) The date harvest should have started on the unit on any acreage which will not be harvested;
(d) Final adjustment of a loss on the unit;
(e) Final harvest; or
(f) The calendar date for the end of the insurance period as follows:
(1) 165 days after the date of direct-seeding or replanting with seed; and
(2) 150 days after the date of transplanting or replanting with transplants.
(a) In accordance with the provisions of section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Excess rain;
(2) Fire;
(3) Freeze;
(4) Hail;
(5) Tornado;
(6) Tropical depression; or
(7) Failure of the irrigation water supply, if caused by an insured cause of loss that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 (Causes of Loss) of the Basic Provisions (§ 457.8), we will not insure against any loss of production due to:
(1) Disease or insect infestation, unless no effective control measure exists for such disease or insect infestation; or
(2) Failure to market the peppers, unless such failure is due to actual physical damage caused by an insured cause of loss that occurs during the insurance period.
(a) In accordance with section 13 (Replanting Payment) of the Basic Provisions (§ 457.8), a replanting payment is allowed if, due to an insured cause of loss, more than 50 percent of the plant stand will not produce peppers and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be the lesser of your actual cost of replanting or the result obtained by multiplying the per acre replanting payment amount contained in the Special Provisions by your insured share.
(c) In lieu of the provisions contained in section 13 (Replanting Payment) of the Basic Provisions (§ 457.8), that limit a replanting payment to one each crop year, only one replanting payment will be made for acreage planted during each planting period within the crop year.
In addition to the requirements contained in section 14 (Duties in the Event of Damage or Loss) of the Basic Provisions (§ 457.8), if you intend to claim an indemnity on any unit you also must give us notice not later than 72 hours after the earliest of:
(a) The time you discontinue harvest of any acreage on the unit;
(b) The date harvest normally would start if any acreage on the unit will not be harvested; or
(c) The calendar date for the end of the insurance period.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage in each stage by the amount of insurance per acre for the final stage;
(2) Multiplying each result in section 14(b)(1) by the percentage for the applicable stage (see section 3(d));
(3) Total the results of section 14(b)(2);
(4) Subtracting either of the following values from the result of section 14(b)(3):
(i) For other than catastrophic risk protection coverage, the total value of production to be counted (see section 14(c)); or
(ii) For catastrophic risk protection coverage, the result of multiplying the total value of production to be counted (see section 14(c)) by:
(A) Sixty percent for the 1998 crop year; or
(B) Fifty-five percent for 1999 and subsequent crop years; and
(5) Multiplying the result of section 14(b)(4) by your share.
(c) The total value of production to count from all insurable acreage on the unit will include:
(1) Not less than the amount of insurance per acre for the stage for any acreage:
(i) That is abandoned;
(ii) Put to another use without our consent;
(iii) That is damaged solely by uninsured causes; or
(iv) For which you fail to provide acceptable production records;
(2) The value of the following appraised production will not be less than the dollar amount obtained by multiplying the number of boxes of appraised peppers by the minimum value per box shown in the actuarial documents for the planting period:
(i) Potential production on any acreage that has not been harvested the third time;
(ii) Unharvested mature bell peppers (unharvested production that is damaged or defective due to insurable causes and is not marketable will not be counted as production to count);
(iii) Production lost due to uninsured causes; and
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) We may require you to continue to care for the crop so that a subsequent appraisal may be made or the crop harvested to determine actual production (If we require you to continue to care for the crop and you do not do so, the original appraisal will be used); or
(B) You may elect to continue to care for the crop, in which case the amount of production to count for the acreage will be the harvested production, or our reappraisal if the crop is not harvested.
(3) The total value of all harvested production from the insurable acreage will be the dollar amount obtained by subtracting the allowable cost contained in the actuarial documents from the price received for each box of peppers (this result may not be less than the minimum value shown in the actuarial documents for any box of peppers), and multiplying this result by the number of boxes of peppers harvested. Harvested production that is damaged or defective due to insurable causes and is not marketable, will not be counted as production to count.
The late and prevented planting provisions of the Basic Provisions are not applicable.
(a) The provisions of this option are continuous and will be attached to and made a part of your insurance policy, if:
(1) You elect either Option I or Option II of the Minimum Value Option on your application, or on a form approved by us, on or before the sales closing date for the initial crop year in which you wish to insure fresh market peppers under this option, and pay the additional premium indicated in the actuarial documents for this optional coverage; and
(2) You have not elected coverage under the Catastrophic Risk Protection Endorsement.
(b) In lieu of the provisions contained in section 14(c)(3), the total value of harvested production will be determined as follows:
(1) If you selected Option I of the Minimum Value Option, the total value of harvested production will be as follows:
(i) For sold production, the dollar amount obtained by subtracting the allowable cost contained in the actuarial documents from the price received for each box of peppers (this result may not be less than the minimum value option price contained in the actuarial documents for any box of peppers), and multiplying this result by the number of boxes of peppers sold; and
(ii) For marketable production that is not sold, the dollar amount obtained by multiplying the number of boxes of such peppers on the unit by the minimum value shown in the actuarial documents for the planting period (harvested production that is damaged or defective due to insurable causes and is not marketable will not be counted as production).
(2) If you selected Option II of the Minimum Value Option, the total value of harvested production will be as provided in section 16(b)(1), except that the dollar amount specified in section 16(b)(1)(i) may not be less than zero.
(c) This option may be canceled by either you or us for any succeeding crop year by giving written notice on or before the cancellation date preceding the crop year for which the cancellation of this option is to be effective.
§ 457.149 Table grape crop insurance provisions.
The Table Grape Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
For:
For both FCIC and reinsured policies:
Graft. To unite a shoot or bud (scion) with a rootstock or an existing vine in accordance with recommended practices to form a living union.
Harvest. Removing the mature grapes from the vines either by hand or machine.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Lug.
(1) Twenty (20) pounds of table grapes in the Coachella Valley, California district, and all other States.
(2) Twenty-one (21) pounds in all other California districts.
(3) Or as otherwise specified in the Special Provisions.
Set out. Physically planting the grape plants in the vineyard.
Table grapes. Grapes that are grown for commercial sale for human consumption as fresh fruit on acreage where the cultural practices to produce fresh marketable grapes are carried out.
Type. A category of grapes (one or more varieties) identified as a type in the Special Provisions.
USDA grade standard. (1) United States standard used to determine the minimum quality grade will be:
(i) The United States Standards for Grades of Table Grapes (European or Vinifera Type);
(ii) The United States Standards for Grades of American (Eastern Type Bunch Grapes); and
(iii) The United States Standards for Grades of Muscadine (Vitis rotundifolia) Grapes.
(2) The quantity and number of samples required will be determined in accordance with procedure issued by FCIC or as provided on the Special Provisions of Insurance.
Variety. A kind of grape that is distinguished from any other by unique characteristics such as, but not limited to, size, color, skin thickness, acidity, flavors and aromas. In Arizona and California each variety is identified as a separate type in the Special Provisions except for type 095 (other varieties). Type 095 is used to designate varieties not listed as a separate type.
(a) In Arizona and California only:
(1) A basic unit as defined in section 1 of the Basic Provisions will be divided into additional basic units by each table grape variety that you insure; and
(2) Provisions in the Basic Provisions that provide for optional units by section, section equivalent, or FSA farm number and by irrigated and non-irrigated practices are not applicable. Unless otherwise allowed by written agreement, optional units may only be established if each optional unit is located on non-contiguous land or grown and insured under an organic farming practice.
(b) In all states except Arizona and California, in addition to, or instead of, establishing optional units by section, section equivalent, or FSA farm number and by irrigated and non-irrigated acreage and for acreage grown and insured under an organic farming practice as provided in the unit division provisions contained in the Basic Provisions, a separate optional unit may be established if each optional unit:
(1) Is located on non-contiguous land; or
(2) Consists of a separate type when separate types are specified in the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) In Arizona and California, you may select only one coverage level and price election for each table grape variety you elect to insure in the county.
(b) In all states except Arizona and California, you may select only one coverage level and price election for each table grape type in the county as specified in the Special Provisions. The coverage level you choose for each table grape type is not required to have the same percentage relationship. The price election you choose for each type is not required to have the same percentage relationship to the maximum price election offered by us for each type. For example, if you choose 75 percent coverage level and 100 percent of the maximum price election for one type, you may choose 65 percent coverage level and 75 percent of the maximum price election for another type. If you elect the Catastrophic Risk Protection (CAT) level of insurance for any grape type, the CAT level of coverage will be applicable to all insured grape acreage in the county.
(c) In all states except Arizona and California, if you acquire a share in any grape acreage after you submit your application, such acreage is insurable under the terms of the policy and you did not include the grape type on your application, we will assign the following:
(1) A coverage level equal to the lowest coverage level you selected for any other grape type: and
(2) A price election percentage equal to the type with the lowest coverage level you selected, if you elected additional coverage; or 55 percent of the maximum price election, if you elected CAT.
(d) You must report by the production reporting date designated in section 3 of the Basic Provisions, by type or variety if applicable:
(1) Any damage, removal of bearing vines, change in practices or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing vines on insurable and uninsurable acreage;
(3) The age of the vines and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with another perennial crop, and any time the planting pattern of such acreage is changed:
(i) The age of the interplanted crop, and the table grape type or variety, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your approved yield.
(e) We will reduce the yield used to establish your production guarantee, based on our estimate of the effect on yield potential of any of the items listed in section 3(d)(1) through (4). If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce your production guarantee at any time we become aware of the circumstance.
(f) Your request to increase the coverage level or price election percentage will not be accepted if a cause of loss that could or would reduce the yield of the insured crop is evident when your request is made.
In accordance with section 4 of the Basic Provisions, the contract change date is October 31 preceding the cancellation date for Arizona and California and August 31 preceding the cancellation date for all other states.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are January 31 in Arizona and California, and November 20 for all other states.
In addition to the requirements of section 6 of the Basic Provisions, you must report your acreage:
(a) In Arizona and California, by each table grape variety you insure; or
(b) In all other states, by each table grape type.
In accordance with section 8 of the Basic Provisions, the crop insured will be any insurable variety of table grapes that you elect to insure in Arizona and California, or in all other states all insurable types, in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for harvest as table grapes;
(c) That are adapted to the area;
(d) That are grown in a vineyard that, if inspected, is considered acceptable by us;
(e) That, after being set out or grafted, have reached the number of leaf years designated by the Special Provisions; and
(f) That have produced an average of at least 150 lugs of table grapes per acre in at least one of the three crop years immediately preceding the insured crop year, unless otherwise allowed by the Special Provisions.
In lieu of the provisions in section 9 of the Basic Provisions that prohibit insurance attaching to a crop planted with another crop, table grapes interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions
(1) For the year of application, coverage begins on February 1 in Arizona and California, and November 21 in all other states. Notwithstanding the previous sentence, if your application is received by us after January 12 but prior to February 1 in Arizona or California, or after November 1 but prior to November 21 in all other states, insurance will attach on the 20th day after your properly completed application is received in our local office, unless we inspect the acreage during the 20-day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the vineyard.
(2) For each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(3) If in accordance with the terms of the policy, your table grape policy is cancelled or terminated for any crop year after insurance attached for that crop year, but on or before the cancellation and termination dates, whichever is later, insurance will not be considered to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(4) The calendar date for the end of insurance period for each crop year is the date specified in the Special Provisions.
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) If you acquire an insurable share in any insurable acreage after coverage begins, but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable; insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period. Acreage acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage of table grapes on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium will be due or indemnity paid for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the vineyard;
(3) Insects, except as excluded in 10(b)(1), but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to:
(1) Phylloxera, regardless of cause; or
(2) Inability to market the table grapes for any reason other than the actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
In addition to the requirements of section 14 of the Basic Provisions, the following will apply:
(a) You must notify us within 3 days after the date harvest should have started if the crop will not be harvested.
(b) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(c) If the crop has been damaged during the growing season and you previously gave notice in accordance with section 14 of the Basic Provisions, you must also provide notice at least 15 days prior to the beginning of harvest if you intend to claim an indemnity as a result of the damage previously reported. You must not destroy the damaged crop until the earlier of 15 days from the date you gave notice of loss, or our written consent to do so. If you fail to meet the requirements of this section all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee;
(2) Multiplying each result in section 12(b)(1) by the respective price election you selected for each type or variety;
(3) Totaling the results in section 12(b)(2);
(4) Multiplying the total production to count of each type or variety, if applicable, (see section 12(c)) by the respective price election you selected;
(5) Totaling the results in section 12(b)(4);
(6) Subtracting the result of section 12(b)(5) from the result in section 12(b)(3); and
(7) Multiplying the result of section 12(b)(6) by your share.
(c) The total production to count (in lugs) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the requirements in section 11(b);
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production that meets, or would meet if properly handled, the state quality standards, if specified in the Special Provisions, or the appropriate USDA grade standard (if no state standard is specified); and
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested production from insurable acreage regardless of condition or disposition. The quantity of production to count for table grape production damaged by insurable causes within the insurance period that is marketed for any use other than table grapes will be determined by multiplying the greater of (1) the value of the table grapes per ton or (2) $50, by the number of tons and dividing that result by the highest price election available for the insured unit. This result will be the number of lugs to count.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.150 Dry bean crop insurance provisions.
The Dry Bean Crop Insurance Provisions for the 2022 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
Actual value. The dollar value received, or that could be received, for contract seed beans under a seed bean processor contract if the contract seed bean production is properly handled in accordance with the requirements of such contract.
Base price. The price per pound (excluding any discounts or incentives that may apply) that is stated in the seed bean processor contract and that will be paid to the producer for at least 50 percent of the total production under contract with the seed company.
Beans. Dry beans and contract seed beans.
Combining. A harvesting process that uses a machine to separate the beans from the pods and other vegetative matter and place the beans into a temporary storage receptacle.
Contract seed beans. Dry beans grown under the terms of a seed bean processor contract for the purpose of producing seed to be used for producing dry beans or vegetable beans in a future crop year.
Dry beans. The crop defined by The United States Standards for Beans excluding contract seed beans.
Harvest. Combining the beans. Beans which are swathed or knifed prior to combining are not considered harvested.
Local market price. The cash price per hundredweight for the U.S. No. 2 grade of dry beans of the insured type offered by buyers in the area in which you normally market the dry beans. Moisture content and factors not associated with grading under the United States Standards for Beans will not be considered in establishing this price.
Net price. The dollar value of dry bean production received, or that could have been received, after reductions in value due to insurable causes of loss.
Pick. The percentage, on a weight basis, of defects including splits, damaged (including discolored) beans, contrasting types, and foreign material that remains in the dry beans after dockage has been removed by the proper use of screens or sieves.
Planted acreage. In addition to the definition contained in the Basic Provisions, beans must initially be planted in rows far enough apart to permit mechanical cultivation, unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Practical to replant. In lieu of the definition of “Practical to replant” contained in section 1 of the Basic Provisions (§ 457.8), practical to replant is defined as our determination, after loss or damage to the insured crop, based on factors, including but not limited to moisture availability, condition of the field, time to crop maturity, and marketing window, that replanting the insured crop will allow the crop to attain maturity prior to the calendar date for the end of the insurance period. It will not be considered practical to replant after the end of the late planting period unless replanting is generally occurring in the area. For contract seed beans, it will not be considered practical to replant unless production from the replanted acreage can be delivered under the terms of the seed bean processor contract or the seed company agrees to accept such production.
Seed bean processor contract. A written agreement between the contract seed bean producer and the seed company, containing at a minimum:
(a) The contract seed bean producer’s promise to plant and grow one or more specific varieties of contract seed beans, and deliver the production from those varieties to the seed company;
(b) The seed company’s promise to purchase all the production stated in the contract; and
(c) A base price, or a method to determine such price based on published independent information, that will be paid to the contract seed bean producer for the production stated in the contract.
Seed company. Any business enterprise regularly engaged in the processing of seed beans, that possesses all licenses and permits for marketing seed beans required by the State in which it operates, and that possesses or has contracted for facilities, with enough drying, screening and bagging or packaging equipment to accept and process the seed beans within a reasonable amount of time after harvest.
Swathing or knifing. Severance of the bean plant from the ground, including the pods and beans, and placing them into windrows.
Type. A category of beans identified as a type in the Special Provisions or insured by written agreement.
(a) In addition to the definition of basic unit in section 1 of the Basic Provisions, all acreage of contract seed beans qualifies as a separate basic unit. For production based seed bean processor contracts, the basic unit will consist of all the acreage needed to produce the amount of production under contract, based on the actual production history of the acreage. For acreage based seed bean processor contracts, the basic unit will consist of all acreage specified in the contract.
(b) In addition to enterprise units provided in section 34(a) of the Basic Provisions, you may elect separate enterprise units by type, as provided in this section, if allowed by the actuarial documents. If you elect enterprise units by type, you may not elect enterprise or optional units by irrigation practices.
(1) You may elect separate enterprise units by type unless otherwise specified in the Special Provisions. For example, if you have Great Northern and Pinto types, you may elect one enterprise unit for the Great Northern type or one enterprise unit for the Pinto type, or separate enterprise units for both types. Any acreage which is not reported and insured as an enterprise unit will be insured as a basic unit or optional unit if requirements are met. For example, if you only have Great Northern and Pinto types, you may have an enterprise unit for the Great Northern type acreage and basic or optional units for the Pinto type acreage.
(2) You must separately meet the requirements in section 34(a)(4) of the Basic Provisions for each enterprise unit by type.
(3) If you elected separate enterprise units for multiple types and we discover enterprise unit qualifications are not separately met for all types in which you elected enterprise units and such discovery is made:
(i) On or before the acreage reporting date, you may elect to insure:
(A) All types in which you elected an enterprise unit for meeting the requirements in section 34(a)(4) as separate enterprise units, and basic or optional units for any acreage that is not reported and insured as an enterprise unit, whichever you report on your acreage report and for which you qualify;
(B) One enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4); or
(C) Basic or optional units for all acreage of the crop in the county, whichever you report on your acreage report and for which you qualify; or
(ii) At any time after the acreage reporting date, your unit structure will be one enterprise unit for all acreage of the crop in the county provided you meet the requirements in section 34(a)(4). Otherwise, we will assign the basic unit structure for all acreage of the crop in the county.
(4) If you elected an enterprise unit for only one type and we discover you do not qualify for an enterprise unit for that type and such discovery is made:
(i) On or before the acreage reporting date, your unit division for all acreage of the crop in the county will be based on basic or optional units, whichever you report on your acreage report and for which you qualify; or
(ii) At any time after the acreage reporting date, we will assign the basic unit structure for all acreage of the crop in the county.
(c) In addition to, or instead of, establishing optional units as provided in section 34(c) in the Basic Provisions, a separate optional unit may be established for each bean type (designated in actuarial documents and including any type insured by written agreement).
(d) Contract seed beans may qualify for a separate enterprise or optional unit only if the seed bean processor contract specifies the number of acres under contract and contract seed beans are listed as a separate type in the actuarial documents. Contract seed beans produced under a seed bean processor contract that specifies only an amount of production are not eligible for a separate enterprise or optional unit.
(a) In addition to the requirements of section 3(b) of the Basic Provisions (§ 457.8), you may select only one price election for all the dry beans in the county insured under this policy unless the Special Provisions provide different price elections by type, in which case you may select one price election for each dry bean type designated in the Special Provisions. The price elections you choose for each type are not required to have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you may also choose 75 percent of the maximum price election for another type.
(b) For contract seed beans only, the dollar amount of insurance is obtained by multiplying the production guarantee per acre for each variety in the unit by the insured acreage of that variety, times the applicable base price, and times the price election percentage you selected. The total of these results will be the amount of insurance for contract seed beans in the unit.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are:
| State and county | Cancellation and termination dates |
|---|---|
| California | February 28. |
| All other States | March 15. |
For contract seed beans only, in addition to the requirements of section 6 of the Basic Provisions (§ 457.8), you must submit a copy of the seed bean processor contract on or before the acreage reporting date.
(a) In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the beans in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvest as:
(i) Dry beans; or
(ii) If applicable, contract seed beans, if the seed bean processor contract is executed on or before the acreage reporting date; and
(3) That are not (unless allowed by the Special Provisions or by written agreement):
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume.
(b) For contract seed beans only:
(1) An instrument in the form of a “lease” under which you retain control of the acreage on which the insured crop is grown and that provides for delivery of the crop under substantially the same terms as a seed bean processor contract may be treated as a contract under which you have an insurable interest in the crop; and
(2) We will not insure any acreage of contract seed beans produced by a seed company.
(c) In addition to the types of dry beans designated in the Special Provisions, we will insure other types if:
(1) The type you intend to plant has been demonstrated to be adapted to the area. Evidence of adaptability must include:
(i) Results of test plots for 2 years and recommendations by a university or seed company; or
(ii) Two years of production reports that indicate your experience producing the type in your production area;
(2) You submit on or before the sales closing date your production reports and prices received, or the test plot results, and evidence of market potential, including the price buyers are willing to pay for the type; and
(3) Both parties (you and us) enter into a written agreement allowing insurance on the type in accordance with section 18 of the Basic Provisions.
(d) Any acreage of beans that is destroyed and replanted to a different insurable type of beans will be considered insured acreage in accordance with section 11.
In addition to the provisions of section 9 of the Basic Provisions (§ 457.8):
(a) We will not insure any acreage that does not meet the rotation requirements contained in the Special Provisions; or
(b) Any acreage of the insured crop damaged before the final planting date, to the extent that the majority of growers in the area would normally not further care for the crop, must be replanted unless we agree that replanting is not practical. We will not require you to replant if it is not practical to replant to the same type of beans as originally planted.
In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8), the calendar date for the end of the insurance period is the date immediately following planting as follows:
(a) October 15 in Oklahoma, New Mexico, and Texas;
(b) November 15 in California; and
(c) October 31 in all other States.
In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(a) In accordance with section 13 of the Basic Provisions (§ 457.8), a replanting payment is allowed if the bean crop is damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be the lesser of 10 percent of the production guarantee for the type to be replanted or 120 pounds multiplied by your price election for the type to be replanted and by your insured share.
(c) When beans are replanted using a practice that is uninsurable as an original planting, the liability for the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
(d) The guarantee and premium for acreage replanted to a different insurable type will be based on the replanted type and will be calculated in accordance with sections 3 and 7 of the Basic Provisions (§ 457.8) and section 3 of these Crop Provisions.
In accordance with the requirements of section 14 of the Basic Provisions (§ 457.8), representative samples of the unharvested crop must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be harvested or destroyed until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the unit.
(b) In the event of loss or damage to your bean crop covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage of each dry bean type by its respective production guarantee;
(2) Multiplying each result in section 13(b)(1) by the respective price election for each insured type;
(3) Totaling the results in section 13(b)(2);
(4) Multiplying the insured acreage of each contract seed bean type by its respective production guarantee;
(5) Multiplying each result in section 13(b)(4) by the applicable base price;
(6) Multiplying each result in section 13(b)(5) by your selected price election percentage;
(7) Totaling the results in section 13(b)(6);
(8) Totaling the results in section 13(b)(3) and section 13(b)(6);
(9) Multiplying the total production to be counted of each dry bean type if applicable, (see section 13(d)) by the respective price election;
(10) Totaling the value of all contract seed bean production (see section 13(c));
(11) Totaling the results in section 13(b)(9) and section 13(b)(10);
(12) Subtracting the total in section 13(b)(11) from the total in section 13(b)(8); and
(13) Multiplying the result by your share.
(c) The value of contract seed bean production to count for each type in the unit will be determined as follows:
(1) For production meeting the minimum quality requirements contained in the seed bean processor contract and for production that does not meet such requirements due to uninsured causes:
(i) Multiplying the actual value or base price per pound, whichever is greater, by the price election percentage you selected; and
(ii) Multiplying the result by the number of pounds of such production.
(2) For production not meeting the minimum quality requirements contained in the seed bean processor contract due to insurable causes:
(i) Multiplying the actual value by the price election percentage you selected; and
(ii) Multiplying the result by the number of pounds of such production.
(d) The total bean production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production of dry beans may be adjusted for quality deficiencies and excess moisture in accordance with section 13(e)); and
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(e) Mature dry bean production to count may be adjusted for excess moisture and quality deficiencies. If moisture adjustment is applicable, it will be made prior to any adjustment for quality. Adjustment for excess moisture and quality deficiencies will not be applicable to contract seed beans.
(1) Production will be reduced by 0.12 percent for each 0.1 percentage point of moisture in excess of 18 percent. We may obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) A pick is designated in the Special Provisions and the pick of the damaged production exceeds this designation; or
(ii) A pick is not designated in the Special Provisions and deficiencies in quality, in accordance with the United States Standards for Beans, result in dry beans not meeting the grade requirements for U.S. No. 2 (grades U.S. No. 3 or worse) because the beans are damaged or badly damaged; or
(iii) Substances or conditions are present that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a cause of loss against which insurance is provided under these crop provisions and which occurs within the insurance period;
(ii) The deficiencies, substances, or conditions result in a net price for the damaged production that is less than the local market price;
(iii) All determinations of these deficiencies, substances, or conditions are made using samples of the production obtained by us or by a disinterested third party approved by us;
(iv) With regard to deficiencies in quality (except test weight, which may be determined by our loss adjuster), the samples are analyzed by:
(A) A grader licensed under the United States Agricultural Marketing Act or the United States Warehouse Act;
(B) A grader licensed under State law and employed by a warehouse operator who has a storage agreement with the Commodity Credit Corporation; or
(C) A grader not licensed under State law, but who is employed by a warehouse operator who has a commodity storage agreement with the Commodity Credit Corporation and is in compliance with State law regarding warehouses; and
(v) With regard to substances or conditions injurious to human or animal health, the samples are analyzed by a laboratory approved by us.
(4) Dry bean production that is eligible for quality adjustment, as specified in sections 13(e) (2) and (3), will be reduced:
(i) If a conversion factor is designated by the Special Provisions, by multiplying the number of pounds of eligible production by the conversion factor designated in the Special Provisions for the applicable grade or pick; or
(ii) If a conversion factor is not designated by the Special Provisions as follows:
(A) The market price of the qualifying damaged production and the local market price will be determined on the earlier of the date such quality adjusted production is sold or the date of final inspection for the unit. If a local market price is not available for the insured crop year, the current years’ maximum price election available for the applicable type will be used. The price for the qualifying damaged production will be the market price for the local area to the extent feasible. We may obtain prices from any buyer of our choice. If we obtain prices from one or more buyers located outside your local market area, we will reduce such prices by the additional costs required to deliver the dry beans to those buyers. Discounts used to establish the net price of the damaged production will be limited to those that are usual, customary, and reasonable. The price of the damaged production will not be reduced for:
(1) Moisture content;
(2) Damage due to uninsured causes; or
(3) Drying, handling, processing, including trading tare for grade to obtain a higher grade and price, or any other costs associated with normal harvesting, handling, and marketing of the dry beans; except, if the price of the damaged production can be increased by conditioning, we may reduce the price of the production after it has been conditioned by the cost of conditioning but not lower than the value of the production before conditioning;
(B) The value per pound of the damaged or conditioned production will be divided by the local market price to determine the quality adjustment factor; and
(C) The number of pounds remaining after any reduction due to excessive moisture (the moisture-adjusted gross pounds (if appropriate)) of the damaged or conditioned production will then be multiplied by the quality adjustment factor to determine the net production to count.
(f) Any production harvested from plants growing in the insured crop may be counted as production of the insured crop on a weight basis.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.151 Forage seeding crop insurance provisions.
The Forage Seeding Crop Insurance Provisions for 2022 and succeeding crop years are as follows:
Adequate stand. The number shown in the Special Provisions, representing:
(a) For forage containing 60 percent or more alfalfa, the minimum required number of live alfalfa stems per square foot that are two inches or greater in height; or
(b) For forage containing less than 60 percent alfalfa, the normal planting density.
Amount of insurance. The dollar amount of insurance per acre obtained by multiplying the reference maximum dollar amount shown in the actuarial documents by the coverage level percentage you elect.
Companion crop. A crop seeded into the same acreage as another crop, that is intended to be harvested separately, and that is planted to improve growing conditions for the crop with which it is grown.
Crop year. The period within which the planting is or normally would become established and shall be designated by the calendar year in which the planting is made for spring planted acreage and the next succeeding calendar year for fall planted acreage.
Fall planted. A forage crop seeded after June 30, except when specified in the Special Provisions.
Forage. Planted perennial alfalfa, perennial red clover, perennial grasses, or a mixture thereof, or other species, as shown in the actuarial documents.
Good farming practices. In lieu of the definition in the Basic Provisions, the cultural practices generally in use in the county for the crop to make normal progress toward maturity and produce an adequate stand, and which are those generally recognized by agricultural experts or organic agricultural experts as compatible with agronomic and weather conditions for the area.
Harvest. Severance of the forage plant from its roots. Acreage that is grazed will not be considered harvested.
Normal planting density. The minimum number of live plants per square foot as shown in the Special Provisions.
Planted acreage. In addition to the definition in the Basic Provisions, land on which seed is initially spread onto the soil surface by any method and subsequently is mechanically incorporated into the soil in a timely manner and at the proper depth will be considered planted, unless otherwise provided by the Special Provisions, actuarial documents, or written agreement.
Replanting. In addition to the definition in the Basic Provisions, placing new seed into an existing damaged stand, using a reduced seeding rate from the original seeding rate, will not be considered replanting.
Sales closing date. In lieu of the definition contained in the Basic Provisions, a date contained in the Special Provisions by which an application must be filed and by which you may change your crop insurance coverage for a crop year. If the Special Provisions provide a sales closing date for both fall planted and spring planted practices for the insured crop and you plant any insurable fall planted acreage, you may not change your crop insurance coverage after the sales closing date for the fall planted practice.
Spring planted. A forage crop seeded before July 1, except when specified in the Special Provisions.
A basic unit, as defined in section 1 of the Basic Provisions, will also be divided into additional basic units by spring planted and fall planted acreage.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may only select one coverage level and the corresponding amount of insurance designated in the actuarial documents for the applicable type and practice for all the forage seeding in the county that is insured under this policy. The amount of insurance you choose for each type and practice must have the same percentage relationship to the maximum amount of insurance offered by us for each type and practice. For example, if you choose 100 percent of the maximum amount of insurance for a specific type and practice, you must also choose 100 percent of the maximum amount of insurance for all other types and practices.
(b) In counties with both fall and spring sales closing dates for the insured crop:
(1) If you do not have any insurable fall planted acreage, you may purchase or revise your coverage for your spring planted acreage until the spring sales closing date;
(2) In accordance with section 3(a), if you insured your fall planted acreage, you must insure your spring planted acreage with the same coverage as the fall planted acreage; and
(3) If you did not insure your fall planted acreage, you are not eligible to purchase insurance for the spring planted acreage.
(c) The production reporting requirements contained in section 3 of the Basic Provisions, do not apply to forage seeding.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date for counties with a March 15 cancellation date and April 30 preceding the cancellation date for all other counties.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State | Cancellation | Termination |
|---|---|---|
| March 15 | March 15. | |
| July 31 | September 30. |
In lieu of the provisions of section 6(a) of the Basic Provisions, a report of all insured acreage of forage seeding must be submitted on or before each forage seeding acreage reporting date specified in the Special Provisions.
In accordance with section 8 of the Basic Provisions, the crop insured will be all the forage in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is planted during the current crop year, or replanted during the calendar year following planting, to establish an adequate stand of forage;
(c) That is not grown with the intent to be grazed, or not grazed at any time during the insurance period; and
(d) That is not interplanted with another crop, except companion crops, unless allowed by the Special Provisions or by written agreement.
In addition to the provisions of section 9 of the Basic Provisions, unless otherwise specified in the Special Provisions, any acreage of the insured crop damaged before the spring final planting date, to the extent that such acreage has less than 75 percent of a normal planting density, must be replanted unless we agree that it is not practical to replant.
In lieu of the provisions of section 11 of the Basic Provisions regarding when insurance ends, forage seeding insurance will end at the earliest of:
(a) Total destruction of the insured crop on the unit;
(b) The initial harvest of the unit, if a late harvest date is not listed in the Special Provisions;
(c) The first harvest after the late harvest date, if a late harvest date is specified in the Special Provisions (You may harvest the crop as often as practical in accordance with good farming practices on or before the late harvest date);
(d) Final adjustment of a loss on a unit;
(e) Abandonment of the insured crop;
(f) The date grazing commences on the insured crop; or
(g) The end of insurance period date shown in the actuarial documents.
In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes that result in loss of, or failure to establish, an adequate stand that occurs during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period.
In lieu of the provisions contained in section 13 of the Basic Provisions:
(a) Unless otherwise specified in the Special Provisions, a replanting payment is allowed if:
(1) It is practical to replant;
(2) We give written consent to replant;
(3) In California, acreage planted to the insured crop is damaged by an insurable cause of loss occurring before the spring final planting date in the actuarial documents to the extent that less than 75 percent of the normal planting density remains, and the crop can reach maturity before the end of the insurance period;
(4) In all other states:
(i) The insured spring or fall planted acreage is damaged by an insurable cause of loss to the extent that less than 75 percent of the normal planting density remains;
(ii) If fall planted, the acreage is replanted the following spring by the spring final planting date; and
(iii) If spring planted, the original planting took place after the earliest planting date shown in the Special Provisions, and the acreage is replanted by the spring final planting date shown in the Special Provisions.
(b) The amount of the replanting payment will be equal to 50 percent of the amount of indemnity determined in accordance with section 13(a) unless otherwise specified in the Special Provisions.
(c) No replanting payment will be made on acreage for which one replanting payment has been allowed.
(d) If the information reported by you on the acreage report results in a lower premium than the actual premium determined to be due based on the acreage, share, practice, or type determined actually to have existed, the replanting payment will be reduced proportionately.
(a) In accordance with the requirements of section 14 of the Basic Provisions, the representative samples of the crop must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be harvested or destroyed until the earlier of our inspection or 15 days after tilling of the balance of the unit is completed.
(b) In addition to the requirements of section 14 of the Basic Provisions, you must give us written notice if, during the period before destroying the crop on any damaged fall planted acreage, you decide to replant the acreage by the spring final planting date.
In the event of loss or damage covered by this policy, we will settle your claim on any unit by:
(a) For each type and practice:
(1) Determining the value of all insured acreage by multiplying the number of insured acres by the dollar amount of insurance;
(2) Determining the value of the acreage with no insurable losses, by multiplying the dollar amount of insurance by the insured acreage that:
(i) Has at least 75 percent of an adequate stand;
(ii) Was abandoned or put to another use without our prior written consent;
(iii) Was damaged solely by an uninsured cause; or
(iv) Was harvested and not reseeded.
(3) Determining the value of the acreage with partial insurable losses, by multiplying the dollar amount of insurance by the number of insured acres that have a stand less than 75 percent but more than 55 percent of an adequate stand, by 50 percent (0.5);
(4) Adding the results in section 13(a)(2) and section 13(a)(3);
(5) Subtracting the results in section 13(a)(4) from the results in section 13(a)(1); and
(6) Multiplying the result in section 13(a)(3) by your share; and
(b) Totaling the results in section 13(a).
You also have a 100 percent share in 20 acres of type B forage in the unit, with an amount of insurance of $90 per acre. 10 acres had a remaining stand of 75 percent of an adequate stand or greater. 10 acres had a remaining stand less than 55 percent of an adequate stand.
Your indemnity would be calculated as follows:
1. 30 acres × $100 = $3,000 amount of insurance for type A; 20 acres × $90 = $1,800 amount of insurance for type B;
2. 10 acres with 75% of an adequate stand or greater × $100 = $1,000 for type A; 10 acres with 75% of an adequate stand or greater × $90 = $900 for type B;
3. 20 acres with less than 75% but greater than 55% of an adequate stand × $100 × 50 percent = $1,000 for type A; 0 acres with less than 75% but greater than 55% of an adequate stand × $90 × 50 percent = $0 for type B;
4. $1,000 + $1,000 = $2,000 reduction for type A; $900 + $0 = $900 reduction for type B;
5. $3,000 – $2,000 = $1,000 for type A; $1,800 – $900 = $900 for type B
6. $1,000 × 100 percent share = $1,000 for type A; $900 × 100 percent share = $900 for type B;
7. $1,000 + $900 = $1,900 total indemnity
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.152 Hybrid seed corn crop insurance provisions.
The Hybrid Seed Corn Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions, (§ 457.8) with (1) controlling (2), etc.
Adjusted yield. An amount determined by multiplying the county yield by the coverage level factor.
Amount of insurance per acre. A dollar amount determined by multiplying the adjusted yield by the price election you select and subtracting any minimum guaranteed payment, not to exceed the total compensation specified in the hybrid seed corn processor contract. If your hybrid seed corn processor contract contains a minimum guaranteed payment that is stated in bushels, we will convert that value to dollars by multiplying it by the price election you selected.
Approved yield. In lieu of the definition contained in the Basic Provisions, an amount FCIC determines to be representative of the yield that the female parent plants are expected to produce when grown under a specific production practice. FCIC will establish the approved yield based upon records provided by the seed company and other information it deems appropriate.
Bushel. Fifty-six pounds avoirdupois of shelled corn, 70 pound avoirdupois of ear corn, or the number of pounds determined under the seed company’s normal conversion chart when that chart is used to determine the approved yield and the claim for indemnity.
Certified seed test. A warm germination test performed on clean seed according to specifications of the “Rules for Testing Seeds” of the Association of Official Seed Analysts.
Commercial hybrid seed corn. The offspring produced by crossing a male and female parent plant, each having a different genetic character. This offspring is the product intended for use by an agricultural producer to produce a commercial field corn crop for grain.
County yield. An amount contained in the actuarial documents that is established by FCIC to represent the yield that a producer of hybrid seed corn would be expected to produce if the acreage had been planted to commercial field corn.
Coverage level factor. A factor contained in the Special Provisions to adjust the county yield for commercial field corn to reflect the higher value of hybrid seed corn.
Dollar value per bushel. An amount that determines the value of any seed production to count. It is determined by dividing the amount of insurance per acre by the result of multiplying the approved yield by the coverage level percentage, expressed as a decimal.
Female parent plants. Corn plants that are grown for the purpose of producing commercial hybrid seed corn and have had the stamens removed or are otherwise male sterile.
Field run. Commercial hybrid seed corn production before it has been dried, screened, or processed.
Good farming practices. In addition to the definition contained in the Basic Provisions, good farming practices include those practices required by the hybrid seed corn processor contract.
Harvest. Combining, threshing or picking ears from the female parent plants to obtain commercial hybrid seed corn.
Hybrid seed corn processor contract. An agreement executed between the hybrid seed corn crop producer and a seed company containing, at a minimum:
(a) The producer’s promise to plant and grow male and female parent plants, and to deliver all commercial hybrid seed corn produced from such plants to the seed company;
(b) The seed company’s promise to purchase the commercial hybrid seed corn produced by the producer; and
(c) Either a fixed price per unit of measure (bushels, hundredweight, etc.) of the commercial hybrid seed corn or a formula to determine the value of such seed. Any formula for establishing the value must be based on data provided by a public third party that establishes or provides pricing information to the general public, based on prices paid in the open market (e.g., commodity futures exchanges), to be acceptable for the purpose of this policy.
Inadequate germination. Germination of less than 80 percent of the commercial hybrid seed corn as determined by using a certified seed test.
Insurable interest. Your share of the financial loss that occurs in the event seed production is damaged by a cause of loss specified in section 10.
Local market price. The cash price offered by buyers for any production from the female parent plants that is not considered commercial hybrid seed corn under the terms of this policy.
Male parent plants. Corn plants grown for the purpose of pollinating female parent plants.
Minimum guaranteed payment. A minimum amount (usually stated in dollars or bushels) specified in your hybrid seed corn processor contract that will be paid or credited to you by the seed company regardless of the quantity of seed produced.
Non-seed production. Production that does not qualify as seed production because of inadequate germination.
Planted acreage. In addition to the definition contained in the Basic Provisions, the insured crop must be planted in rows wide enough to permit mechanical cultivation, unless otherwise provided by the Special Provisions or by written agreement.
Planting pattern. The arrangement of the rows of the male and female parent plants in a field. An example of a planting pattern is four consecutive rows of female parent plants followed by two consecutive rows of male parent plants.
Practical to replant. In addition to the definition contained in the Basic Provisions, practical to replant applies to either the female or male parent plant. It will not be considered practical to replant unless production from the replanted acreage can be delivered under the terms of the hybrid seed corn processor contract, or the seed company agrees that it will accept the production from the replanted acreage.
Prevented planting. In addition to the definition contained in the Basic Provisions, prevented planting applies to the female and male parent plants. The male parent plants must be planted in accordance with the requirements of the hybrid seed corn processor contract to be considered planted.
Sample. For the purpose of the certified seed test, at least 3 pounds of randomly selected field run shelled corn for each variety of commercial hybrid seed corn grown on the unit.
Seed company. A business enterprise that possesses all licenses for marketing commercial hybrid seed corn required by the state in which it is domiciled or operates, and which possesses facilities with enough storage and drying capacity to accept and process the insured crop within a reasonable amount of time after harvest. If the seed company is the insured, it must also be a corporation.
Seed production. All seed produced by female parent plants with a germination rate of at least 80 percent as determined by a certified seed test.
Shelled corn. Kernels that have been removed from the cob.
Variety. The name, number or code assigned to a specific genetic cross by the seed company or the Special Provisions for the insured crop in the county.
For any processor contract that stipulates the amount of production to be delivered:
(a) In lieu of the definition of “basic unit” contained in the Basic Provisions, a basic unit will consist of all acreage planted to the insured crop in the county that will be used to fulfill a hybrid seed corn processor contract;
(b) There will be no more than one basic unit for all production contracted with each processor contract;
(c) In accordance with section 12, all production from any basic unit in excess of the amount under contract will be included as production to count if such production is applied to any other basic unit for which the contracted amount has not been fulfilled; and
(d) Optional units will not be established.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may select only one price election for all the hybrid seed corn in the county insured under this policy unless the Special Provisions provide different price elections by variety, in which case you may select one price election for each hybrid seed corn variety designated in the Special Provisions. The price election you choose for each variety must have the same percentage relationship to the maximum price offered by us for each variety. For example, if you choose 100 percent of the maximum price election for one specific variety, you must also choose 100 percent of the maximum price election for all other varieties.
(b) The production reporting requirements contained in section 3 of the Basic Provisions are not applicable to this contract.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are March 15.
In addition to the requirements of section 6 of the Basic Provisions, you must:
(a) Report by type and variety, the location and insurable acreage of the insured crop;
(b) Report any acreage that is uninsured, including that portion of the total acreage occupied by male parent plants; and
(c) Certify that you have a hybrid seed corn processor contract and report the amount, if any, of any minimum guaranteed payment.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the female parent plants in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are grown under a hybrid seed corn processor contract executed before the acreage reporting date;
(3) That are planted for harvest as commercial hybrid seed corn in accordance with the requirements of the hybrid seed corn processor contract and the production management practices of the seed company; and
(4) That are not (unless allowed by the Special Provisions or by written agreement):
(i) Planted with a mixture of female and male parent seed in the same row;
(ii) Planted for any purpose other than for commercial hybrid seed corn;
(iii) Interplanted with another crop; or
(iv) Planted into an established grass or legume.
(b) An instrument in the form of a “lease” under which you retain control of the acreage on which the insured crop is grown and that provides for delivery of the crop under substantially the same terms as a hybrid seed corn processor contract will be treated as a contract under which you have an insurable interest in the crop.
(c) A commercial hybrid seed corn producer who is also a seed company may be able to insure the hybrid seed corn crop if the following requirements are met:
(1) The seed company has an insurable interest in the hybrid seed corn crop;
(2) Prior to the sales closing date, the Board of Directors of the seed company has executed and adopted a corporate resolution that contains the same terms as a hybrid seed corn processor contract. This corporate resolution will be considered a contract under this policy;
(3) Sales records for at least the previous years’ seed production must be provided to confirm that the seed company has produced and sold seed. If such records are not available, the crop may be insured under the Coarse Grains Crop Provisions with a written agreement; and
(4) Our inspection reveals that the storage and drying facilities satisfy the definition of a seed company.
(d) Any of the insured crop that is under contract with different seed companies may be insured under separate policies with different insurance providers provided all acreage of the insured crop in the county is insured. If you elect to insure the insured crop with different insurance providers, you agree to pay separate administrative fees for each insurance policy.
In addition to the provisions of section 9 of the Basic Provisions, we will not insure any acreage of the insured crop:
(a) Planted and occupied exclusively by male parent plants;
(b) Not in compliance with the rotation requirements contained in the Special Provisions or, if applicable, required by the hybrid seed corn processor contract; or
(c) If either the female or male parent plants are damaged before the final planting date and we determine that the insured crop is practical to replant but it is not replanted.
(a) In addition to the provisions of section 11 of the Basic Provisions, insurance attaches upon completion of planting of:
(1) The female parent plant seed on or before the final planting date designated in the Special Provisions, except as allowed in section 16 of the Basic Provisions; and
(2) The male parent plant seed.
(b) In accordance with the provisions of section 11 of the Basic Provisions, the calendar date for the end of the insurance period is the October 31 immediately following planting.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of loss contained in section 10(a) (1) through (7) that occurs during the insurance period.
(b) In addition to the causes of loss excluded by section 12 of the Basic Provisions, we will not insure against any loss of production due to:
(1) The use of unadapted, incompatible, or genetically deficient male or female parent plant seed;
(2) Frost or freeze after the date established by the Special Provisions;
(3) Failure to follow the requirements stated in the hybrid seed corn processor contract and production management practices of the seed company;
(4) Inadequate germination, even if resulting from an insured cause of loss, unless you have provided adequate notice as required by section 11(b)(1); or
(5) Failure to plant the male parent plant seed at a time or in a manner sufficient to assure adequate pollination of the female parent plants, unless you are prevented from planting the male parent plant seed by an insured cause of loss.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples of at least one complete planting pattern of the female and male parent plant rows that extend the entire length of each field in the unit. If you are going to destroy any acreage of the insured crop that will not be harvested, the samples must not be destroyed until after our inspection.
(b) In addition to the requirements of section 14 of the Basic Provisions:
(1) You must give us notice of probable loss at least 15 days before the beginning of harvest if you anticipate inadequate germination on any unit; and
(2) You must provide a completed copy of your hybrid seed corn processor contract unless we have determined it has already been provided by the seed company, and the seed company certifies that such contract is used for all its growers without any waivers or amendments.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) You will not receive an indemnity payment on a unit if the seed company refuses to provide us with records we require to determine the dollar value per bushel of production for each variety.
(c) In the event of loss or damage covered by this policy, we will settle your claim on any unit by:
(1) Multiplying the insured acreage by its respective amount of insurance per acre, by type and variety if applicable;
(2) Totaling the results of section 12(c)(1) if there are more than one type or variety;
(3) Multiplying the total seed production to count (see section 12(d)) for each type and variety of commercial hybrid seed corn by the applicable dollar value per bushel for that type or variety;
(4) Multiplying the total non-seed production to count (see section 12(e)) for each type and variety by the applicable local market price determined on the earlier of the date the non-seed production is sold or the date of final inspection;
(5) Totaling the results of sections 12(c)(3) and 12(c)(4) by type and variety;
(6) Subtracting the result of section 12(c)(5) from the result of section 12(c)(1) if there is only one type or variety, or subtracting the result of 12(c)(5) from the result of section 12(c)(2) if there are more than one type or variety; and
(7) Multiplying the result of section 12(c)(6) by your share. For example:
You have a 100 percent share in 50 acres insured for the development of variety “A” hybrid seed corn in the unit, with an amount of insurance per acre guarantee of $340 (county yield of 160 bushels times a coverage level factor of .867 for the 65 percent coverage level, times a price election of $2.45 per bushel, minus the minimum guaranteed payment of zero). Your seed production was 1,400 bushels and the dollar value per bushel was $9.80. Your non-seed production was 100 bushels with a local market value of $2.00 per bushel. Your indemnity would be calculated as follows:
(1) 50 acres × $340 = $17,000 amount of insurance guarantee;
(3) 1,400 bushels × $9.80 = $13,720 value of seed production;
(4) 100 bushel of non-seed × $2.00 = $200 of non-seed production;
(5) $13,720 + $200 = $13,920;
(6) $17,000 − $13,920 = $3,080; and
(7) $3,080 × 100 percent share = $3,080 indemnity payment.
You also have a 100 percent share in 50 acres insured for the development of variety “B” hybrid seed corn in the unit, with an amount of insurance per acre guarantee of $297 (county yield of 140 bushels times a coverage level factor of .867 for the 65 percent coverage level, times a price election of $2.45 per bushel, minus the minimum guaranteed payment of zero). You harvested 1,200 bushels and the dollar value per bushel for the harvested amount was $8.56. You also harvested 200 bushels of non-seed with a market value of $2.00 per bushel. Your indemnity would be calculated as follows:
(1) 50 acres × $340 = $17,000 amount of insurance guarantee for type “A” and 50 acres × $297 = $14,850 amount of insurance guarantee for type “B”;
(2) $17,000 + $14,850 = $31,850 amount of insurance guarantee;
(3) 1,400 bushels × $9.80 = $13,720 value of seed production for type “A” and 1,200 bushels × $8.56 = $10,272 value of seed production for type “B”;
(4) 100 bushels of non-seed × $2.00 = $200 of non-seed production for type “A” and 200 bushels of non-seed × $2.00 = $400 of non-seed production for type “B”;
(5) $13,720 + $200 + $10,272 + $400 = $24,592 value of production to count;
(6) $31,850 − $24,592 = $7,258; and
(7) $7,258 × 100 percent share = $7,258 indemnity payment.
(d) Production to be counted as seed production will include:
(1) All appraised production as follows:
(i) Not less than the amount of insurance per acre for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Mature unharvested production with a germination rate of at least 80 percent of the commercial hybrid seed corn as determined by a certified seed test. Any such production may be adjusted in accordance with section 12(f);
(iv) Immature appraised production;
(v) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) Harvested production that you deliver as commercial hybrid seed corn to the seed company stated in your hybrid seed corn processor contract, regardless of quality, unless the production has inadequate germination.
(e) Production to be counted as non-seed production will include all harvested or mature appraised production that does not qualify as seed production to count as specified in section 12(d). Any such production may be adjusted in accordance with section 12(f).
(f) For the purpose of determining the quantity of mature production:
(1) Shelled commercial hybrid seed corn will be:
(i) Increased 0.12 percent for each 0.1 percentage point of moisture below 15 percent; or
(ii) Decreased 0.12 percent for each 0.1 percentage point of moisture in excess of 15 percent.
(2) The weight of ear corn required to equal one bushel of shelled seed corn will be increased 1.5 pounds for each full percentage point of moisture in excess of 14 percent, and any portion of a percentage point will be disregarded. The moisture content of ear corn will be determined from a shelled sample of the ear corn.
(3) When records of commercial hybrid seed corn production provided by the seed company have been adjusted to a shelled corn basis of 15.0 percent moisture and 56 pound avoirdupois bushels, sections 12(f)(1) and (2) above will not apply to harvested production. In such cases, records of the seed company will be used to determine the amount of production to count, provided that the moisture and weight of such production are calculated on the same basis as that used to determine the approved yield.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your amount of insurance for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.153 Peach crop insurance provisions.
The Peach Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Bearing tree. A tree in at least the 4th growing season after set out.
Bushel. Fifty pounds of ungraded peaches.
Fresh peach production. Peach production from insurable acreage that:
(1) Is sold, or could be sold, for human consumption without undergoing any change in the basic form, such as peeling, juicing, crushing, etc.
(2) Grades at least U.S. Extra No. 1 or better, and consisting of a 2
(3) Is from acreage that is designated as fresh peaches on the acreage report;
(4) Follows the recommended cultural practices generally in use for fresh peach acreage in the area in a manner generally recognized by agricultural experts;
(5) Is from acreage that you certify, and if requested by us, provide verifiable records to support, that at least 50 percent of the total production from acreage reported as fresh peach acreage was sold as fresh peaches in one or more of the four most recent crop years; and
(6) Is sold or could have been sold for a price that is not less than the applicable fresh peach price election for the applicable crop year in the actuarial documents. If the fresh peach production is sold or could have been sold for a price less than the applicable fresh peach price election for the applicable crop year in the actuarial documents, you must provide verifiable records to show that the price received was at least the amount paid by buyers for fresh peaches in the area in which you sell your peaches.
Harvest. The picking or removal of mature peaches from the trees either by hand or machine.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Loss in quality. When the crop is damaged to the extent that the producer does not receive the average price for U.S. Extra No. 1 peach.
Marketable. Peach production acceptable for processing or other human consumption even if failing to meet any U.S. or applicable state grading standard.
Packing shed. A facility at which peaches are graded, packed and cooled in preparation for shipment to a wholesale market.
Post production cost. The costs, as specified in the Special Provisions, associated with activities that occur during harvesting, packing, transportation, and marketing, as determined by FCIC using regional peach price data of peach production budgets from regional respective universities extension, other USDA agencies, and other third party resources.
Processing peach production. Peach production from insurable acreage that is:
(i) Sold, or could be sold, for the purpose of undergoing a change to its basic structure such as peeling, juicing, crushing, etc.; or
(ii) From acreage designated as processing peaches on the acreage report.
Set out. Transplanting the tree into the orchard.
In addition to the requirements contained in section 34 of the Basic Provisions, optional units may be established if each optional unit is:
(a) Located on non-contiguous land; or
(b) By fresh and processing.
In addition to the requirements of section 3 of the Basic Provisions (§ 457.8):
(a) You may select a separate coverage level for all fresh peach acreage and for all processing peach acreage. For example, if you choose the 55 percent coverage level for all fresh peach acreage, you may choose the 75 percent coverage level for all processing peach acreage.
(1) Notwithstanding paragraph (a) of this section, if you elect the Catastrophic Risk Protection (CAT) level of coverage for fresh peach acreage or processing peach acreage, the CAT level of coverage will be applicable to all insured peach acreage in the county of both fresh and processing peaches.
(2) If you only have fresh peach acreage designated on your acreage report and processing peach acreage is added after the sales closing date, we will assign a coverage level equal to the coverage level you selected for your fresh peach acreage.
(3) If you only have processing peach acreage designated on your acreage report and fresh peach acreage is added after the sales closing date, we will assign a coverage level equal to the coverage level you selected for your processing peach acreage.
(b) You may select only one price election for all the peaches in the county insured under this policy unless the actuarial documents provide different price elections by fresh and processing peaches. If the actuarial documents provide different price elections, you may select a separate price election for all your fresh peaches and for all your processing peaches. If the actuarial documents do not provide different price elections, the price elections you choose for fresh peaches and processing peaches must have the same percentage relationship to the maximum price offered by us for fresh and processing peaches. For example, if you choose 100 percent of the maximum price election for fresh peaches, you must choose 100 percent of the maximum price election for processing peaches.
(c) You must report, not later than the production reporting date designated in section 3 of the Basic Provisions, separately by fresh and processing peach acreage, as applicable:
(1) Any event or action that could impact the yield potential of the insured crop including, interplanting of a perennial crop, removal of trees, any tree damage, change in practices, or any other circumstance that may reduce the expected yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing and non-bearing trees on insurable and uninsurable acreage;
(3) The age of the trees, variety, and the planting pattern; and
(4) For the first year of insurance, acreage interplanted with another perennial crop, and anytime the planting pattern of such acreage is changed:
(i) The age of the crop that is interplanted with the peaches;
(ii) The variety;
(iii) The planting pattern; and
(iv) Any other reasonable and pertinent information that we request in order to establish your approved yield.
(d) We will reduce the yield used to establish your production guarantee, as necessary, based on our estimate of the effect of any situation listed in sections 3(c)(1) through (4). If the situation occurred:
(1) Before the beginning of the insurance period, we will reduce the yield used to establish your production guarantee for the current crop year as necessary. If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce your production guarantee at any time we become aware of the circumstance;
(2) Or may occur after the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee is due to an uninsured cause of loss;
(3) Or may occur after the beginning of the insurance period and you fail to notify us by the production reporting date, production lost due to uninsured causes equal to the amount of the reduction in yield used to establish your production guarantee will be applied in determining any indemnity (see section 12(c)(1)(ii)). We will reduce the yield used to establish your production guarantee for the subsequent crop year.
(e) You may not increase your elected or assigned coverage level or the ratio of your price election to the maximum price election if a cause of loss that could or would reduce the yield of the insured crop has occurred prior to the time that you request the increase.
In accordance with section 4 of the Basic Provisions (§ 457.8), the contract change date is August 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions (§ 457.8), the cancellation and termination dates are November 20.
In addition to the requirements contained in section 6 of the Basic Provisions, you must report and designate all acreage of peaches as fresh or processing peaches by the acreage reporting date. Any acreage not meeting all the requirements to qualify for fresh peach production must be designated on the acreage report as processing peach production.
In accordance with section 8 of the Basic Provisions (§ 457.8), the crop insured will be all the peaches in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown on tree varieties that:
(1) Were commercially available when the trees were set out;
(2) Are a variety having a chilling hour requirement that is appropriate for the area;
(3) Are grown on a root stock that is adapted to the area.
(c) That the crop insured will be any varieties of peaches that are grown for the production of Fresh or Processing Peaches.
(d) That are grown in an orchard that, if inspected, is considered acceptable by us; and
(e) That are grown on trees that have reached at least the fourth leaf year, unless otherwise allowed by the Special Provisions.
In lieu of the provisions in section 9 of the Basic Provisions (§ 457.8), that prohibit insurance attaching to a crop planted with another crop, peaches interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) Coverage begins on November 21 of each crop year, except that for the year of application, if your application is received after November 11 but prior to November 21, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10-day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop to determine the condition of the orchard.
(2) The calendar date for the end of the insurance period for each crop year is September 30.
(b) In addition to the provisions of section 11 of the Basic Provisions (§ 457.8):
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable interest on any acreage of peaches on or before the acreage reporting date for the crop year and if the acreage was insured by you the previous crop year, insurance will not be considered to have attached, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(c) Notwithstanding section 9(a)(1) of this section, for each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(d) If your peach policy is canceled or terminated for any crop year, in accordance with the terms of the policy, after insurance attached for that crop year but on or before the cancellation and termination dates, whichever is later, insurance will not be considered to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(a) In accordance with the provisions of section 12 of the Basic Provisions (§ 457.8), insurance is provided only against the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Earthquake;
(4) Insects, but not damage due to insufficient or improper application of pest control measures;
(5) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(6) Volcanic eruption;
(7) Wildlife, unless control measures have not been taken;
(8) An insufficient number of chilling hours to effectively break dormancy; or
(9) Failure of irrigation water supply, if caused by an insured peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions (§ 457.8), we will not insure against damage or loss of production due to:
(1) Split pits, regardless of cause; or
(2) Inability to market the peaches for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples in accordance with our procedures.
(b) In addition to the requirements of section 14 of the Basic Provisions (§ 457.8), and unless the insurance period has ended prior to each of the following events, the following will apply:
(1) You must notify us within three days of the date that harvest of the damaged variety should have started if the crop will not be harvested.
(2) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested, unless you have records verifying that the direct market peaches were “weighed and graded” through a packing shed. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(3) If you previously gave notice in accordance with section 14 of the Basic Provisions (§ 457.8), and if you intend to claim an indemnity on any unit, you must notify us at least 15 days prior to the beginning of harvest of the damaged variety, so that we may inspect the damaged production. You must not sell or dispose of the damaged crop until after we have given you written consent to do so.
(4) If you fail to meet the requirements of this section and such failure results in our inability to inspect the damaged production, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for fresh and processing peaches, as applicable, by the respective production guarantee;
(2) Multiplying each result in section 12(b)(1) by the respective price election;
(3) Totaling the results in section 12(b)(2);
(4) Multiplying the total production of fresh and processing peaches to be counted, as applicable (see subsection 12(c)) by the respective price election;
(5) Totaling the results in section 12(b)(4);
(6) Subtracting the total in section 12(b)(5) from the total in section 12(b)(3); and
(7) Multiplying the result in section 12(b)(6) by your share.
(A) 10 acres × 300 bushels = 3,000-bushel production guarantee of fresh peaches;
5 acres × 300 bushels = 1,500-bushel production guarantee of processing peaches;
(B) 3,000-bushel production guarantee × $15.50 price election = $46,500 value of the production guarantee for fresh peaches; 1,500-bushel production guarantee × $6.50 price election = $9,750 value of the production guarantee for processing peaches;
(C) $46,500 value of the production guarantee for fresh peaches + $9,750 value of the production guarantee for processing peaches = $56,250 total value of the production guarantee;
(D) 2,500 bushels of fresh peach production to count × $15.50 price election = $38,750 value of the fresh peach production to count; 500 bushels of processing peach production to count × $6.50 price election = $3,250 value of the processing peach production to count;
(E) $38,750 value of the fresh peach production to count + $3,250 value of the processing peach production to count = $42,000 total value of the production to count;
(F) $56,250 total value of the production guarantee – $42,000 total value of the production to count = $14,250 value of loss; and
(G) $14,250 value of loss × 100 percent share = $14,250 indemnity payment.
[End of Example]
(c) The total production to count (in bushels) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) From which production is sold by direct marketing if you fail to meet the requirements contained in section 11.
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested peach production that would be marketable if harvested;
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to adequately care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(v) Any appraised production on insured acreage will be considered production to count unless such production is exceeded by the actual harvested production.
(2) All harvested marketable peach production from the insurable acreage.
(3) Mature marketable peach production may be reduced as a result of a loss in quality due to an insured cause of loss. The amount of production to count for such peaches will be determined as follows:
(i) For fresh peaches by:
(A) Dividing the value of the damaged peaches minus the post production cost specified in the Special Provisions, by the fresh peach price election; and
(B) Multiplying the result of section 12(c)(3)(i)(A) (not to exceed 1.00) by the number of bushels of the damaged fresh peaches.
(ii) For processing peaches by:
(A) Dividing the value of the damaged peaches minus the post production cost specified in the Special Provisions, by the processing peach price election; and
(B) Multiplying the result of section 12(c)(3)(ii)(A) (not to exceed 1.00) by the number of bushels of the damaged processing peaches.
(4) Peaches that cannot be marketed due to insurable causes will not be considered production to count.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.154 Processing sweet corn crop insurance provisions.
The Processing Sweet Corn Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Base contract price. The price stipulated on the processor contract without regard to discounts or incentives that may apply.
Bypassed acreage. Land on which production is ready for harvest but the processor elects not to accept such production so it is not harvested.
Good farming practices. In addition to the definition contained in the Basic Provisions, cultural practices required by the processor contract.
Harvest. The removal of the ears from the stalks for the purpose of delivery to the processor.
Planted acreage. In addition to the definition contained in the Basic Provisions, sweet corn must initially be placed in rows far enough apart to permit mechanical cultivation. Acreage planted in any other manner will not be insurable unless otherwise provided by the Special Provisions or by written agreement.
Practical to replant. In addition to the definition in the Basic Provisions, it will not be considered practical to replant unless the replanted acreage can produce at least 75 percent of the approved yield, and the processor agrees in writing that it will accept the production from the replanted acreage.
Price election. In lieu of the definition of price election in the Basic Provisions, the price election will be the base contract price stated in your processor contract.
Processor. Any business enterprise regularly engaged in canning or freezing processing sweet corn for human consumption, that possesses all licenses and permits for processing sweet corn required by the state in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process contracted processing sweet corn within a reasonable amount of time after harvest.
Processor contract. (1) A written contract between the producer and a processor, containing at a minimum:
(i) The producer’s commitment to plant and grow sweet corn, and to deliver the sweet corn production to the processor;
(ii) The processor’s commitment to purchase all the production stated in the processor contract; and
(iii) A base contract price.
(2) Multiple contracts with the same processor that specify amounts of production will be considered as a single processor contract, unless the contracts are for different types. Your base contract price will be the weighted average of all applicable base contract prices.
Ton. Two thousand (2,000) pounds avoirdupois.
Unhusked ear weight. Weight of the seed-bearing spike of sweet corn including the membranous or green outer envelope.
Usable tons. The quantity of sweet corn for which the producer is compensated or should have been compensated by the processor.
(a) For processor contracts that stipulate the amount of production to be delivered:
(1) In lieu of the definition contained in the Basic Provisions, a basic unit will consist of all acreage planted to the insured crop in the county that will be used to fulfill contracts with each processor;
(i) There will be no more than one basic unit for all production contracted with each processor contract;
(ii) In accordance with section 12, all production from any basic unit in excess of the amount under contract will be included as production to count if such production is applied to any other basic unit for which the contracted amount has not been fulfilled; and
(2) Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm number and by irrigated and non-irrigated practices are not applicable.
(b) For any processor contract that stipulates the number of acres to be planted, the provisions contained in section 34 of the Basic Provisions will apply.
In addition to section 3 of the Basic Provisions:
(a) You may select only one price election percentage for all the processing sweet corn in the county insured under this policy. The percentage of the maximum price election you choose for one type will be applicable to all other types insured under this policy.
(b) The insurance guarantee per acre is expressed as tons of unhusked ear weight. Any other measured production will be converted to an unhusked ear weight equivalent.
(c) The appraised production from bypassed acreage that could have been accepted by the processor will be included when determining your approved yield.
(d) Acreage that is bypassed because it was damaged by an insurable cause of loss will be considered to have a zero yield when determining your approved yield.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are March 15.
In addition to section 6 of the Basic Provisions, you must provide a copy of all processor contracts to us on or before the acreage reporting date.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the processing sweet corn in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That is grown under, and in accordance with, the requirements of a processor contract executed on or before the acreage reporting date and not excluded from the processor contract at any time during the crop year; and
(3) That is not (unless allowed by the Special Provisions or by written agreement):
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume.
(b) You will be considered to have a share in the insured crop if, under the processor contract, you retain control of the acreage on which the sweet corn is grown, you are at risk of loss, and the processor contract provides for delivery of sweet corn under specified conditions and at a stipulated base contract price.
(c) A commercial sweet corn producer who is also a processor may establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or officers of the processor must execute and adopt a resolution that contains the same terms as an acceptable processor contract. Such resolution will be considered a processor contract under this policy; and
(3) Our inspection reveals that the processing facilities comply with the definition of a processor contained in these Crop Provisions.
In addition to section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final planting date, to the extent that the majority of producers in the area would normally not further care for the crop, must be replanted unless we agree that it is not practical to replant; and
(b) We will not insure any acreage that does not meet the rotation requirements, if applicable, contained in the Special Provisions.
In lieu of section 11 of the Basic Provisions, regarding the end of the insurance period, insurance ceases at the earlier of:
(a) The date the sweet corn:
(1) Was destroyed;
(2) Should have been harvested but was not harvested;
(3) Was abandoned; or
(4) Was harvested;
(b) The date you harvest sufficient production to fulfill your processor contract if the processor contract stipulates a specific amount of production to be delivered;
(c) Final adjustment of a loss; or
(d) The end of insurance date specified in the Special Provisions or otherwise allowed by written agreement.
In accordance with section 12 of the Basic Provisions:
(a) Insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions, including:
(i) Excessive moisture that prevents harvesting equipment from entering the field or that prevents the timely operation of harvesting equipment; and
(ii) Abnormally hot or cold temperatures that cause an unexpected number of acres over a large producing area to be ready for harvest at the same time, affecting the timely harvest of a large number of such acres or the processing of such production is beyond the capacity of the processor, either of which causes the acreage to be bypassed.
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures or as otherwise limited by the Special Provisions;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of loss listed in section 10(a)(1) through (7) that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure any loss of production due to:
(1) Bypassed acreage because of:
(i) The breakdown or non-operation of equipment or facilities; or
(ii) The availability of a crop insurance payment. We may deny any indemnity immediately in such circumstance or, if an indemnity has been paid, require you to repay it to us with interest at any time acreage was bypassed due to the availability of a crop insurance payment; or
(2) Your failure to follow the requirements contained in the processor contract.
In addition to section 14 of the Basic Provisions, you must give us notice:
(a) Not later than 48 hours after:
(1) Total destruction of the sweet corn on the unit; or
(2) Discontinuance of harvest on a unit on which unharvested production remains.
(b) Within 3 days after the date harvest should have started on any acreage that will not be harvested unless we have previously released the acreage. You must also provide acceptable documentation of the reason the acreage was bypassed. Failure to provide such documentation will result in our determination that the acreage was bypassed due to an uninsured cause of loss. If the crop will not be harvested and you wish to destroy the crop, you must leave representative samples of the unharvested crop for our inspection. The samples must be at least 10 feet wide and extend the entire length of each field in each unit. The samples must not be destroyed until the earlier of our inspection or 15 days after notice is given to us; and
(c) At least 15 days prior to the beginning of harvest if you intend to claim an indemnity on any unit, or immediately if damage is discovered during the 15 day period or during harvest, so that we may inspect any damaged production. If you fail to notify us and such failure results in our inability to inspect the damaged production, we will consider all such production to be undamaged and include it as production to count. You are not required to delay harvest.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee, by type if applicable;
(2) Multiplying each result of section 12(b)(1) by the respective price election, by type if applicable;
(3) Totaling the results of section 12(b)(2) if there are more than one type;
(4) Multiplying the total production to count (see section 12(c)), for each type if applicable, by its respective price election;
(5) Totaling the results of section 12(b)(4) if there are more than one type;
(6) Subtracting the results of section 12(b)(4) from the results of section 12(b)(2) if there is only one type or subtracting the results of section 12(b)(5) from the result of section 12(b)(3) if there are more than one type; and
(7) Multiplying the result of section 12(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of type A processing sweet corn in the unit, with a guarantee of 6.0 tons per acre and a price election of $100.00 per ton. You are only able to harvest 200 tons. Your indemnity would be calculated as follows:
(1) 100 acres × 6.0 tons = 600 tons guarantee;
(2) 600 tons × $100.00 price election = $60,000.00 value of guarantee;
(3) Not applicable;
(4) 200 tons × $100.00 price election = $20,000.00 value of production to count;
(5) Not applicable;
(6) $60,000.00−$20,000.00 = $40,000.00 loss; and
(7) $40,000.00 × 100 percent = $40,000.00 indemnity payment.
You also have a 100 percent share in 100 acres of type B processing sweet corn in the same unit, with a guarantee of 60 tons per acre and a price election of $90.00 per ton. You are only able to harvest 350 tons. Your total indemnity for both types A and B would be calculated as follows:
(1) 100 acres × 6.0 tons = 600 tons guarantee for type A, and 100 acres × 6.0 tons = 600 tons guarantee for type B;
(2) 600 tons × $100.00 price election = $60,000.00 value of guarantee for type A, and 600 tons × $90.00 price election = $54,000.00 value of guarantee for type B;
(3) $60,000.00 + $54,000.00 = $114,000.00 total value of guarantee;
(4) 200 tons × $100.00 price election = $20,000.00 value of production to count for type A, and 350 tons × $90.00 price election = $31,500.00 value of production to count for type B;
(5) $20,000.00 + $31,500.00 = $51,500.00 total value of production to count;
(6) $114,000.00−$51,500.00 = $62,500.00 loss; and
(7) $62,500.00 loss × 100 percent = $62,500.00 indemnity payment.
(c) The total production to count, specified in tons of unhusked ear weight, from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us.
(ii) Production lost due to uninsured causes.
(iii) Production on acreage that is bypassed unless the acreage was bypassed due to an insured cause of loss which resulted in production which would not be acceptable under the terms of the processor contract.
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested.
(2) All harvested processing sweet corn production from the insurable acreage. The amount of such production will be:
(i) The usable tons of processing sweet corn shown on the processor settlement sheet, if available; or
(ii) Determined by dividing the dollar amount paid, payable, or which should have been paid under the terms of the processor contract for the quantity of the sweet corn delivered to the processor by the base contract price per ton; and
(3) All harvested processing sweet corn production from any other insurable units that have been used to fulfill your processor contract for this unit.
The total production to count will be expressed as an unhusked ear weight. Any other measure of production will be converted to an unhusked ear weight equivalent.
A late planting period is not applicable to processing sweet corn unless allowed by the Special Provisions and you provide written approval from the processor by the acreage reporting date that it will accept the production from the late planted acres when it is expected to be ready for harvest.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.155 Processing bean crop insurance provisions.
The Processing Bean Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
Base contract price. The price stipulated in the processor contract for the grade factor or sieve size that is designated in the Special Provisions, if applicable, without regard to discounts or incentives that may apply.
Broker. A business enterprise that has all the licenses and permits required by the state in which it operates, and has a long term agreement in writing with a processor to purchase and deliver processing beans.
Bypassed acreage. Land on which production is ready for harvest but the processor elects not to accept such production so it is not harvested.
Good farming practices. The cultural practices generally in use in the county for the crop to make normal progress toward maturity and produce at least the yield used to determine the production guarantee and are those required by the bean processor contract with the processing company, and recognized by the National Institute of Food and Agriculture as compatible with agronomic and weather conditions in the county.
Harvest. The mechanical picking of bean pods from the vines.
Planted acreage. In addition to the definition contained in the Basic Provisions, beans must initially be placed in rows far enough apart to permit mechanical cultivation to be considered planted. Acreage planted in any other manner will not be insurable unless otherwise provided by the Special Provisions or by written agreement.
Practical to replant. In lieu of the definition of “Practical to replant” contained in section 1 of the Basic Provisions, practical to replant is defined as our determination, after loss or damage to the insured crop, based on factors including, but not limited to, moisture availability, condition of the field, time to crop maturity, and marketing window, that replanting the insured crop will allow the crop to attain maturity prior to the calendar date for the end of the insurance period. It will not be considered practical to replant unless the replanted acreage can produce at least 75 percent of the approved yield, and the processor agrees in writing that it will accept the production from the replanted acreage.
Processing beans. Lima, snap, or other bean types identified in the Special Provisions that are grown under a processor contract to be canned or frozen and sold for human consumption.
Processor. Any business enterprise regularly engaged in canning or freezing processing beans for human consumption, that possesses all licenses and permits for processing beans required by the state in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process the contracted beans within a reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a processor, or between the producer and a broker, containing at a minimum:
(a) The producer’s commitment to plant and grow processing beans, and to deliver the bean production to the processor or broker;
(b) The processor’s, or broker’s, commitment to purchase all the production stated in the processor contract; and
(c) A base contract price.
Multiple contracts with the same processor that specify amounts of production will be considered as a single processor contract unless the contracts are for different types of processing beans.
Ton. Two thousand (2,000) pounds avoirdupois.
Type. A category of processing beans identified as a type in the Special Provisions.
(a) For any processor contract that stipulates the amount of production to be delivered:
(1) In lieu of the definition contained in the Basic Provisions, a basic unit will consist of all acreage planted to the insured crop in the county that will be used to fulfill contracts with each processor;
(i) There will be no more than one basic unit for all production contracted with each processor contract;
(ii) In accordance with section 12, all production from any basic unit in excess of the amount under contract will be included as production to count if such production is applied to any other basic unit for which the contracted amount has not been fulfilled; and
(2) Provisions in the Basic Provisions that allow optional units by section, section equivalent, or FSA farm serial number and by irrigated and non-irrigated practices are not applicable. Optional units will not be established.
(b) For any processor contract that stipulates the number of acres to be planted, in addition to or instead of, establishing optional units by section, section equivalent or FSA farm serial number, or irrigated and non-irrigated acreage, optional units may be established by type if acreage of one type does not continue into acreage of another type in the same rows or planting pattern.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one price election for all the processing beans in the county insured under this policy unless the Special Provisions provide different price elections by type. The percentage of the maximum price elections you choose for one type will be applicable to all other types insured under this policy.
(b) The appraised production from bypassed acreage that could have been accepted by the processor will be included when determining your approved yield.
(c) Acreage that is bypassed because it was damaged by an insurable cause of loss will be considered to have a zero yield when determining your approved yield.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are March 15.
In addition to the provisions of section 6 of the Basic Provisions, you must provide a copy of all processor contracts to us on or before the acreage reporting date.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the processing beans in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are grown under, and in accordance with, the requirements of a processor contract executed on or before the acreage reporting date and are not excluded from the processor contract at any time during the crop year; and
(3) That are not (unless allowed by the Special Provisions or by written agreement):
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume.
(b) You will be considered to have a share in the insured crop if, under the processor contract, you retain control of the acreage on which the processing beans are grown, you are at risk of loss, and the processor contract provides for delivery of the processing beans under specified conditions and at a stipulated base contract price.
(c) A commercial processing bean producer who is also a processor or broker may establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or officers of the processor or the broker must execute and adopt a resolution that contains the same terms as an acceptable processor contract. Such resolution will be considered a processor contract under this policy; and
(3) Our inspection reveals that the processing facilities comply with the definition of a processor contained in these Crop Provisions.
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final planting date, to the extent that the majority of producers in the area would normally not further care for the crop, must be replanted unless we agree that it is not practical to replant; and
(b) We will not insure acreage that does not meet any rotation requirements, if applicable, contained in the Special Provisions.
In lieu of the provisions contained in section 11 of the Basic Provisions, regarding the end of the insurance period, insurance ceases at the earlier of:
(a) The date the processing beans:
(1) Were destroyed;
(2) Should have been harvested but were not harvested;
(3) Were abandoned; or
(4) Were harvested;
(b) The date you harvest sufficient production to fulfill your processor contract if the processor contract stipulates a specific amount of production to be delivered;
(c) Final adjustment of a loss; or
(d) The date shown below for the end of the insurance period in the calendar year in which the processing beans would normally be harvested, unless otherwise agreed to in writing, as follows:
(1) October 30 for all processing beans in the state of Arkansas;
(2) October 15 for all processing beans in the states of Delaware, Maryland, and New Jersey;
(3) October 5 for all processing beans in the states of Idaho, Oregon, and Washington;
(4) September 30 for snap beans in the state of New York;
(5) September 20 for snap beans in all other states; or
(6) October 5 for lima beans in all other states.
In accordance with the provisions of section 12 of the Basic Provisions:
(a) Insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions, including:
(i) Excessive moisture that prevents the harvesting equipment from entering the field or that prevents the timely operation of harvesting equipment; and
(ii) Abnormally hot or cold temperatures that cause an unexpected number of acres over a large producing area to be ready for harvest at the same time, affecting the timely harvest of a large number of such acres or the processing of such production is beyond the capacity of the processor, either of which causes the acreage to be bypassed.
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease on acreage not planted to processing beans the previous crop year. (In certain instances, contained in the Special Provisions or in a written agreement, acreage planted to processing beans the previous year may be covered. Damage due to insufficient or improper application of disease control measures is not covered);
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of loss contained in section 10 (a)(1) through (7) that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure any loss of production due to:
(1) Bypassed acreage because of:
(i) The breakdown or non-operation of equipment or facilities; or
(ii) The availability of a crop insurance payment. We may deny any indemnity immediately in such circumstance or, if an indemnity has been paid, require you to repay it to us with interest at any time acreage was bypassed due to the availability of a crop insurance payment; or
(2) Your failure to follow the requirements contained in the processor contract.
In addition to the notice required by section 14 of the Basic Provisions, you must give us notice:
(a) Not later than 48 hours after:
(1) Total destruction of the processing beans on the unit; or
(2) Discontinuance of harvest on a unit on which unharvested production remains.
(b) Within 3 days after the date harvest should have started on any acreage that will not be harvested unless we have previously released the acreage. You must also provide acceptable documentation of the reason the acreage was bypassed. Failure to provide such documentation will result in our determination that the acreage was bypassed due to an uninsured cause of loss. If the crop will not be harvested and you wish to destroy the crop, you must leave representative samples of the unharvested crop for our inspection. The samples must be at least 10 feet wide and extend the entire length of each field in each unit. The samples must not be destroyed until the earlier of our inspection or 15 days after notice is given to us; and
(c) At least 15 days prior to the beginning of harvest if you intend to claim an indemnity on any unit, or immediately if damage is discovered during the 15 day period or during harvest. If you fail to notify us and such failure results in our inability to inspect the damaged production, we will consider all such production to be undamaged and include it as production to count. You are not required to delay harvest.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee, by type if applicable;
(2) Multiplying each result of section 12(b)(1) by the respective price election, by type if applicable;
(3) Totaling the results of section 12(b)(2) if there are more than one type;
(4) Multiplying the total production to count (see section 12(c)), for each type if applicable, by its respective price election;
(5) Totaling the results of section 12(b)(4) if there are more than one type;
(6) Subtracting the results of section 12(b)(4) from the results of section 12(b)(2) if there is only one type or subtracting the results of section 12(b)(5) from the result of section 12(b)(3) if there are more than one type; and
(7) Multiplying the result of section 12(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of snap type processing beans in the unit, with a guarantee of 3.0 tons per acre and a price election of $110.00 per ton. You are only able to harvest 200 tons. Your indemnity would be calculated as follows:
(1) 100 acres × 3.0 tons = 300 tons guarantee;
(2) 300 tons × $110.00 price election = $33,000.00 value of guarantee;
(3) 200 tons × $110.00 price election = $22,000.00 value of production to count;
(4) $33,000.00 − $22,000.00 = $11,000.00 loss; and
(5) $11,000.00 × 100 percent = $11,000.00 indemnity payment.
You also have a 100 percent share in 100 acres of lima type processing beans in the same unit, with a guarantee of 1.0 ton per acre and a price election of $225.00 per ton. You are only able to harvest 75 tons. Your total indemnity for both snap and lima types processing beans would be calculated as follows:
(1) 100 acres × 3.0 tons = 300 tons guarantee for the snap type, and 100 acres × 1.0 ton = 100 tons guarantee for the lima type;
(2) 300 tons × $110.00 price election = $33,000.00 value of guarantee for the snap type, and 100 tons × $225.00 price election = $22,500.00 value of guarantee for the lima type;
(3) $33,000.00 + $22,500.00 = $55,500.00 total value of guarantee;
(4) 200 tons × $110.00 price election = $22,000.00 value of production to count for the snap type, and 75 tons × $225.00 price election = $16,875.00 value of production to count for the lima type;
(5) $22,000.00 + $16,875.00 = $38,875.00 total value of production to count;
(6) $55,500.00 − $38,875.00 = $16,625.00 loss; and
(7) $16,625.00 loss × 100 percent = $16,625.00 indemnity payment.
(c) The total production to count, specified in tons, from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us.
(ii) Production lost due to uninsured causes.
(iii) Production on acreage that is bypassed unless the acreage was bypassed due to an insured cause of loss which resulted in production which would not be acceptable under the terms of the processor contract.
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested.
(2) All harvested processing bean production from the insurable acreage. The amount of such production will be:
(i) The usable tons of processing beans shown on the processor settlement sheet, if available; or
(ii) Determined by dividing the dollar amount paid, payable, or which should have been paid under the terms of the processor contract for the quality and quantity of beans to be delivered to the processor by the base contract price per ton; and
(3) All harvested processing bean production from any other insurable units that have been used to fulfill your processor contract for this unit.
A late planting period is not applicable to processing beans unless allowed by the Special Provisions and you provide written approval from the processor by the acreage reporting date that it will accept the production from the late planted acres when it is expected to be ready for harvest.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§§ 457.156-457.157 [Reserved]
§ 457.158 Apple crop insurance provisions.
The apple crop insurance provisions for the 2011 and succeeding crop years are as follows:
Apple production. All fresh apple production and processing apple production from insurable acreage.
Area A. A geographic area that includes Montana, Wyoming, Utah, New Mexico and all states west thereof.
Area B. A geographic area that includes all states not included in Area A, except Colorado.
Area C. Colorado.
Bin. A container that contains a minimum of 875 pounds of apples or another quantity as designated in the Special Provisions.
Box. A container that contains 35 pounds of apples or another quantity as designated in the Special Provisions.
Bushel. In all states except Colorado, 42 pounds of apples. In Colorado, 40 pounds of apples.
Damaged apple production.
(1) With respect to losses calculated under section 12 only, the percentage of fresh or processing apple production that fails to grade U.S. No. 1 Processing or better in accordance with the grade standards due to an insurable cause of loss; or
(2) With respect to losses calculated under section 14, the percentage of fresh apple production that fails to grade U.S. Fancy or better in accordance with the grade standards due to an insurable cause of loss.
Direct marketing. Sale of the insured crop directly to consumers without the intervention of an intermediary such as a wholesaler, retailer, packer, processor, shipper, buyer, or broker. Examples of direct marketing include selling through an on-farm or roadside stand, or a farmer’s market, and permitting the general public to enter the field for the purpose of picking all or a portion of the crop.
Fresh apple production. (1) Apples:
(i) That are sold, or could be sold, for human consumption without undergoing any change in the basic form, such as peeling, juicing, crushing, etc.;
(ii) From acreage that is designated as fresh apples on the acreage report;
(iii) That follow the recommended cultural practices generally in use for fresh apple acreage in the area in a manner generally recognized by agricultural experts; and
(iv) From acreage that you certify, and, if requested by us provide verifiable records to support, that at least 50 percent of the production from acreage reported as fresh apple acreage from each unit, was sold as fresh apples in one or more of the four most recent crop years.
(2) Acreage with production not meeting all the requirements above must be designated on the acreage report as processing apple production.
Grade standards. The United States Standards for Grades of Apples, the United States Standards for Grades of Apples for Processing, or such other standards contained in the Special Provisions.
Harvest. The picking of mature apples from the trees or collecting of mature apples from the ground. Apples collected from the ground that cannot be sold for human consumption will not be considered harvested.
Marketable. Apple production that is not damaged apple production.
Mature. Apples defined as “mature” under the applicable grade standards.
Pounds. Sixteen (16) ounces avoirdupois.
Processing apple production. Apples from insurable acreage failing to meet the insurability requirements for fresh apple production that are:
(1) Sold, or could be sold for the purpose of undergoing a change to the basic structure such as peeling, juicing, crushing, etc.; or
(2) From acreage designated as processing apples on the acreage report.
Production guarantee (per acre). The quantity of apples in boxes or bushels determined by multiplying the approved APH yield per acre by the coverage level percentage you elect. If the production of apples has been measured in bins, the amount must be converted to boxes or bushels.
Russeting. A defect on the surface of the apple as described in the grade standards.
Sunburn. A defect as described in the grade standards.
Type. A category of apples as designated in the Special Provisions.
In addition to the requirements of section 34(b) of the Basic Provisions, optional units may be established if each optional unit is:
(a) Located on non-contiguous land; or
(b) By type as specified in the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one coverage level for all fresh apple acreage and only one coverage level for all processing apple acreage. For example, if you choose the 55 percent coverage level for all your fresh apple acreage (i.e., fresh, varietal group types), you may choose the 75 percent coverage level for all your processing apple acreage. However, if you elect the Catastrophic Risk Protection (CAT) level of insurance for fresh apple acreage or processing apple acreage, the CAT level of coverage will be applicable to all insured apple acreage in the county. If you only have fresh apple acreage designated on your acreage report and processing apple acreage is added after the sales closing date, we will assign a coverage level equal to the coverage level you selected for your fresh apple acreage. If you only have processing apple acreage designated on your acreage report and fresh apple acreage is added after the sales closing date, we will assign a coverage level equal to the coverage level you selected for your processing apple acreage.
(b) You may select only one price election for all the apples in the county insured under this policy unless the Special Provisions provide different price elections by type, in which case you may select one price election for each apple type designated in the Special Provisions. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(c) You must report, by the production reporting date designated in section 3 of the Basic Provisions, by type, if applicable:
(1) Any event or action that could impact the yield potential of the insured crop including interplanted perennial crop, removal of trees, any damage, change in practices, or any other circumstance that may reduce the expected yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with another perennial crop, and any time the planting pattern of such acreage has changed:
(i) The age and type of the interplanted crop, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your approved yield.
(d) We will reduce the yield used to establish your production guarantee, as necessary, based on our estimate of the effect of any situation listed in sections 3(c)(1) through (c)(4). If the situation occurred:
(1) Before the beginning of the insurance period, the yield used to establish your production guarantee will be reduced for the current crop year regardless of whether the situation was due to an insured or uninsured cause of loss. If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce the yield used to establish your production guarantee at any time we become aware of the circumstance;
(2) Or may occur after the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee will be reduced for the current crop year only if the potential reduction in the yield used to establish your production guarantee is due to an uninsured cause of loss; or
(3) Or may occur after the beginning of the insurance period and you fail to notify us by the production reporting date, production lost due to uninsured causes equal to the amount of the reduction in the yield used to establish your production guarantee will be applied in determining any indemnity (see section 12(c)(1)(ii)). We will reduce the yield used to establish your production guarantee for the subsequent crop year.
In accordance with section 4 of the Basic Provisions, the contract change date is October 31 preceding the cancellation date for California and August 31 preceding the cancellation date for all other states.
(a) In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are January 31 in California and November 20 in all other states.
(b) If, in accordance with the terms of the policy, your apple policy is canceled or terminated by us for any crop year after insurance attached for that crop year, but on or before the cancellation and termination dates, whichever is later, insurance will be considered not to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(c) We may not cancel your policy when an insured cause of loss has occurred after insurance attached, but prior to the cancellation date. However, your policy can be terminated if a cause for termination contained in sections 2 or 27 of the Basic Provisions exists.
In addition to the requirements contained in section 6 of the Basic Provisions, you must report and designate all acreage by type by the acreage reporting date. Any acreage not qualifying for fresh apple production is not eligible for the Optional Coverage for Fresh Fruit Quality Adjustment option contained in section 14 of these Crop Provisions. If you designate fresh apple acreage on the acreage report, you are certifying at least 50 percent of the production from acreage reported as fresh apple acreage, by unit, was sold as fresh apples in one or more of the four most recent crop years in accordance with the definition of “fresh apple production” and that you have the records to support such production.
In accordance with section 8 of the Basic Provisions, the crop insured will be all apples in the county for which a premium rate is provided by the actuarial table:
(a) In which you have a share;
(b) That are grown on tree varieties that are adapted to the area and have, in at least one of the previous four years, produced:
(1) 10 bins of apples per acre in Area A;
(2) 150 bushels of apples per acre in Area B; or
(3) 200 bushels of apples per acre in Area C;
(c) That are grown in an orchard that, if inspected, is considered acceptable by us; and
(d) That are grown for:
(1) Fresh apple production; or
(2) Processing apple production.
In lieu of the provisions in section 9 of the Basic Provisions that prohibit insurance from attaching to a crop planted with another crop, apples interplanted with another perennial crop are insurable unless we inspect the acreage and determine that it does not meet the requirements contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) For the year of application, coverage begins on February 1 of the calendar year the insured crop normally blooms in California and November 21 of the calendar year prior to the calendar year the insured crop normally blooms in all other States. Notwithstanding the previous sentence, if your application is received by us after January 12 but prior to February 1 in California, or after November 1 but prior to November 21 in all other States, insurance will attach on the 20th day after your properly completed application is received in our local office, unless we inspect the acreage during the 20-day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the apple acreage.
(2) For each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring an existing policy to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(3) The calendar date for the end of the insurance period for each crop year is November 5, or such other date as specified in the Special Provisions.
(4) Notwithstanding the provisions in this section, coverage will not be considered to have begun for a crop year if the policy is canceled or terminated in accordance with section 5(b).
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period. There will be no coverage of any insurable interest acquired after the acreage reporting date.
(2) If you relinquish your insurable share on any insurable acreage of apples on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(3) If you relinquish your insurable share on any insurable acreage of apples after the acreage reporting date for the crop year, insurance coverage will be provided for any loss due to an insurable cause of loss that occurred prior to the date that you relinquished your insurable share and the whole premium will be due for such acreage for that crop year.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period and result in damaged apple production:
(1) Adverse weather conditions;
(2) Fire unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Earthquake;
(6) Volcanic eruption;
(7) Failure of the irrigation water supply, if caused by an insured peril that occurs during the insurance period;
(8) Wildlife; and
(9) All other natural causes of loss that cannot be prevented, including, but not limited to, hail, wind, excess sun causing sunburn, and frost and freeze causing russeting.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to your inability to market the apples for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
(a) In accordance with the requirements of section 14 of the Basic Provisions, you must leave representative samples in accordance with our procedures.
(b) In addition to the requirements of section 14 of the Basic Provisions, the following will apply:
(1) You must notify us at least 3 days prior to the date harvest should have started if the crop will not be harvested.
(2) You must notify us at least 15 days before any production from any unit will be sold by direct marketing. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice that production will be sold by direct marketing will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(3) If you intend to claim an indemnity on any unit, you must notify us at least 15 days prior to the beginning of harvest, or immediately if damage is discovered during harvest. You must not sell or dispose of the damaged crop until after we have given you written consent to do so. If you fail to meet the requirements of this section and such failure results in our inability to inspect the damaged production, all such production will be considered undamaged and included as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim on any unit by:
(1) Multiplying the insured acreage by its respective production guarantee, by type as applicable;
(2) Multiplying each result in section 12(b)(1) by the respective price election and by the percent of price election;
(3) Totaling the results in section 12(b)(2) if there are more than one type;
(4) Multiplying the total production to count (see section 12(c)), for each type as applicable, by the respective price election and by the percent of price election;
(5) Totaling the results in section 12(b)(4), if there are more than one type;
(6) Subtracting the total in section 12(b)(5) from the total in section 12(b)(3); and
(7) Multiplying the result in section 12(b)(6) by your share.
Basic Coverage Example:
You have a 100 percent share in one basic unit with 10 acres of fresh apples and 5 acres of processing apples designated on your acreage report, with a 600 bushel per acre production guarantee for both fresh and processing apples, and you select 100 percent of the price election on a price election of $9.10 per bushel for fresh apples and $2.50 per bushel for processing apples. You harvest 5,000 bushels of fresh apples and 1,000 bushels of processing apples, all grading U.S. No. 1 Processing or better. Your indemnity will be calculated as follows:
A. 10 acres × 600 bushels = 6,000-bushel production guarantee of fresh apples;
5 acres × 600 bushels = 3,000-bushel production guarantee of processing apples;
B. 6,000-bushel production guarantee × $9.10 price election × 100 percent of price election = $54,600 value of production guarantee for fresh apples;
3,000-bushel production guarantee × $2.50 price election × 100 percent of price election = $7,500 value of production guarantee for processing apples;
C. $54,600 value of production guarantee for fresh apples + $7,500 value of production guarantee for processing apples = $62,100.00 total value of the production guarantee;
D. 5,000 bushels of fresh apple production to count × $9.10 price election × 100 percent of price election = $45,500 value of fresh apple production to count;
1,000 bushels of processing apple production to count × $2.50 price election × 100 percent of price election = $2,500 value of processing apple production to count;
E. $45,500 value of fresh apple production to count + $2,500 value of processing apple production to count = $48,000 total value of production to count;
F. $62,100 total value of the production guarantee − $48,000 total value of production to count = $14,100.00 value of loss; and
G. $14,100 value of loss × 100 percent share = $14,100 indemnity payment.
(c) The total production to count (in boxes or bushels) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the requirements contained in section 11;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested apple production that would be marketable if harvested; and
(iv) Potential marketable apple production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested marketable production from the insurable acreage.
(d) Any apple production not graded or appraised prior to the earlier of the time apples are placed in storage or the date the apples are delivered to a packer, processor, or other handler will not be considered damaged apple production and will be considered production to count.
The late and prevented planting provisions of the Basic Provisions are not applicable.
(a) In the event of a conflict between the Apple Crop Insurance Provisions and this option, this option will control. Insureds who select this option cannot receive less than the indemnity due under section 12.
(b) In return for payment of the additional premium designated in the actuarial documents, this option provides for quality adjustment of fresh apple production as follows:
(1) To be eligible for this option, you must have elected to insure your apples at the additional coverage level. If you elect Catastrophic Risk Protection (CAT) after this option is effective, it will be considered as notice of cancellation of this option by you.
(2) You must elect this option on or before the sales closing date for the initial crop year for which you wish to insure your apples under this option. This option will continue in effect until canceled by either you or us for any succeeding crop year by written notice to the other party on or before the cancellation date.
(3) This option will apply to all your apple acreage designated in your acreage report as grown for fresh apple production and that meets the insurability requirements specified in the Apple Crop Insurance Provisions, except any acreage specifically excluded by the actuarial documents. Any acreage designated in your acreage report as grown for processing apple production is not eligible for coverage under this option.
(4) In lieu of sections 12(c)(1)(iii), (iv) and (2), the production to count will include all appraised and harvested production from all of the fresh apple acreage in the unit, adjusted in accordance with this option.
(5) If appraised or harvested fresh apple production for the block or unit, as applicable, is damaged to the extent that more than 20 percent of the apple production does not grade U.S. Fancy or better the following adjustments to the production to count will apply:
(i) Fresh apple production to count with 21 percent through 40 percent damaged apple production will be reduced 2 percent for each full one percent in excess of 20 percent.
(ii) Fresh apple production to count with 41 percent through 50 percent damaged apple production will be reduced 40 percent plus an additional 3 percent for each full one percent in excess of 40 percent.
(iii) Fresh apple production to count with 51 percent through 64 percent damaged apple production will be reduced 70 percent plus an additional 2 percent for each full one percent in excess of 50 percent.
(iv) Fresh apple production to count with 65 percent or more damaged apple production will not be considered production to count.
(v) Notwithstanding sections 14(b)(5)(i) through (iv), if you sell any of your fresh apple production as U.S. Fancy or better, all such sold production will be included as production to count under this option.
(c) Any apple production not graded or appraised prior to the earlier of the time apples are placed in storage or the date the apples are delivered to a packer, processor, or other handler will not be considered damaged apple production and will be considered production to count under this option.
(d) Any adjustments that reduce your production to count under this option will not be applicable when determining production to count for APH purposes.
You have a 100 percent share in 10 acres of fresh apples designated on your acreage report, with a 600 bushel per acre guarantee, and you select 100 percent of the price election on a price election of $9.10 per bushel. You harvest 5,000 bushels of apples from your designated fresh apple acreage, but only 2,650 of those bushels grade U.S. Fancy or better. Assuming you do not sell any of your fresh apple production as U.S. Fancy or better, your indemnity would be calculated as follows:
A. 10 acres × 600 bushels per acre = 6,000-bushel production guarantee of fresh apples;
B. 6,000-bushel production guarantee of fresh apples × $9.10 price election × 100 percent of price election = $54,600 value of production guarantee for fresh apple acreage;
C. The value of the fresh apple production to count is determined as follows:
i. 5,000 bushels harvested − 2,650 bushels that graded U.S. Fancy or better = 2,350 bushels of fresh apple production not grading U.S. Fancy or better;
ii. 2,350/5,000 = 47 percent of fresh apple production not grading U.S. Fancy or better;
iii. In accordance with section 14(b)(5)(ii): 47 percent − 40 percent = 7 percent in excess of 40 percent;
iv. 7 percent × 3 = 21 percent;
v. 40 percent + 21 percent = 61 percent;
vi. 5,000 bushels harvested × .61 (61 percent) = 3,050 bushels of fresh apple production not grading U.S. Fancy or better;
vii. 5,000 bushels harvested − 3,050 bushels of fresh apple production not grading U.S. Fancy or better = 1,950 bushels of adjusted fresh apple production to count;
viii. 1,950 bushels of adjusted fresh apples production to count × $9.10 price election × 100 percent of price election = $17,745 value of fresh apple production to count;
D. $54,600 value of production guarantee for fresh apples − $17,745 value of fresh apple production to count = $36,855 value of loss;
E. $36,855 value of loss × 100 percent share = $36,855 indemnity payment.
§ 457.159 Stonefruit crop insurance provisions.
The Stonefruit Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Grade standards. The United States Standards for Grades of Peaches, the United States Standards for Grades of Nectarines, the United States Standards for Grades of Apricots, and the United States Standards for Grades of Fresh Plums and Prunes, or other such standards specified in the Special Provisions.
Graft. To unite a shoot or bud with a rootstock in accordance with recommended practices to form a living union.
Harvest. The physical removal of mature stonefruit from the tree either by hand or machine.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Lug. A container of fresh stonefruit of specified weight. Lugs of varying sizes will be converted to standard lug equivalents on the basis of the following average net pounds of packed fruit, or as specified in the Special Provisions:
| Crop | Pounds per lug |
|---|---|
| Fresh Apricots | 24 |
| Fresh Nectarines | 25 |
| Fresh Freestone Peaches | 25 |
| Fresh Plums | 28 |
Weight for Processing Apricots, Processing Cling Peaches, and Processing Freestone Peaches is specified in tons.
Marketable. Stonefruit production that meets or exceeds the quality standards for U.S. No. 1 in accordance with the applicable grade standards or other standards as specified in the Special Provisions, or if stonefruit production fails to meet the applicable grade standards, stonefruit production that is accepted by a packer, processor or other handler.
Processor. A business enterprise regularly engaged in processing fruit for human consumption that possesses all licenses and permits for processing fruit required by the state in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process contracted fruit within a reasonable amount of time after harvest.
Stonefruit. Any of the following crops grown for fresh market or processing:
(a) Fresh Apricots;
(b) Fresh Freestone Peaches;
(c) Fresh Nectarines;
(d) Fresh Plums;
(e) Processing Apricots;
(f) Processing Cling Peaches;
(g) Processing Freestone Peaches; and
(h) Other crops listed in the Special Provisions.
Ton. Two thousand (2,000) pounds avoirdupois.
Type. A category of a stonefruit crop with similar characteristics that are grouped for insurance purposes, as listed in the Special Provisions.
In lieu of the provisions of section 34 of the Basic Provisions that allow optional units by section, section equivalent, or FSA farm number and by irrigated and non-irrigated practices, optional units will only be allowed as stated herein or by written agreement.
(a) Optional Units on Acreage Located on Non-contiguous Land: Optional units may be established if each optional unit is located on non-contiguous land.
(b) Optional Units by Type: Optional units may be established by type if allowed by the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one price election and coverage level for each crop grown in the county and listed in the Special Provisions that is insured under this policy. If separate price elections are available by type of a crop, the price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type of cling peach, you must choose 100 percent of the maximum price election for all other types of cling peaches.
(b) You must report, by the production reporting date designated in section 3 of the Basic Provisions, by type, if applicable, for each stonefruit crop:
(1) Any damage, removal of trees, change in practices, or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based, and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted with another perennial crop, and any time the planting pattern of such acreage is changed:
(i) The age of the interplanted crop, and type if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your approved yield.
(c) We will reduce the yield used to establish your production guarantee, as necessary, based on our estimate of the effect of any situation listed in sections 3(b)(1) through (b)(4). If the situation occurred:
(1) Before the beginning of the insurance period, the yield used to establish your production guarantee will be reduced for the current crop year regardless of whether the situation was due to an insured or uninsured cause of loss. If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce the yield used to establish your production guarantee at any time we become aware of the circumstance;
(2) Or may occur after the beginning of the insurance period and you notify us by the production reporting date, the yield used to establish your production guarantee will be reduced for the current crop year only if the potential reduction in the yield used to establish your production guarantee is due to an uninsured cause of loss; or
(3) Or may occur after the beginning of the insurance period and you fail to notify us by the production reporting date, production lost due to uninsured causes equal to the amount of the reduction in yield used to establish your production guarantee will be applied in determining any indemnity (see section 11(c)(1)(ii)). We will reduce the yield used to establish your production guarantee for the subsequent crop year.
(d) You may not increase your elected or assigned coverage level or the ratio of your price election to the maximum price election we offer if a cause of loss that could or would reduce the yield of the insured crop is evident prior to the time that you request the increase.
In accordance with section 4 of the Basic Provisions, the contract change date is October 31 for California and August 31 preceding the cancellation date for all other states, or as specified in the Special Provisions.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are January 31 for California and November 20 for all other states, or as specified in the Special Provisions.
In accordance with section 8 of the Basic Provisions, the crop insured will be all acreage of each stonefruit crop you elect to insure, that is grown in the county, and for which premium rates are provided in the actuarial documents:
(a) In which you have a share;
(b) That is grown on trees that:
(1) Were commercially available when the trees were set out or have subsequently become commercially available;
(2) Are adapted to the area;
(3) Are grown on root stock that is adapted to the area;
(4) Are in compliance with the applicable State’s Tree Fruit Agreement or related crop advisory board for the state (for each insured crop and type), when such regulations exist;
(5) Have produced at least 200 lugs of fresh market production per acre, or at least 2.2 tons per acre for processing crops, in at least one of the four most recent actual production history crop years, unless otherwise allowed by the Special Provisions;
(6) Have reached at least the fifth leaf year, including the fifth leaf year after grafting if grafting occurs after set out, unless otherwise allowed by the Special Provisions; and
(7) Are grown in an orchard that, if inspected, is considered acceptable by us.
In lieu of the provisions of section 9 of the Basic Provisions that prohibit insurance attaching to a crop planted with another crop, stonefruit interplanted with another perennial crop is insurable unless we inspect the acreage and determine that it does not meet the requirements for insurability contained in your policy.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) Coverage begins on February 1 in California and November 21 for all other states of each crop year, except that for the year of application, if your application is received after January 22 but prior to February 1 in California or after November 11 but prior to November 21 in all other states, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10 day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the orchard.
(2) The calendar date for the end of the insurance period for each crop year is:
(i) July 31 for all apricots; and
(ii) September 30 for all nectarines and peaches;
(iii) In all states except California, September 30 for all fresh plums;
(iv) In California only, October 20 for all fresh plums; or
(v) As otherwise provided for specific counties or types in the Special Provisions.
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date of acquisition.
(2) If you lose or relinquish your insurable share on any insurable acreage of stonefruit on or before the acreage reporting date for the crop year and if the acreage was insured by you the previous crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(c) For each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(d) If your stonefruit policy is canceled or terminated for any crop year, in accordance with the terms of the policy, after insurance attached for that crop year but on or before the cancellation and termination dates, whichever is the later, insurance will not be considered to have attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Wildlife;
(4) Earthquake;
(5) Volcanic eruption; or
(6) Failure of the irrigation water supply, if due to a cause of loss contained in sections 9(a)(1) through (5) that occurs during the insurance period.
(b) In addition to the causes of loss excluded by section 12 of the Basic Provisions, we will not insure against damage or loss of production due to:
(1) Disease or insect infestation, unless adverse weather:
(i) Prevents the proper application of control measures or causes properly applied control measures to be ineffective; or
(ii) Causes disease or insect infestation for which no effective control mechanism is available;
(2) Split pits regardless of cause; or
(3) Inability to market the insured crop for any reason other than actual physical damage from an insurable cause of loss specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
In addition to the requirements of section 14 of the Basic Provisions, the following will apply:
(a) You must notify us within 3 days after the date harvest should have started if the insured crop will not be harvested.
(b) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(c) In addition to section 14 of the Basic Provisions, if you intend to claim an indemnity on any unit, you must give us notice at least 15 days prior to the beginning of harvest. You must not destroy the damaged crop until after we have given you written consent to do so. If you fail to notify us and such failure results in our inability to inspect the damaged production, we may consider all such production to be undamaged and include it as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type by its respective production guarantee;
(2) Multiplying each result of section 11(b)(1) by the respective price election for the type and by the percent of the price election;
(3) Totaling the results of section 11(b)(2) (if there is only one type, the result of (3) will be the same as the result of (2));
(4) Multiplying the total production to count (see section 11(c)), for each type, by the respective price election and by the percent of the price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the result of section 11(b)(5) from the result of section 11(b)(3) (if there is only one type, the result of (6) will be the same as the result of (5)); and
(7) Multiplying the result of section 11(b)(6) by your share.
Scenario 1:
You select 75 percent coverage level and 100 percent of the price election on 50.0 acres of Type A stonefruit with 100 percent share in the unit. The approved yield is 500.0 lugs per acre and the price election is $6.00 per lug. You harvest 5,000 lugs. Your indemnity would be calculated as follows:
(1) 50.0 acres × 500.0 lugs × 0.75 = 18,750-lug production guarantee;
(2) 18,750 lugs × $6.00 price election × 100 percent of the price election = $112,500 value of production guarantee;
(4) 5,000 harvested lugs × $6.00 price election × 100 percent of the price election = $30,000 value of production to count;
(6) $112,500 − $30,000 = $82,500 loss; and
(7) $82,500 × 1.000 share = $82,500 indemnity payment.
Scenario 2:
In addition to the above information in Scenario 1, you have an additional 50.0 acres of Type B stonefruit with 100 percent share in the unit. The approved yield is 300.0 lugs per acre and the price election is $4.00 per lug. You harvest 3,000 lugs. Your indemnity would be calculated as follows:
(1) 50.0 acres × 500.0 lugs × 0.75 Type A = 18,750-lug guarantee; and 50.0 acres × 300.0 lugs × 0.75 Type B = 11,250-lug guarantee;
(2) 18,750 lugs × $6.00 price election × 100 percent of the price election = $112,500 value of guarantee for Type A; and 11,250 lugs × $4.00 price election × 100 percent of the price election = $45,000 value of guarantee for Type B;
(3) $112,500 + $45,000 = $157,500 total value of production guarantee;
(4) 5,000 harvested lugs Type A × $6.00 price election × 100 percent of the price election = $30,000 value of production to count; and 3,000 harvested lugs Type B × $4.00 price election × 100 percent of the price election = $12,000 value of production to count;
(5) $30,000 + $12,000 = $42,000 total value of production to count;
(6) $157,500 − $42,000 = $115,500 total loss; and
(7) $115,500 loss × 1.000 share = $115,500 indemnity payment.
(c) The total production to count (in lugs or tons) from all insurable acres on a unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the requirements contained in section 10;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production that would be marketable if harvested; and
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the insured crop. We will then make another appraisal when you notify us if any further damage or that harvest is general in the area unless you harvested the crop. If you harvest the crop we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested production from the insurable acreage.
(3) The quantity of harvested production will be reduced if the following conditions apply:
(i) The value of the damaged production is less than 75 percent of the marketable value of undamaged production due to an insured cause of loss; and
(ii) For stonefruit insured as fresh fruit only, the stonefruit either is packed and sold as fresh fruit and meets only the utility grade requirements of the applicable grade standards, or fails to meet the applicable grade standards but is or could be sold for any use other than fresh packed stonefruit.
(4) Harvested fresh or processing stonefruit production that is eligible for quality adjustment as specified in section 11(c)(3) will be reduced as follows:
(i) When packed and sold as fresh fruit or when insured as a processing crop, by dividing the value per lug or ton of marketable production by the highest price election for the same type and multiplying the result (not to exceed 1.00) by the quantity of such production; or
(ii) For all other fresh stonefruit, by multiplying the number of tons that could be marketed by the value per ton and dividing that result by the highest price election available for the same type.
The late and prevented planting provisions of the Basic Provisions (§ 457.8) are not applicable.
§ 457.160 Processing tomato crop insurance provisions.
The Processing Tomato Crop Insurance Provisions for the 2005 and succeeding crop years are as follows:
If a conflict exists among the policy provisions, the order of priority is as follows: (1) The Catastrophic Risk Protection Endorsement, if applicable; (2) the Special Provisions; (3) these Crop Provisions; and (4) the Basic Provisions with (1) controlling (2), etc.
Acre. 43,560 square feet of land on which row widths do not exceed 6 feet, or the land on which at least 7,260 linear feet rows are planted if row widths exceed 6 feet.
Broker. An enterprise in the business of buying and selling tomatoes possessing all the licenses and permits required by the state in which it operates, and that has a written contract with a processor to purchase processing tomatoes on behalf of the processor and to deliver such tomatoes to the processor.
Bypassed acreage. Land on which production is ready for harvest but the processor elects not to accept such production so it is not harvested.
First fruit set. The reproductive stage of the plant at which 30 percent of the plants have produced a fruit that has reached a minimum of one inch in diameter.
Good Farming Practices. In addition to the definition of “good farming practices” contained in section 1 of the Basic Provisions, good farming practices include the cultural practices required under the processor contract.
Harvest. The severance of tomatoes from the vines.
Plant stand. The number of plants per acre considered to be normal for the applicable tomato variety and growing area.
Planted acreage. In addition to the definition contained in the Basic Provisions, tomatoes must initially be placed in rows to be considered planted. Acreage planted in any other manner will not be insurable unless otherwise provided by the Special Provisions or by written agreement.
Practical to replant. In lieu of the definition of “Practical to replant” contained in section 1 of the Basic Provisions, practical to replant is defined as our determination, after loss or damage to the insured crop, based on factors, including but not limited to moisture availability, marketing window, condition of the field, and time to crop maturity, that replanting the insured crop will allow the crop to attain maturity prior to the calendar date for the end of the insurance period. It will not be considered practical to replant unless the replanted acreage can produce at least 75% of the approved yield, and the processor agrees in writing that it will accept the production from the replanted acreage.
Processor. Any business enterprise regularly engaged in processing tomatoes for human consumption, that possesses all licenses and permits for processing tomatoes required by the state in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process contracted processing tomatoes within a reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a processor, or between the producer and a broker, containing at a minimum:
(a) The producer’s commitment to plant and grow processing tomatoes, and to deliver the tomato production to the processor or broker;
(b) The processor’s, or broker’s, commitment to purchase all the production stated in the processor contract; and
(c) A price per ton that will be paid for the production.
Ton. Two thousand (2,000) pounds avoirdupois.
(a) Notwithstanding the provisions of this section or any unit division provisions contained in the Basic Provisions, no indemnity will be paid for any loss of production on any unit if the insured produced a crop sufficient to fulfill the processor contracts forming the basis for the guarantee, and any indemnity will be limited to the amount necessary to compensate for loss in yield at the price elected between production to count and the contract requirements.
(b) In California only, in addition to, or instead of, establishing optional units by section, section equivalent or FSA farm serial number and by irrigated and non-irrigated acreage as provided in the unit division provisions contained in the Basic Provisions, optional units may be established if acreage planted to tomatoes is separated by a field that is not planted to tomatoes, or by a permanent boundary such as a permanent waterway, fence, public road or woodland. Such optional unit must consist of the minimum number of acres stated in the Special Provisions. Acreage planted to tomatoes that is less than the minimum number of acres required will attach to the closest unit within the section, section equivalent, or FSA farm serial number.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one price election for all the processing tomatoes in the county insured under this policy unless the Special Provisions provide different price elections by type. The percentage of the maximum price election you choose for one type will be applicable to all other types insured under this policy. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) Liability under this policy will not exceed the number of tons required to be accepted by the processor under a processor contract in effect on or before:
(1) The earlier of August 20 or the date of damage to the insured crop in all counties with an acreage reporting date of July 15; or
(2) The earlier of the acreage reporting date or the date of damage in all other counties. (Exclude indemnities that occur in stage one and replant payments.)
(c) The price election used to determine the amount of an indemnity is progressive by stage and increases, at specified intervals, to the price used for final stage losses. Stages will be determined on an acre basis. The stages and applicable price elections are:
(1) First stage is from planting until first fruit set. If any acreage of the insured crop is destroyed in this stage, the price used to establish the amount of any indemnity owed for such acreage will be 50 percent of your price election;
(2) Second stage is from the first fruit set until harvest. If any acreage of the insured crop is destroyed in this stage, the price used to establish the amount of any indemnity owed for such acreage will be 80 percent of your price election; and
(3) Third stage (final stage) is harvested acreage. The price election used in this stage to establish the amount of any indemnity owed will be 100 percent of your price election.
(d) Any acreage of tomatoes damaged to the extent, that the majority of producers in the area would not normally further care for the tomatoes, will be deemed to have been destroyed even though you may continue to care for it. The price election used to determine the amount of an indemnity will be that applicable to the stage in which the tomatoes were destroyed.
(e) The appraised production from bypassed acreage that could have been accepted by the processor will be included when determining your approved yield.
(f) Acreage that is bypassed because it was damaged by an insurable cause of loss to the extent that the processor cannot use the product will be considered to have a zero yield when determining your approved yield.
In accordance with section 4 of the Basic Provisions, the contract change date is August 31 preceding the cancellation date for California and November 30 preceding the cancellation date for all other states.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are January 15 in California and March 15 in all other states.
In addition to the provisions of section 6 of the Basic Provisions, you must provide a copy of all processor contracts to us on or before the acreage reporting date in all counties, unless otherwise specified in the Special Provisions.
In lieu of the premium amount determinations contained in section 7 of the Basic Provisions, the annual premium amount per acre is determined by multiplying the production guarantee per acre by the price election for the third (final) stage; by the premium rate; by the insured acreage; by the applicable share at the time of planting; and ultimately by any applicable premium adjustment factors contained in the actuarial documents.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the tomatoes in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvest as processing tomatoes;
(3) That are grown under, and in accordance with, the requirements of a processor contract executed on or before August 20 in all counties with an acreage reporting date of July 15, or on or before the acreage reporting date in all other counties, and are not excluded from the processor contract for or during the crop year; and
(4) That are not (unless allowed by the Special Provisions or by written agreement):
(i) Grown on acreage on which tomatoes were grown in either of the two previous years, except in California;
(ii) Interplanted with another crop; or
(iii) Planted into an established grass or legume.
(b) You will be considered to have a share in the insured crop if, under the processor contract, you retain control of the acreage on which the tomatoes are grown, you are at risk of loss, and the processor contract provides for delivery of processing tomatoes under specified conditions and at a stipulated price.
(c) A tomato producer who is also a processor or broker may establish an insurable interest if the following requirements are met:
(1) The processor or broker, as applicable, must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or officers of the processor or the broker must execute and adopt a resolution that contains the same terms as an acceptable processor contract. (Such resolution will be considered a processor contract under this policy); and
(3) As applicable, our inspection reveals that the processing facilities comply with the definition of a processor contained in these Crop Provisions.
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final planting date, to the extent that the majority of producers in the area would normally not further care for the crop, must be replanted unless we agree that it is not practical to replant; and
(b) We will not insure any acreage that does not meet the rotation requirements, if applicable, contained in the Special Provisions.
In lieu of the provisions contained in section 11 of the Basic Provisions, regarding the end of the insurance period, insurance ceases at the earlier of the date:
(a) You harvest sufficient production to fulfill your processor contract if the processor contract stipulates a specific amount of production to be delivered;
(b) The tomatoes should have been harvested but was not harvested;
(c) The tomatoes were abandoned;
(d) Harvest was completed;
(e) Final adjustment of a loss was completed; or
(f) The following calendar date for the end of the insurance period
(1) October 20 in California; and
(2) October 10 in all other states.
In accordance with the provisions of section 12 of the Basic Provisions:
(a) Insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions, including:
(i) Excessive moisture that prevents the harvesting equipment from entering the field or that prevents the timely operation of harvesting equipment; and
(ii) Abnormally hot or cold temperatures that cause an unexpected number of acres over a large producing area to be ready for harvest at the same time, affecting the timely harvest of a large number of such acres or the processing of such production being beyond the capacity of the processor, either of which causes the acreage to be bypassed;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if due to a cause of loss contained in sections 11(a)(1) through (7) that occurs during the insurance period.
(b) In addition to the causes of loss excluded by section 12 of the Basic Provisions, we will not insure against any loss of production due to:
(1) Acreage being bypassed, if the acreage is bypassed because:
(i) The breakdown or non-operation of equipment or facilities; or
(ii) The availability of a crop insurance payment. We may deny any indemnity immediately in such circumstance or, if an indemnity has been paid, require you to repay it to us with interest at any time acreage was bypassed due to the availability of a crop insurance payment;
(2) The processing tomatoes not being timely harvested, unless such delay in harvesting is solely and directly due to an insured cause of loss; or
(3) Your failure to follow the requirements contained in the processor contract.
(a) In accordance with section 13 of the Basic Provisions, a replanting payment is allowed if the crop sustained a loss exceeding 50 percent of the plant stand and it is practical to replant.
(b) The maximum amount of the replanting payment per acre will be determined as follows:
(1) The amount shown on the Special Provisions multiplied by your share; or
(2) If an amount is not contained in the Special Provisions, the lesser of 20 percent of the production guarantee or three tons, multiplied by your third stage (final) price election, multiplied by your share; and
(3) In no event will the replanting payment per acre exceed your actual cost of replanting.
In addition to the notice required by section 14 of the Basic Provisions, you must give us notice:
(a) Not later than 48 hours after:
(1) Total destruction of the tomatoes in the unit; or
(2) Discontinuance of harvest on a unit on which unharvested production remains;
(b) Within 3 days after the date harvest should have started on any acreage that will not be harvested. You must also provide acceptable documentation of the reason the acreage was bypassed. Failure to provide such documentation will result in our determination that the acreage was bypassed due to an uninsured cause of loss. If the crop will not be harvested and you wish to destroy the crop, you must leave representative samples of the unharvested crop for our inspection. The samples must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be destroyed until the earlier of our inspection or 15 days after notice is given to us; and
(c) At least 15 days prior to the beginning of harvest if you intend to claim an indemnity on any unit, or immediately if damage is discovered during the 15 day period or during harvest, so that we may inspect the damaged production. If you fail to notify us and such failure results in our inability to inspect the damaged production, we will consider all such production to be undamaged and include it as production to count. You are not required to delay harvest.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee, by type if applicable;
(2) Multiplying each result of section 14(b)(1) by the respective price election, by type if applicable;
(3) Totaling the results of section 14(b)(2) if there are more than one type;
(4) Multiplying the total production to counted (see section 14(c)), for each type if applicable, by its respective price election;
(5) Totaling the results of section 14(b)(4) if there are more than one type;
(6) Subtracting the result of section 14(b)(4) from the result of section 14(b)(2) if there is only one type or subtracting the result of section 14(b)(5) from the result of section 14(b)(3) if there are more than one type; and
(7) Multiplying the result of section 14(b)(6) by your share.
You have a 100 percent share in 50 acres of type A processing tomatoes in the unit, with a guarantee of 18.8 tons per acre and a price election of $50.00 per ton. You are only able to harvest 10.0 tons. Your indemnity would be calculated as follows:
(1) 50.0 acres × 18.8 tons = 940.0 tons guarantee;
(2) 940.0 tons × $50.00 price election = $47,000.00 value guarantee;
(4) 10.0 tons × $50.00 price election = $500.00 value of production to count;
(6) $47,000.00 − $500.00 = $46,500.00 loss; and
(7) $46,500 × 100 percent = $46,500.00 indemnity payment.
You also have a 100 percent share in 50 acres of type B processing tomatoes in the same unit, with a guarantee of 15.0 tons per acre and a price election of $35.00 per ton. You are only able to harvest 5.0 tons. Your total indemnity for both types A and B would be calculated as follows:
(1) 50.0 acres × 18.8 tons = 940.0 ton guarantee for type A and 50.0 acres × 15.0 tons = 750.0 ton guarantee for type B;
(2) 940.0 ton guarantee × $50.00 price election = $47,000.00 value of guarantee for type A and 750.0 ton guarantee × $35.00 = $26,500.00 value of guarantee for type B;
(3) $47,000.00 + $26,500.00 = $72,500.00 total value of guarantee;
(4) 10.0 tons × $50.00 price election = $500.00 value of production to count for type A and 5.0 tons × $35.00 price election = $175.00 value of production to count for type B;
(5) $500.00 + $175.00 = $675.00 total value of production to count;
(6) $72,500.00 − $675.00 = $71,575.00 loss; and
(7) $71,575 loss × 100 percent = $71,575.00 indemnity payment.
(c) The total production to count, specified in tons, from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us.
(ii) Production lost due to uninsured causes;
(iii) Production on acreage that is bypassed unless the acreage was bypassed due to an insured cause of loss which resulted in production which would not be acceptable under the terms of the processor contract;
(iv) Potential production on insured acreage that you intend to put to another use or abandoned, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us, (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested;
(2) All harvested production (in tons) delivered to the processor which meets the quality requirements of the processor contract (expressed as usable or payable weight).
(3) All harvested tomato production delivered to processor which does not meet the quality requirements of the processor contract due to not being timely delivered.
(d) Once harvest has begun on any acreage covered by a processor contract that specifies the number of tons to be delivered, the total indemnity payable will be limited to an amount based on the lesser of the guaranteed tons, or the tons remaining unfulfilled under the processor contract.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.161 Canola and rapeseed crop insurance provisions.
The Canola and Rapeseed Crop Insurance Provisions for the 2021 and succeeding crop years are as follows:
Canola. A crop of the genus Brassica as defined in accordance with the Official United States Standards for Grain – Subpart C – U.S. Standards for Canola.
Harvest. Combining or threshing for seed. A crop that is swathed or pushed prior to combining is not considered harvested.
Latest final planting date. (a) The final planting date for spring-planted acreage in all counties for which the Special Provisions designate a final planting date for spring-planted acreage only;
(b) The final planting date for fall-planted acreage in all counties for which the Special Provisions designate a final planting date for fall-planted acreage only; or
(c) The final planting date for spring-planted acreage in all counties for which the Special Provisions designate final planting dates for both spring-planted and fall-planted acreage.
Local market price (Canola). The cash price per pound for U.S. No. 2 grade canola that reflects the maximum limits of quality deficiencies allowable for the U.S. No. 2 grade canola.
Planted acreage. In addition to the definition contained in the Basic Provisions, land on which seed is initially spread onto the soil surface by any method and subsequently is mechanically incorporated into the soil in a timely manner and at the proper depth will be considered planted. Acreage planted in any other manner will not be insurable unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Prevented planting. As defined in the Basic Provisions, except that the references to “final planting date” contained in the definition in the Basic Provisions are replaced with the “latest final planting date.”
Price of damaged production. The cash price per pound available if the production were sold for canola that qualifies for quality adjustment in accordance with section 12 of these crop provisions.
Pushed. Mechanical bending of the stem prior to maturity that leaves the stems and pods intact to ripen naturally while being protected from weather events.
Rapeseed. A crop of the genus Brassica that contains at least 30 percent of an industrial type of oil as shown on the Special Provisions and that is measured on a basis free from foreign material.
Swathed. Severance of the stem and seed pods from the ground and placing into windrows without removal of the seed from the pod.
In addition to optional units by section, section equivalent or FSA farm serial number and by irrigated and non-irrigated practices, optional units may be by type if the type is designated on the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You must elect to insure your canola and rapeseed with either revenue protection or yield protection by the sales closing date; and
(b) In counties with both fall and spring sales closing dates for the insured crop:
(1) If you do not have any insurable fall planted acreage of the insured crop, you may change your coverage level, or your percentage of projected price (if you have yield protection), or elect revenue protection or yield protection, until the spring sales closing date; or
(2) If you have any insurable fall planted acreage of the insured crop, you may not change your coverage level, or your percentage of projected price (if you have yield protection), or elect revenue protection or yield protection, after the fall sales closing date.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date for counties with a March 15 cancellation date, and June 30 preceding the cancellation date for all other counties.
The cancellation and termination dates are as follows, unless otherwise specified in the actuarial documents:
| State and county | Cancellation date | Termination date |
|---|---|---|
| All counties in Alabama and Georgia | September 30 | September 30. |
| Blaine, Bonneville, Fremont, Jefferson, Madison, and Teton counties Idaho; and all counties in Minnesota, Montana, and North Dakota | March 15 | March 15. |
| All counties in Illinois, Indiana, Kansas, Kentucky, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia | August 31 | August 31. |
| All other Idaho counties, Oregon, and Washington | August 31 | October 31. |
In accordance with section 8 of the Basic Provisions, the crop insured will be all canola and rapeseed in the county for which a premium rate is provided by the actuarial table:
(a) In which you have a share;
(b) That is planted for harvest as seed; and
(c) That is not, unless allowed by Special Provisions or by written agreement:
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage that does not meet the rotation requirements contained in the Special Provisions;
(b) Whenever the Special Provisions designate only a fall final planting date, any acreage of canola or rapeseed damaged before such final planting date, to the extent that growers in the area would normally not further care for the crop, must be replanted to a fall type of the insured crop unless we agree that replanting is not practical;
(c) Whenever the Special Provisions designate both fall and spring final planting dates:
(1) Any fall canola or rapeseed that is damaged before the spring final planting date, to the extent that growers in the area would normally not further care for the crop, must be replanted to a fall type of the insured crop to maintain insurance based on the fall type unless we agree that replanting is not practical. If it is not practical to replant to the fall type of canola or rapeseed but is practical to replant to a spring type, you must replant to a spring type to keep your insurance based on the fall type in force; and
(2) Any fall canola or rapeseed acreage that is replanted to a spring type of the same crop when it was practical to replant the fall type will be insured as the spring type and the production guarantee, premium, projected price, and harvest price applicable to the spring type will be used. In this case, the acreage will be considered to be initially planted to the spring type; and
(d) Whenever the Special Provisions designate a spring final planting date, any acreage of spring canola or rapeseed damaged before such final planting date, to the extent that growers in the area would normally not further care for the crop, must be replanted to a spring type of the insured crop unless we agree that replanting is not practical; or
(e) Whenever the Special Provisions designate only a spring final planting date, any acreage of fall planted canola or rapeseed is not insured unless you request such coverage on or before the spring sales closing date, and we determine in writing that the acreage has an adequate stand in the spring to produce the yield used to determine your production guarantee. However, if we fail to inspect the acreage by the spring final planting date, insurance will attach as specified in section 7(e)(3):
(1) Your request for coverage must include the location and number of acres of fall planted canola or rapeseed;
(2) The fall planted canola or rapeseed will be insured as a spring type for the purpose of the production guarantee, premium, projected price, and harvest price, if applicable;
(3) Insurance will attach to such acreage on the date we determine an adequate stand exists or on the spring final planting date if we do not determine adequacy of the stand by the spring final planting date;
(4) Any acreage of such fall planted canola or rapeseed that is damaged after it is accepted for insurance but before the spring final planting date, to the extent that growers in the area would normally not further care for the crop, must be replanted to a spring type of the insured crop unless we agree it is not practical to replant; and
(5) If fall planted acreage is not to be insured it must be recorded on the acreage report as uninsured fall planted acreage.
In accordance with the provisions of section 11 of the Basic Provisions, the calendar date for the end of the insurance period is October 31 of the calendar year in which the crop is normally harvested.
In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss which occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption;
(h) Failure of the irrigation water supply due to a cause of loss specified in sections 9(a) through (g) that also occurs during the insurance period; or
(i) For revenue protection, a change in the harvest price from the projected price, unless FCIC can prove the price change was the direct result of an uninsured cause of loss specified in section 12(a) of the Basic Provisions.
(a) A replanting payment is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that limit the amount of a replant payment to the actual cost of replanting, the amount of any replanting payment will be determined in accordance with these Crop Provisions;
(2) Except as specified in section 10(a)(1), you must comply with all requirements regarding replanting payments contained in section 13 of the Basic Provisions;
(3) The insured crop must be damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage; and
(4) The replanted crop must be seeded at a rate sufficient to achieve a total (undamaged and new seeding) plant population that is considered appropriate by agricultural experts for the insured crop, type and practice.
(b) Unless otherwise specified in the Special Provisions, the amount of the replanting payment per acre will be the lesser of 20 percent of the production guarantee or 175 pounds, multiplied by your projected price, multiplied by your share.
(c) When the crop is replanted using a practice that is uninsurable for an original planting, the liability on the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
(d) Replanting payments will be calculated using your projected price and your production guarantee for the crop type that is replanted and insured.
(1) For example, if damaged Spring Oleic Canola is replanted to Spring High Erucic Rapeseed, your projected price applicable to Spring High Erucic Rapeseed will be used to calculate any replanting payment that may be due. A revised acreage report will be required to reflect the replanted type.
(2) Notwithstanding section 10(d)(1), the following will have a replanting payment based on your production guarantee and your projected price for the crop type initially planted:
(i) Any damaged winter crop type that is replanted to a spring crop type, but that retains insurance based on the winter crop type; and
(ii) Any acreage replanted at a reduced seeding rate into a partially damaged stand of the insured crop.
Representative samples are required in accordance with section 14 of the Basic Provisions.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) Basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the number of insured acres of each type, as applicable, by your respective:
(i) Yield protection guarantee (per acre) if you elected yield protection; or
(ii) Revenue protection guarantee (per acre) if you elected revenue protection;
(2) Totaling the results of section 12(b)(1)(i) or 12(b)(1)(ii), whichever is applicable;
(3) Multiplying the production to count of each type, as applicable, by your respective:
(i) Projected price if you elected yield protection; or
(ii) Harvest price if you elected revenue protection;
(4) Totaling the results of section 12(b)(3)(i) or 12(b)(3)(ii), whichever is applicable;
(5) Subtracting the result of section 12(b)(4) from the result of section 12(b)(2); and
(6) Multiplying the result of section 12(b)(5) by your share.
For example:
You have 100 percent share in 50 acres of canola in the unit with a production guarantee (per acre) of 650 pounds, your projected price is $.1220, your harvest price is $.1110, and your production to count is 31,000 pounds.
If you elected yield protection:
(1) 50 acres × (650 pound production guarantee × $.1220 projected price) = $3,965.00 value of the production guarantee
(3) 31,000 pound production to count × $.1220 projected price = $3,782.00 value of the production to count
(5) $3,965.00−$3,782.00 = $183.00
(6) $183.00 × 1.000 share = $183.00 indemnity; or
If you elected revenue protection:
(1) 50 acres × (650 pound production guarantee × $.1220 projected price) = $3,965.00 revenue protection guarantee
(3) 31,000 pound production to count × $.1110 harvest price = $3,441.00 value of the production to count
(5) $3,965.00−$3,441.00 = $524.00
(6) $524.00 × 1.000 share = $524.00 indemnity.
(c) The total production to count (pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) For yield protection, not less than the production guarantee and for revenue protection, not less than the amount of production that when multiplied by the harvest price equals the revenue protection guarantee (per acre) for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with section 12(d)); and
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature canola may be adjusted for excess moisture and quality deficiencies. Mature rapeseed may be adjusted for excess moisture only. If moisture adjustment is applicable, it will be made prior to any adjustment for quality.
(1) Canola and rapeseed production will be reduced by 0.12 percent for each 0.1 percentage point of moisture in excess of 8.5 percent. We must be permitted to obtain samples of the production to determine the moisture content.
(2) Canola production will be eligible for quality adjustment if:
(i) Deficiencies in quality, in accordance with the Official United States Standards for Grain, result in the canola not meeting the grade requirements for U.S. No. 3 or better (U.S. Sample grade) because of kernel damage (excluding heat damage), or a musty, sour, or commercially objectionable foreign odor; or
(ii) Substances or conditions are present that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss in canola production only if:
(i) The deficiencies, substances, or conditions resulted from a cause of loss against which insurance is provided under these Crop Provisions and which occurs within the insurance period;
(ii) The deficiencies, substances, or conditions result in a net price for the damaged production that is less than the local market price;
(iii) All determinations of these deficiencies, substances, or conditions are made using samples of the production obtained by us or by a disinterested third party approved by us;
(iv) With regard to deficiencies in quality, the samples are analyzed by:
(A) A grain grader licensed under the United States Grain Standards Act or the United States Warehouse Act;
(B) A grain grader licensed under State law and employed by a warehouse operator who has a storage agreement with the Commodity Credit Corporation; or
(C) A grain grader not licensed under State law, but who is employed by a warehouse operator who has a commodity storage agreement with the Commodity Credit Corporation and is in compliance with State law regarding warehouses; and
(v) With regard to substances or conditions injurious to human or animal health, the samples analyzed by a laboratory approved by us.
(4) Canola production that is eligible for quality adjustment, as specified in sections 12(d)(2) and (3), will be reduced in accordance with the quality adjustment factors contained in the Special Provisions.
(e) Any production harvested from plants growing in the insured crop may be counted as production of the insured crop on an unadjusted weight basis.
In lieu of section 16(a) of the Basic Provisions, the production guarantee for each acre planted to the insured crop during the late planting period will be reduced by 1 percent per day for each day planted after the final planting date unless otherwise specified in the Special Provisions.
In counties for which the Special Provisions designate a spring final planting date, your prevented planting production guarantee will be based on your approved yield for spring-planted acreage of the insured crop. Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.162 Nursery crop insurance provisions.
The Nursery Crop Insurance Provisions for the 2019 and succeeding crop years are as follows:
American Standard for Nursery Stock. A publication of the American Nursery and Landscape Association, or a subsequent successor organization, issued in accordance with the rules of the American National Standards Institute, Inc. that provides common terminology and standards for nurseries.
Amount of insurance. For the purposes of calculating premium, the result of multiplying the basic unit value by your selected coverage level and by your share. For the purpose of determining the amount of any indemnity, the result of multiplying the basic unit value by your selected coverage level and by your share minus any previous indemnities during the crop year paid under these Crop Provisions.
Basic unit value. The full inventory value of all insurable plants in a basic unit declared on your original or revised PIVR and a Peak Inventory Value Report, if applicable.
Catalog. Any document, including but not limited to printed discount schedules, issued by your nursery and used to advise actual and/or potential buyers of the amount you are charging for purchases of each plant included in the inventory.
(1) Such documents may be issued by season, by plant type, or other basis consistent with your business practices.
(2) The documents can be in any form, but must meet the minimum standards contained in section 6(j), except that the printed discount schedules do not have to be provided to customers.
Container grown. A nursery production practice in which plants are grown in standard nursery containers: above the ground; placed in the ground; or when placed in another standard nursery container in the ground (i.e., pot-in-pot).
Crop Inventory Valuation Report (CIVR). A plant inventory list created on the Nursery Inventory Software for assisting in establishing the insurable nursery plant inventory value.
Crop year. The period beginning the day insurance attaches and extending until the following May 31. Crop year is designated by the year in which the insurance period ends.
Crop year deductible. The basic unit value multiplied by the deductible minus the amount of any previously-incurred deductible if you have reported each loss to us in accordance with section 11(a)(2). The crop year deductible will be increased for any increases in the inventory value on the PIVR or through the purchase of a Peak Inventory Endorsement, if in effect at the time of loss.
Eligible Plant List and Plant Price Schedule (EPLPPS). A component of the actuarial documents that is published by FCIC on RMA’s website and is also available on compact disk from your crop insurance agent. The EPLPPS contains the following information:
(1) The botanical and common names of insurable plants;
(2) The cold protection requirements for container grown material and the areas in which they apply;
(3) The hardiness zone in which field grown material is insurable;
(4) The designated hardiness zones available for each county;
(5) The plant type, storage key, and hardiness zone classification for each plant on the list; and
(6) A schedule of insurable plant prices that establishes the highest value accepted for insurance purposes unless otherwise allowed by the policy or an endorsement to the policy.
Fabric grow bag. A fabric bag (including a woven or matted bag with a plastic or fabric bottom) used for growing plants in-ground or as an above-ground nursery plant container that provides adequate drainage and is appropriate in size for the plant.
Field grown. A nursery production practice in which plants are grown in the ground. Plants grown in in-ground fabric grow bags, plants that are balled and burlapped, or plants grown in containers that allow the plants to root (excluding fibrous roots) into the ground (for example, a container without a bottom) are also considered field grown.
Field market value A (FMVA). Our determination of the value of all insurable plants in the basic unit immediately prior to the occurrence of a loss event. This value will be determined in accordance with the requirements of section 6 of these Crop Provisions. For liners, the total value of undamaged liners is multiplied by the survival factor to determine the value of undamaged insurable plants.
Field market value B (FMVB). Our determination of the value of all damaged and undamaged insurable plants in the basic unit following the occurrence of a loss event. This value will be determined in accordance with the requirements of section 6 of these Crop Provisions with an adjustment for the amount of damage we determine the plants have sustained.
Good nursery practices. In addition to the definition of “good farming practices” contained in section 1 of the Basic Provisions, the horticultural practices generally in use in the area for nursery plants to make normal progress toward the stage of growth at which marketing can occur and: (1) For conventional practices, generally recognized by agricultural experts for the area as compatible with the nursery plant production practices and weather conditions in the county; or (2) for organic practices, generally recognized by the organic agricultural industry for the area as compatible with the nursery plant production practices and weather conditions in the county or contained in the organic plan. We may, or you may request us to, contact FCIC to determine whether or not production methods will be considered to be “good nursery practices.”
Irrigated practice. In lieu of the definition in the Basic Provisions, the application of water, using appropriate systems and at the proper times, to provide the quantity of water needed to sustain normal growth of your insured plant inventory and provide cold protection for applicable plants as specified in the EPLPPS.
Liners. Plants produced in standard nursery containers that have a minimum dimension greater than or equal to
Loss. FMVA minus FMVB, as adjusted by any under-report factor or over-report factor. Payments made under the Rehabilitation Endorsement are not considered to be a loss.
Lowest price. The lesser of the minimum price stated in your catalog or the price contained in the EPLPPS for a plant and its size. The minimum price in your catalog is the lowest price at which you will sell that plant and size to any buyer, including all incremental volume discounts or any other discounting factor.
Marketable. A plant that can be sold in a customary or secondary market for a non-zero value.
Monthly proration factors. Factors contained in the actuarial documents that are used to calculate premium when you do not insure the nursery plants for an entire crop year.
Nursery. A business enterprise that grows the nursery plants. At least 40 percent of its gross income derived from plant sales must be from the wholesale marketing of such plants.
Occurrence deductible. This deductible allows a smaller deductible than the crop year deductible to be used when FMVA is more or less than the reported basic unit value. The occurrence deductible is the lesser of:
(1) The deductible multiplied by FMVA and:
(i) In under-report situations, multiplied by the under-report factor; or
(ii) In over-report situations, multiplied by the sum of 1.000 plus the over-report factor; or
(2) The crop year deductible.
Over-report factor. The factor that adjusts your indemnity for over-reporting of inventory values. This factor is used to determine indemnities when the basic unit value minus the total of all previous losses is more than 110 percent of FMVA for the same basic unit plus the insured value of plants listed on the verifiable sales records. The over-report factor is calculated by:
(1) The basic unit value minus the total of all previous losses;
(2) FMVA plus the insured value of plants listed on the verifiable sales records;
(3) Dividing the result of paragraph (1) of this definition by the result of paragraph (2) of this definition; and
(4) Subtracting 1.100 from the result of paragraph (3) of this definition.
(5) If the result of paragraph (4) of this definition is greater than 0.000, then the result of paragraph (4) is the over-report factor that is applied.
PIVR. The plant inventory value report, your report that declares the value of insurable plants in accordance with section 6.
Practice. A cultural method of producing plants identified in the actuarial documents.
Restock. Replacement of lost or damaged plants that increases the value of the insurable inventory to an amount greater than the remaining amount of insurance.
Sales closing date. In lieu of the definition in section 1 of the Basic Provisions, the date shown in the Special Provisions. New-policy applications may be filed at any time. However, all applications, including those for new or amended coverage, are subject to a 30-day waiting period before commencement of coverage as specified in sections 3(d) and 9(a) of these Crop Provisions.
Standard nursery containers. Rigid containers that have a minimum dimension greater than or equal to
Stock plants. Plants used solely for propagation during the insurance period.
Survival factor. A value specified in the Special Provisions that denotes the expected percentage of liners that normally survive the period from insurance attachment to market.
Under-report factor. The factor that adjusts your indemnity for under-reporting of inventory values. The factor is always used in determining indemnities. For each basic unit, the under-report factor is the lesser of:
(1) 1.000; or
(2) The basic unit value minus the total of all previous losses; and dividing that result by FMVA.
Wholesale. To sell nursery plants in large quantities at a price below that offered on low-quantity sales to retailers, commercial users, governmental end-users, or other end-users for business purposes (e.g. sales to landscape contractors and commercial fruit producers). This determination will be based on a county-by-county basis.
(a) If you elect additional coverage for a practice, a basic unit, as defined in section 1 of the Basic Provisions, may be divided into additional basic units by:
(1) Each insurable plant type for which a premium rate is provided by the actuarial documents; or
(2) For the field grown practice only, non-contiguous land. Basic units by non-contiguous land for the container grown practice may be allowed if provided for in the Special Provisions.
(b) Only the plant types listed in the actuarial documents are insurable.
(a) The production reporting requirements contained in section 3 of the Basic Provisions are not applicable.
(b) In addition to the requirements of section 3 of the Basic Provisions, you may select either catastrophic risk protection or additional coverage for each insured practice. An administrative fee established in accordance with section 7(e) of the Basic Provisions will be owed for each practice insured.
(c) In lieu of section 3(b) of the Basic Provisions:
(1) If you select additional coverage for a practice:
(i) You may select one coverage level for each plant type insured in that practice if you elect basic units by plant type;
(ii) You will receive 100 percent of the price election for all plant types in that practice;
(iii) You must provide on the application a coverage level percentage for each plant type that will be insured; and
(iv) You must select a coverage level if:
(A) A new plant is added under a revised PIVR or Peak Inventory Value Report, if applicable; and
(B) The new plant is not categorized under a plant type reported on the initial PIVR or Peak Inventory Value Report, if applicable.
(2) If you select catastrophic risk protection for a practice, all plant types under the practice must be insured at the catastrophic risk protection level.
(d) In lieu of section 3(d) of the Basic Provisions, you may request changes to the coverage level for a plant type by submitting them in writing to us as follows:
(1) For new policies, changes cannot be made for the crop year after the date of the application; and
(2) For carryover policies:
(i) Changes must be requested on or before the sales closing date; and
(ii) Unless we reject the proposed increase because a loss occurs within 30 days of the date the request is made (rejection can occur at any time we discover such loss has occurred), requested changes will take effect on the date of the start of the crop year.
(e) If you restock your nursery plant inventory, you may increase your amount of insurance in accordance with section 6(f).
In accordance with section 4 of the Basic Provisions, the contract change date is January 31 of each crop year.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are May 31 preceding the crop year.
(a) Section 6 of the Basic Provisions is not applicable.
(b) You must submit a separate PIVR for each insured practice, as applicable, and two copies of your most recent catalog to us with your application and on or before the sales closing date for each crop year following the year of application. If you elected basic units by non-contiguous land, you must also submit a separate PIVR for each non-contiguous land unit within the insured practice, and keep all records separate by unit.
(1) You will be notified in writing on or before the end of the 30-day waiting period if an application for insurance is rejected because the inspection determines you do not meet the insurability requirements or the PIVR, catalog, or supporting documentation (if requested by us) is not acceptable.
(2) If you fail to provide a PIVR or catalog on or before the sales closing date for any crop year, insurance will not attach until the 31st day after all such documents have been received by your crop insurance agent and we will not be liable for any losses that occur before insurance has attached.
(c) The PIVR must include, by basic unit, all growing locations, basic unit value, coverage level selected, as applicable, and your share.
(1) If you do not elect additional basic units by plant type, or additional basic units by non-contiguous land, or if you elect catastrophic risk protection coverage, the inventory values for each plant type in the basic unit must be separately reported on the PIVR and totaled to determine the basic unit value.
(2) At our option, you will be required to provide documentation in support of your PIVR, including, but not limited to the following:
(i) A detailed plant inventory listing that includes the name, the number, and the size of each plant, or a CIVR;
(ii) Acceptable records of sales and purchases of plants for the three previous crop years in the amount of detail we require. Acceptable records must contain the name and telephone number of the purchaser or seller, as applicable, names of the plants, the number of each plant sold or purchased, and the sales price for each plant; and
(iii) Your ability to properly obtain and maintain nursery plants.
(3) If you fail to provide the requested documentation:
(i) Before insurance attaches, your insurance will be denied for the crop year for any basic units for which you did not provide such documentation. This provision does not apply to:
(A) Plant varieties you have not previously grown; or
(B) New nurseries where an inspection has determined you have the ability to properly obtain and maintain the nursery plants.
(ii) After insurance attaches, you will still owe premium, but you will not receive an indemnity for any basic units for which you did not provide such documentation. This provision does not apply to:
(A) Plant varieties you have not previously grown; or
(B) New nurseries where an inspection has determined you have the ability to properly obtain and maintain the nursery plants.
(4) If you provide inadequate documentation (i.e., documentation that does not support the amount for which you reported) after insurance attaches for each basic unit, your insurance will not be denied for the crop year. However, your failure to provide adequate documentation may result in a reduction in your indemnity for each basic unit where inadequate documentation was provided.
(5) For policies insured at the catastrophic risk protection level, you must report, on the PIVR for each practice insured, your greatest plant sales in any of the previous three years and the actual inventory value on the date insurance attaches. For each applicable practice, the total of your basic unit values cannot exceed 110 percent of the higher of your:
(i) Greatest amount of plant sales in any of the previous three years; or
(ii) Actual inventory value on the date insurance attaches
(d) Your PIVR, including any revised report, and your Peak Inventory Value Report, if applicable, will be used to determine your premium and amount of insurance.
(e) Your PIVR must reflect your insurable basic unit value.
(1) The basic unit value you report on your PIVR must be based on the lowest price for each plant size included in the inventory. The inventory value of insured liners must be multiplied by the survival factor.
(2) In no instance will we be liable for plant values greater than those contained in the EPLPPS.
(3) If you have previously made a claim and the loss adjuster is unable to determine whether a plant was damaged prior to submission of your PIVR for the current crop year, the plant will be insurable at full value based on the lesser of the Eligible Plant List price or the catalog or price list price. The value of the plant may be reduced at any time during the crop year if the extent of damage is discovered.
(f) You may increase your reported inventory value for each basic unit no more than twice during the crop year by submitting a revised PIVR prior to 30 days before the end of such crop year.
(1) Any requested increase must be made in writing and meet all the requirements of the original PIVR.
(2) We will perform an inspection of the nursery to determine if adequate and acceptable facilities exist to accommodate the requested increased inventory value when the total of all the basic unit values contained on the revised PIVR or Peak Inventory Value Report, if applicable, is increased 50 percent or more from the previous total of all the basic unit values on the PIVR, and the increase is not due to restocking subsequent to an insured loss.
(3) At our discretion, we may inspect the nursery to determine if adequate and acceptable facilities exist to accommodate the requested increased inventory value if an increase of less than 50 percent is reported on the revised PIVR or Peak Inventory Value Report, if applicable.
(4) Your revised PIVR will be considered accepted by us and insurance will attach on any proposed increase in inventory value 30 days after your written request is received unless we reject the proposed increase in your plant inventory value in writing.
(5) We will reject any requested increase if a loss occurs within 30 days of the date the request is made (rejection can occur at any time we discover such loss has occurred).
(6) You cannot revise your PIVR to decrease the plant inventory value after the start of the insurance period specified in section 9.
(7) Notwithstanding section 6(f), if you have suffered an insured loss on a basic unit and have restocked the nursery, then you are allowed to increase your reported inventory value for the basic unit one additional time by submitting a revised PIVR.
(g) For insurable plants that were damaged prior to the attachment of insurance coverage:
(1) The applicable price, as determined in accordance with section 6(e), will be reduced for inventory reporting purposes if we accept such plants for insurance coverage;
(2) The insurable value of such plants will be removed from the applicable basic unit value reported on the PIVR if they are not accepted;
(3) The procedure for calculating the insurable value of damaged plants that are accepted for coverage is contained in the Special Provisions.
(h) You must report the full value of each basic unit value in accordance with section 6(e). Failure to report the full value of each basic unit value will result in the reduction of any claim in accordance with section 12(d).
(i) Insurable plants in over-sized containers will be valued for purposes of reporting inventory and loss adjustment as if the plants were in appropriate-sized containers in accordance with the standards contained in the current American Standard for Nursery Stock. Each cell in a multiple-cell container is considered a separate container. (See the EPLPPS on RMA’s websitefor additional information and requirements on container specifications and volume calculation.)
(j) At a minimum, your catalog must meet the following standards:
(1) Be type-written and legible;
(2) Show an issue date on the cover page (may be handwritten);
(3) Contain the name, address, and phone number of your nursery;
(4) Be provided to customers (except printed discount schedules) and used in the sale of your plants; and
(5) List each plant’s name (botanical or common), plant or container size, and wholesale price.
(a) In lieu of section 7(c) of the Basic Provisions, we will determine your premium by multiplying the amount of insurance by the appropriate premium rate, any premium adjustment factor, and the monthly proration factor contained in the actuarial documents. If you elect catastrophic risk protection coverage, this calculation must also be multiplied by fifty-five percent.
(b) In addition to the provisions in section 7 of the Basic Provisions, we will prorate your premium based on:
(1) The time remaining in the crop year after insurance attaches:
(i) If you have made application after the start of the insurance period specified in section 9; or
(ii) If you submit a PIVR or catalog after the sales closing date;
(2) The time remaining in the crop year after insurance attaches and the additional amount of inventory reported, if you submit a revised PIVR to report an increase in inventory value for a basic unit; and
(3) The time period for which insurance is provided under the Peak Inventory Endorsement.
(c) Premium will be charged for the entire month for any calendar month during which any amount of coverage is provided under these provisions or the Peak Inventory Endorsement.
(d) In lieu of section 7(a) of the Basic Provisions:
(1) If you apply for insurance before the premium billing date listed in the actuarial documents, the annual premium is earned and payable at the time coverage begins. You will be billed for the premium and administrative fee not earlier than the premium billing date listed in the actuarial documents.
(2) If you apply for insurance, or submit your PIVR or catalog, on or after the premium billing date listed in the actuarial documents, the premium for the partial crop year will be due and must be paid at the time of application or submission of your PIVR or catalog.
(3) Failure to pay the premium at the time of application or when you submit your PIVR or catalog will result in no insurance and no indemnity being owed for the crop year.
In lieu of the provisions of sections 8 and 9 of the Basic Provisions, the insured crop will be all nursery plants in each practice you elect to insure, and:
(a) For which you have a share;
(b) Are shown on the EPLPPS and meet all the requirements for insurability (plant types, species and cultivars not insurable under the EPLPPS may be insured by written agreement, subject to FCIC’s determination that the proper storage requirements and an accurate insurable price for the plant can be determined, and provided all other requirements, such as plant and container size, are met);
(c) Are determined by us to be acceptable;
(d) Are grown in a county for which a premium rate is provided in the actuarial documents;
(e) Are grown in a nursery inspected by us and determined to be acceptable;
(f) Are irrigated unless otherwise provided by the Special Provisions (you must have adequate irrigation equipment and water to irrigate all insurable nursery plants at the time coverage begins and throughout the insurance period);
(g) Are grown in accordance with the production practices for which premium rates have been established;
(h) Are grown in an appropriate medium;
(i) Are grown and sold with the root system attached;
(j) Are not stock plants or plants being grown solely for harvest of buds, flowers, or greenery;
(k) May produce edible fruits or nuts provided the plants are made available for sale (harvest of the edible fruit or nuts does not affect insurability); and
(l) Are not produced in nursery containers that contain two or more different genera, species, subspecies, varieties or cultivars.
(a) In lieu of section 11 of the Basic Provisions:
(1) For the year of application, if you apply for coverage:
(i) On or before May 1st of the crop year, coverage begins June 1st, unless we notify you in writing that your application is rejected because your PIVR, catalog, or supporting documentation (if requested by us) is not acceptable;
(ii) After May 1st, coverage will not begin until the 31st day after we receive all acceptable documents; and
(2) For continuous policies, the insurance period begins on each June 1st.
(b) Insurance ends at the earliest of:
(1) The date of final adjustment of a loss when the total indemnities due equal the amount of insurance;
(2) Removal of bare root nursery plant material from the field;
(3) Removal of all other insured plant material from the nursery;
(4) May 31st; or
(5) Abandonment of the crop on the basic unit.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided for unavoidable damage caused only by the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions, except as specified in section 10(c) or the Special Provisions;
(2) Fire, provided weeds and undergrowth in the vicinity of the plants or buildings on your insured site are controlled by chemical or mechanical means;
(3) Wildlife;
(4) Earthquake; or
(5) Volcanic eruption.
(b) Insurance is also provided against the following if due to a cause of loss specified in section 10(a) that occurs within the insurance period:
(1) A loss in plant values because of an inability to market such plants, provided such plants would have been marketed during the crop year (e.g. poinsettias that are not marketable during their usual and recognized marketing period of November 1st through December 25th);
(2) Failure of the irrigation water supply; or
(3) Failure of, or reduction in, the power supply.
(c) In addition to the causes of loss excluded in sections 12(a) and (c) through (f) of the Basic Provisions, we do not insure against any loss caused by:
(1) Disease or insect infestation, unless:
(i) A disease or insect infestation occurs for which no effective control measure exists; or
(ii) Coverage is specifically provided by the Special Provisions.
(2) The inability to market the nursery plants as a result of:
(i) The refusal of a buyer to accept production;
(ii) Boycott; or
(iii) An order from a public official prohibiting sales including, but not limited to, a stop sales order, quarantine, or phytosanitary restriction on sales;
(3) Cold temperatures, if cold protection is required in the EPLPPS, unless you have installed adequate cold protection equipment or facilities and:
(i) There is a failure or breakdown of the cold protection equipment or facilities resulting from an insurable cause of loss specified in section 10(a) (the insured plants must be damaged by cold temperatures and the damage must occur within 72 hours of the failure of such equipment or facilities unless we establish that repair or replacement was not possible between the time of failure or breakdown and the time the damaging temperatures occurred); or
(ii) The lowest temperature or its duration exceeded the ability of the required cold protection equipment or facilities to keep the insured plants from sustaining cold damage;
(4) Collapse or failure of buildings or structures, unless the damage to the building or structures results from a cause of loss specified in section 10(a);
(5) Any cause of loss, including those specified in section 10(a), if the only damage suffered is a failure of plants to grow to an expected size; or
(6) Failure to follow recognized good nursery practices.
(a) In addition to your duties contained in section 14 of the Basic Provisions,
(1) You must obtain our written consent prior to:
(i) Destroying, selling or otherwise disposing of any plant inventory that is damaged; or
(ii) Changing or discontinuing your normal growing practices with respect to care and maintenance of the insured plants.
(2) You must submit a claim for indemnity to us on our form, not later than 60 days after the date of your loss, but in no event later than 60 days after the end of the insurance period. This requirement will be waived by us if the final adjustment of your claim is totally or partially deferred because we are unable to make an accurate determination of the amount of damage to the insured plants. If within the time frame specified we notify you that we are unable to make an accurate determination of damage on all or some of your damaged plants:
(i) For those damaged plants on which the loss adjustment and claim have not been deferred, you must submit a partial claim within the time frame specified in section 11(a)(2) and we will settle your claim on such plants;
(ii) For those damaged plants on which the loss adjustment and claim have been deferred, we will determine the amount of damage at the earliest possible date but no later than one year after the end of the insurance period for the crop year in which the damage occurred; and
(iii) You must maintain the identity of the plants on which loss adjustment is deferred throughout the deferral period.
(b) If you fail to obtain our written consent as required by section 11(a)(1), your claim will be denied on each basic unit for which written consent was not obtained.
We will determine indemnities for any unit as follows:
(a) Determine the under-report factor or over-report factor, as applicable, for the basic unit;
(b) Determine the occurrence deductible;
(c) Subtract FMVB from FMVA;
(d) Multiply the result of 12(c) by the under-report factor or one minus the over-report factor (1.000 − over-report factor), as applicable;
(e) Subtract the occurrence deductible from the result in section 12(d); and
(f) If the result of section 12(e) is greater than zero, and subject to the limit stated in section 12(g):
(1) For additional coverage, your indemnity equals the result of section 12(e) multiplied by your share.
(2) For catastrophic risk protection coverage, your indemnity equals the result of section 12(e) multiplied by fifty-five percent and by your share.
(g) The total of all indemnities for the crop year will not exceed the amount of insurance, including any peak amount of insurance during the coverage term of the Peak Inventory Endorsement, if this endorsement is elected.
(h) In order to prevent your indemnity from being reduced when you have over-reported your basic unit value, the following must apply: FMVA plus the insured value of the plants listed on the verifiable sales records must support, within 10 percent, the basic unit value reported on the PIVR, revised PIVR, and Peak Inventory Value Report, if applicable, minus the total of all previous losses. Otherwise, any indemnity for that basic unit will be reduced by an over-report factor.
(i) If you elected basic units by non-contiguous land, in accordance with section 3(a)(ii), and you do not keep your records separate by unit, we will combine all basic units for which records were not kept separate.
The late and prevented planting provisions in the Basic Provisions are not applicable.
(a) Written agreements may only be requested for plants not listed on the EPLPPS.
(b) In lieu of section 18(a) of the Basic Provisions, you must request in writing a written agreement with the application for the initial crop year, and not later than the sales closing date for each subsequent crop year, except as provided in section 14(d).
(c) In lieu of the requirements of section 18(d) of the Basic Provisions, any written agreement is valid only until the end of the insurance period for the crop year such written agreement applies; and
(d) In lieu of section 18(e) of the Basic Provisions, an application for a written agreement submitted after the date of application for the initial crop year and the sales closing date for all subsequent crop years may be approved if:
(1) You demonstrate your physical inability to have applied timely; and
(2) After physical examination of the nursery plant inventory, we determine the inventory will be marketable at the value shown on the PIVR.
Assume you have a 100 percent share and the basic unit value reported by you is $100,000. Your coverage level is 75 percent. Your amount of insurance is $75,000 ($100,000 × .75). At the time of loss, we determine that the value of your inventory immediately before the loss (FMVA) is $125,000, and the value after the loss (FMVB) is $80,000. Your indemnity would be calculated as follows:
Step (1): $100,000 ÷ $125,000 = .80 is the under-report factor;
Step (2): The occurrence deductible is the lesser of a) .25 × $125,000 × .80 = $25,000; or b) $100,000 × (1.00 − .75) = $25,000;
Step (3): $125,000 − $80,000 = $45,000 loss;
Step (4): $45,000 × .80 = $36,000 loss after the under-report factor is applied;
Step (5): $36,000 − $25,000 = $11,000 loss after the occurrence deductible; and
Step (6): $11,000 × 1.000 share = $11,000 indemnity payment.
Assume you have a 100 percent share and the basic unit value reported by you is $125,000. Your coverage level is 75 percent. Your amount of insurance is $93,750 ($125,000 × .75). At the time of loss, we determine that the value of your inventory immediately before the loss (FMVA) is $100,000, and the value after the loss (FMVB) is $50,000. You provide verifiable sales records containing an insured value of plants equaling $10,000. Your indemnity would be calculated as follows:
Step (1): ($125,000 ÷ ($100,000 + $10,000)) − 1.100 = .04 is the over-report factor;
Step (2): The occurrence deductible is the lesser of: a) .25 × $100,000 × (1.000 + .04) = $26,000; or b) .25 × $125,000 = $31,250;
Step (3): $100,000 − $50,000 = $50,000 loss;
Step (4): $50,000 × (1.000 − .04) = $48,000 loss after the over-report factor is applied;
Step (5): $48,000 − $26,000 = $22,000 loss after the occurrence deductible; and
Step (6): $22,000 × 1.000 share = $22,000 indemnity payment.
Assume you have a second loss on the same basic unit as the first example. Your amount of insurance has been reduced by subtracting your previous indemnity payment of $11,000 from your amount of insurance ($75,000 − $11,000 = $64,000). Your crop year deductible has been reduced to zero by the previous loss ($25,000 − $36,000, but not less than zero). You purchase a Peak Inventory Endorsement and report $60,000 in inventory. Your peak amount of insurance is your reported inventory times your coverage level ($60,000 × .75 = $45,000). The combined amount of insurance for the coverage term of the peak endorsement is $64,000 + $45,000 = $109,000. Your crop year deductible is increased by $15,000 ($60,000 × .25). At the time of loss, we determine that the value of your inventory immediately before the loss (FMVA) is $124,000, and the value after the loss (FMVB) is $58,000. Your indemnity would be calculated as follows:
Step (1): ($160,000 − $36,000)/$124,000 = 1.00 is the under-report factor;
Step (2): The occurrence deductible is the lesser of: a) .25 × $60,000 × 1.00 = $15,000; or b) $60,000 × .25 = $15,000;
Step (3): $124,000 − $58,000 = $66,000 loss;
Step (4): $66,000 × 1.00 = $66,000 loss after the under-report factor is applied;
Step (5): $66,000 − $15,000 = $51,000 loss after the occurrence deductible; and
Step (6): $51,000 × 1.000 share = $51,000 indemnity payment.
Your peak amount of insurance is reduced to zero. Your amount of insurance is reduced by the amount the indemnity exceeds the peak amount of insurance. $64,000 − ($51,000 − $45,000) = $64,000 − $6,000 = $58,000.
§ 457.163 Nursery peak inventory endorsement.
This endorsement is not continuous and must be purchased for each crop year to be effective for that crop year.
In return for payment of premium for the coverage contained herein, this endorsement will be attached to and made part of the Nursery Crop Insurance Provisions, subject to the terms and conditions described herein.
Coverage commencement date. The later of the date you declare as the beginning of the coverage or 30 days after a properly completed Peak Inventory Value Report is received by us.
Coverage term. A period of time that begins on the coverage commencement date and ends on the coverage termination date.
Coverage termination date. The date you declare that the peak amount of insurance will cease. This date cannot be after the end of the crop year.
Peak amount of insurance. The additional inventory value reported on the Peak Inventory Value Report for each basic unit multiplied by your coverage level and by your share.
Peak Inventory Value Report. A report that increases the value of insurable plants over the value reported on the PIVR, declares the coverage commencement and coverage termination dates, and the other requirements of section 6 of the Nursery Crop Insurance Provisions.
Peak inventory premium adjustment factor. A factor calculated by subtracting the monthly proration factor for the month following the month containing the coverage termination date from the proration factor for the month in which coverage commenced. Peak Inventory Endorsements with a coverage termination date during the month of May will have a premium adjustment factor equal to the proration factor for the month containing the coverage commencement date.
Restock. Replacement of lost or damaged plants that increase the value of your insurable inventory to an amount greater than your remaining amount of insurance.
(a) You must have insurance under the Nursery Crop Insurance Provision in effect for the crop year that this endorsement applies;
(b) You must have elected an additional level of coverage.
(c) You must submit a Peak Inventory Value Report, which will serve as the application for coverage under this endorsement.
(1) The Peak Inventory Value Report may contain one or more plant type basic units and each plant type basic unit will be considered a separate Peak Inventory Endorsement.
(2) We may reject the Peak Inventory Value Report if all requirements in this endorsement and the Nursery Crop Insurance Provisions are not met.
(d) You may purchase no more than one Peak Inventory Endorsement for each basic unit during the crop year unless you have suffered insured losses and have restocked your nursery, in which case an additional Peak Inventory Endorsement may be purchased after each insured loss.
(a) The amount of insurance provided under the Nursery Crop Provisions for each basic unit is increased by the peak amount of insurance for such unit for the coverage term.
(b) Except as provided herein, this endorsement does not change, amend or otherwise modify any other provision of your Nursery Crop Insurance Policy.
Coverage begins on the coverage commencement date and ends at 11:59 p.m. on the coverage termination date.
(a) The premium for this endorsement is determined by multiplying the peak amount of insurance by the appropriate premium rate and by the peak inventory premium adjustment factor.
Assume a grower reports a peak amount of insurance on a basic unit of $100,000 with a 65 percent coverage level and a share of 1.000. The base premium rate is $0.051. The proration factors for the Peak Inventory Endorsement are 0.68 for the month that coverage commenced and 0.52 for the month following the month containing the coverage termination date, as stated in the actuarial documents. The peak premium adjustment factor is 0.16 (0.68 − 0.52). The total premium amount for the Peak Inventory Endorsement is $530.40 ($100,000 × 0.65 × 1.000 × $0.051 × 0.16).
(b) The premium for this endorsement is due and payable in accordance with section 7 of the Nursery Crop Insurance Provisions.
In addition to the reporting requirements of section 6 of the Nursery Crop Insurance Provisions, you must submit a Peak Inventory Value Report on our form.
The peak amount of insurance is limited to 200 percent of the amount of insurance established under the Nursery Crop Insurance Provisions.
§ 457.164 Nursery rehabilitation endorsement.
If you elect this endorsement and pay the additional premium designated in the actuarial documents, this endorsement is attached to and made a part of your Nursery Crop Insurance Provisions subject to the terms and conditions herein. In the event of a conflict between the Nursery Crop Insurance Provisions and this endorsement, this endorsement will control. (a) You must have purchased additional coverage under the Nursery Crop Insurance Provisions, and you must comply with all terms and conditions contained in the applicable Nursery Crop Insurance Provisions and endorsements. (b) All field grown nursery plants insured under the Nursery Crop Insurance Provisions must be insured under this endorsement. Nursery plants produced in standard nursery containers are not covered under this endorsement. (c) You must elect this endorsement: (1) At the time of application for the initial crop year your field grown nursery plants will be insured under the Nursery Crop Insurance Provisions; or (2) By October 1, 2005, for the 2006 crop year and by the sales closing date for each subsequent crop year if your field grown plants are already insured under the Nursery Crop Insurance Provisions. (a) This endorsement is only applicable to field grown plants damaged by an insured cause of loss specified in section 10 of the Nursery Crop Insurance Provisions. (b) Rehabilitation costs covered by this endorsement are limited to expenditures for labor and materials for pruning and setup (righting, propping, and staking). (c) To be eligible for a rehabilitation payment: (1) The damaged plants must have a reasonable expectation of recovery based on: (i) The type of damage (e.g., broken limbs from high winds, trees uprooted by hurricane, etc.); (ii) The extent of damage (e.g., twenty percent of the limbs broken, half the canopy removed, etc.); and (iii) Whether the plant can recover to the point it is marketable; (2) Verifiable records must be provided showing actual expenditures for rehabilitation and such expenditures must be reasonable and customary for the type and extent of damage sustained by the plants; (3) Rehabilitation procedures must be performed directly following the occurrence of damage and before additional deterioration of the damaged plants occurs; (4) We must determine it is practical to rehabilitate the damaged plants (It is not practical if the costs of rehabilitation are greater than the value of the plant); and (5) The total actual rehabilitation costs for each loss occurrence on the basic unit must be at least the lesser of 2.0 percent of field market value A or $5,000. (d) The maximum amount of each rehabilitation payment for each basic unit will be the lesser of: (1) Your total actual rehabilitation costs multiplied by the under-report factor contained in the Nursery Crop Insurance Provisions; or (2) An amount equal to 7.5 percent of the value (based on insurable plant prices determined in accordance with section 6 of the Nursery Crop Insurance Provisions) of all your insurable field grown plants that were rehabilitated subsequent to an insured cause of loss, multiplied by the under-report factor described in the Nursery Crop Insurance Provisions, multiplied by the coverage level percentage you elect, and multiplied by your share. Insurable, rehabilitated plants that have not recovered from damage that occurred prior to attachment of this endorsement will have a reduced value in accordance with section 6(h) of the Nursery Crop Insurance Provisions. (e) The total of all rehabilitation payments for the crop year for the basic unit will not exceed 7.5 percent of the value (based on insurable plant prices determined in accordance with section 6 of the Nursery Crop Insurance Provisions) of all your insurable field grown plants in such basic unit, multiplied by the under-report factor described in the Nursery Crop Insurance Provisions, multiplied by the coverage level percentage you elect, and multiplied by your share. This endorsement will continue in effect until canceled or coverage under the Nursery Crop Insurance Provisions is cancelled or terminated. This endorsement may be canceled by you or us for any succeeding crop year by giving written notice to the other party on or before the cancellation date, contained in the Nursery Crop Insurance Provisions, preceding the crop year for which the cancellation of this endorsement is to be effective.
§ 457.165 Millet crop insurance provisions.
The Millet Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
Reinsured policies:
Bushel. Fifty pounds of millet, or any other quantity which is designated in the Special Provisions for that purpose.
Harvest. Combining or threshing the millet for grain. A crop that is swathed prior to combining is not considered harvested.
Late planting period. In lieu of the definition contained in the Basic Provisions, the period that begins the day after the final planting date for the insured crop and ends 20 days after the final planting date.
Local market price. The cash price for millet with a 50-pound test weight adjusted to zero percent foreign material content basis offered by buyers in the area in which you normally market the millet. Factors not associated with grading, including, but not limited to, moisture content, will not be considered.
Millet. Proso millet produced for grain to be used primarily as bird and livestock feed.
Nurse crop (companion crop). A crop planted into the same acreage as another crop, that is intended to be harvested separately, and that is planted to improve growing conditions for the crop with which it is grown.
Planted acreage. In addition to the definition contained in the Basic Provisions, land on which seed is initially spread onto the soil surface by any method and is subsequently mechanically incorporated into the soil in a timely manner and at the proper depth. Acreage planted in any manner not contained in this definition will not be insurable unless otherwise provided by the Special Provisions.
Swathed. Severance of the stem and grain head from the ground without removal of the seed from the head and placing into a row.
In addition to the requirements of section 3 of the Basic Provisions, you may select only one price election for all the millet in the county insured under this policy.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are March 15.
In accordance with section 8 of the Basic Provisions, the crop insured will be all the millet in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That is planted for harvest as grain;
(c) That is not planted as a nurse crop; and
(d) That is not (unless allowed by Special Provisions or written agreement):
(1) Interplanted with another crop; or
(2) Planted into an established grass or legume.
In addition to section 9 of the Basic Provisions, any acreage of the insured crop damaged before the final planting date, to the extent that a majority of producers in the area would not normally further care for the crop, must be replanted unless we agree that it is not practical to replant.
7. Insurance Period.
In accordance with section 11 of the Basic Provisions, the calendar date for the end of the insurance period is the date immediately following planting (unless otherwise specified in the Special Provisions) as follows:
(a) October 10 for North Dakota, South Dakota, and Wyoming; and
(b) October 31 for all other states.
In accordance with section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur within the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; or
(h) Failure of the irrigation water supply due to a cause of loss specified in sections 8(a) through (g) that also occurs during the insurance period.
In accordance with section 14 of the Basic Provisions, the representative samples of the unharvested crop must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be harvested or destroyed until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production:
(1) For any optional unit, we will combine all optional units for which acceptable records of production were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim on any unit by:
(1) Multiplying the insured acreage by the production guarantee;
(2) Subtracting the total production to count (See section 10(c)) from the result of section 10(b)(1);
(3) Multiplying the result of section 10(b)(2) by your price election; and
(4) Multiplying the result of section 10(b)(3) by your share.
For example:
You have a 100 percent share in 100 acres of millet in the unit, with a guarantee of 15 bushels per acre and a price election of $4.00 per bushel. You are only able to harvest 800 bushels. Your indemnity would be calculated as follows:
(1) 100 acres × 15 bushel = 1,500 bushel guarantee;
(2) 1,500 bushel guarantee − 800 bushel production to count = 700 bushel loss;
(3) 700 bushels × $4.00 price election = $2,800 loss; and
(4) $2,800 × 100 percent share = $2,800 indemnity payment.
(c) The total production (bushels) to count from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Your appraised production will not be less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide records of production that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with subsection 10(d));
(iv) Potential production on insured acreage you want to put to another use or you wish to abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end if you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us. (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature millet may be adjusted for excess moisture and quality deficiencies. If moisture adjustment is applicable, it will be made prior to any adjustment for quality.
(1) Production will be reduced by .12 percent for each 0.1 percent point of moisture in excess of 12 percent. We may obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality, result in the millet weighing less than 50 pounds per bushel; or
(ii) Substances or conditions are present that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a cause of loss against which insurance is provided under these crop provisions and within the insurance period;
(ii) The deficiencies, substances, or conditions result in a net price for the damaged production that is less than the local market price;
(iii) All determinations of these deficiencies, substances, or conditions are made using samples of the production obtained by us or by a disinterested third party approved by us; and
(iv) The samples are analyzed by a grader or by a laboratory approved by us with regard to substances or conditions injurious to human or animal health (test weight for quality adjustment purposes may be determined by our loss adjuster).
(4) Millet production that is eligible for quality adjustment, as specified in sections 10(d)(2) and (3), will be reduced by the quality adjustment factor contained in the Special Provisions if quality adjustment factors are not available in the county, the eligible millet production will be reduced as follows:
(i) The market price of the qualifying damaged production and the local market price will be determined on the earlier of the date such quality adjusted production is sold or the date of final inspection for the unit.
(ii) The price for the qualifying damaged production will be the market price for the local area to the extent feasible. Discounts used to establish the net price of the damaged production will be limited to those that are usual, customary, and reasonable. The price will not be reduced for:
(A) Moisture content;
(B) Damage due to uninsured causes; or
(C) Drying, handling, processing, or any other costs associated with normal harvesting, handling, and marketing of the millet; except, if the value of the damaged production can be increased by conditioning, we may reduce the value of the production after it has been conditioned by the cost of conditioning but not lower than the value of the production before conditioning. We may obtain prices from any buyer of our choice. If we obtain prices from one or more buyers located outside your local market area, we will reduce such prices by the additional costs required to deliver the millet to those buyers.
(iii) The value of the damaged or conditioned production determined in section 10(d)(4)(ii) will be divided by the local market price to determine the quality adjustment factor.
(iv) The number of bushels remaining after any reduction due to excessive moisture (the moisture-adjusted gross bushels, if appropriate) of the damaged or conditioned production under section 10(d)(1) will then be multiplied by the quality adjustment factor from section 10(d)(4)(iii) to determine the production to count.
(e) Any production harvested from plants growing in the insured crop may be counted as production of the insured crop on a weight basis.
In lieu of the provisions contained in section 16(a) of the Basic Provisions, the production guarantee for each acre planted to the insured crop during the late planting period, unless otherwise specified in the Special Provisions, will be reduced by:
(a) One percent per day for the first through the tenth day; and
(b) Three percent per day for the eleventh through the twentieth day.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.166 Blueberry crop insurance provisions.
The Blueberry Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
Damaged blueberries. Blueberries ready to harvest that due to an insurable cause of loss as shown in section 8 of these Crop Provisions do not meet the United States Standards for Grades of Blueberries, U.S. No. 1, or such other applicable grading standards specified in the Special Provisions.
Harvest. Picking mature blueberries from the bushes either by hand or machine.
Mature blueberry production. Blueberries ready to harvest that meet or exceed the United States Standards for Grades of Blueberries, U.S. No. 1, or such other applicable grading standards contained in the Special Provisions.
Pound. Sixteen ounces avoirdupois.
Production guarantee (per acre). The number of pounds determined by multiplying the approved yield per acre by the coverage level percentage you elect.
Prune. A cultural practice performed to increase blueberry production as follows:
(a) For lowbush blueberries, a process by which the acreage is either burned or mowed; and
(b) For all other blueberries, a process by which parts of the bush are cut off or the bush is cut back.
The enterprise, whole-farm, and optional unit provisions in the Basic Provisions are not applicable, and blueberry acreage is limited to basic units as defined in section 1 of the Basic Provisions, unless otherwise specified in the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one price election percentage for each blueberry type designated in the Special Provisions. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) You must report (by type, if applicable) by the production reporting date designated in section 3 of the Basic Provisions:
(1) For all types of blueberries: any damage; removal of bushes; change in practices, or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based; and the number of affected acres; and
(2) For highbush and rabbiteye blueberry types:
(i) The number of bearing bushes on insurable and uninsurable acreage; and
(ii) The age of the bushes and the planting pattern.
(c) We will reduce the yield used to establish your production guarantee as necessary, based on our estimate of the effect of the following: Removal of bushes; damage to bushes; changes in practices; and any other circumstance that may affect the yield potential of the insured crop. If you fail to notify us of any circumstance that may reduce your yields from previous levels, we will reduce your production guarantee as necessary at any time we become aware of the circumstance.
(d) You may not increase your elected or assigned coverage level or the ratio of your price election to the maximum price election we offer for the next year if a cause of loss that could or would reduce the yield of the insured crop is evident prior to the time you request the increase.
In accordance with section 4 of the Basic Provisions, the contract change date is August 31 preceding the cancellation date.
(a) In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are November 20.
(b) If your blueberry policy is canceled or terminated by us for any crop year, in accordance with the terms of the policy, after insurance attached for that crop year but on or before the cancellation and termination dates whichever is later, insurance will be considered to have not attached for that crop year and no premium, administrative fee, or indemnity will be due for such crop year.
(c) We may not cancel your policy when an insured cause of loss has occurred after insurance attached, but prior to the cancellation date. However, your policy can be terminated if a cause for termination contained in sections 2 or 27 of the Basic Provisions exists.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the blueberries in the county for which a premium rate is provided in the actuarial documents:
(1) In which you have a share;
(2) That are grown on bush varieties that:
(i) Were commercially available when the bushes were set out or have subsequently become commercially available; and
(ii) Are varieties adapted to the area of the following types:
(A) Highbush blueberries;
(B) Lowbush blueberries;
(C) Rabbiteye blueberries; or
(D) Other blueberry types listed on the Special Provisions.
(3) That are produced on bushes that have reached the minimum insurable age or have produced the minimum yield per acre designated in the Special Provisions; and
(4) That, if inspected, are considered acceptable by us.
(b) Lowbush blueberry plants (or other types as specified in the Special Provisions) must be pruned every other year to be eligible for insurance.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) For the year of application, coverage begins on November 21 of the calendar year prior to the year the insured crop normally blooms, except that, if your application is received by us after November 1, insurance will attach on the twentieth day after your properly completed application is received in our local office unless we inspect the acreage during the 20-day period and determine that it does not meet insurability requirements. You must provide any information that we require for the crop or to determine the condition of the blueberry acreage.
(2) For each subsequent crop year that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior crop year. Policy cancellation that results solely from transferring an existing policy to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(3) The calendar date for the end of insurance period for each crop year is September 30 for Michigan and September 15 for all other states, unless specified otherwise in the Special Provisions.
(4) Notwithstanding the provisions in this section, coverage may not begin for a crop year if the policy is cancelled or terminated in accordance with section 5(b).
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period. There will be no coverage of any insurable interest acquired after the acreage reporting date.
(2) If you relinquish your insurable share on any insurable acreage of blueberries on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(3) If you relinquish your insurable share on any insurable acreage of blueberries after the acreage reporting date for the crop year, insurance coverage will be provided for any loss due to an insurable cause of loss that occurred prior to the date that you relinquished your insurable share and the whole premium will be due for such acreage for that crop.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the unit;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Earthquake;
(6) Volcanic eruption;
(7) An insufficient number of chilling hours to effectively break dormancy;
(8) Wildlife, unless appropriate control measures have not been taken; and
(9) Failure of the irrigation water supply, if caused by a cause of loss specified in this section that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to:
(1) Failure to install and maintain a proper drainage system;
(2) Failure to harvest in a timely manner;
(3) Inability to market the blueberries for any reason other than actual physical damage to the blueberries from an insurable cause specified in this section (for example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production); or
(4) Mechanical damage.
In addition to the requirements of section 14 of the Basic Provisions, the following will apply:
(a) You must notify us:
(1) Within 3 days of the date harvest should have started if the crop will not be harvested.
(2) Within 24 hours if any cause of loss occurs:
(i) Within 15 days of harvest;
(ii) When the blueberries are mature and ready for harvest; or
(iii) During harvest.
(3) At least 15 calendar days before any production will be harvested if any portion of your crop will be direct marketed. We will conduct an appraisal that will be used to determine your production to count sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals and acceptable records provided by you will be used to determine your production to count. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised amount of production to count that is not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(4) At least 15 days prior to the beginning of harvest if you intend to claim an indemnity on any unit as a result of previously reported damage, so that we may inspect the damaged production.
(b) You must not sell or dispose of the damaged crop until after we have given you written consent to do so. If you fail to meet the requirements of this section, and such failure results in our inability to inspect the damaged production, all such production will be considered undamaged and included as production to count.
(c) You may be required to harvest a sample, selected by us, to be used for appraisal purposes.
(a) We will determine your loss on a unit basis. In the event you are unable to provide acceptable production records for any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by its respective production guarantee;
(2) Multiplying each result in section 10(b)(1) by the respective price election, by type if applicable;
(3) Totaling the results in section 10(b)(2) if there is more than one type;
(4) Multiplying the total production to count for each blueberry type, if applicable, by the respective price election;
(5) Totaling the results in section 10(b)(4), if there is more than one type;
(6) Subtracting the result in section 10(b)(5) from the result in section 10(b)(3); and
(7) Multiplying the result in section 10(b)(6) by your share.
Example for Section 10(b)
You have 100 percent share in 25 acres of highbush blueberries with a production guarantee of 4,000 pounds per acre and a price election of $.90 per pound. You are only able to harvest 62,500 total pounds because adverse weather reduced the yield. Your indemnity would be calculated as follows:
A. 25 acres × 4,000 pound production guarantee/acre = 100,000 pound total production guarantee;
B. 100,000 pounds × $.90 price election = $90,000 guarantee;
C. One type only, so same as (2) above, $90,000;
D. 62,500 pounds production to count × $.90 price election = $56,250 value of production to count;
E. One type only, so same as (4) above, $56,250;
F. $90,000 − $56,250 = $33,750 loss; and
G. $33,750 × 100 percent share = $33,750 indemnity payment.
End of Example.
(c) The total production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised blueberry production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the requirements contained in section 9;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records;
(ii) Production lost due to uninsured causes; and
(iii) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvest the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count.
(2) All harvested mature blueberry production from the insurable acreage.
(d) If you have harvested or unharvested damaged blueberries and the percent of damaged blueberries exceeds that shown in the Special Provisions for that type, production to count for the damaged unit or portion of a unit will be determined as follows:
(1) The blueberries from the specific acreage will not be considered production to count if no blueberries are harvested and sold from such acreage;
(2) For damaged blueberries that are harvested and sold, the production to count for such damaged blueberries will be determined by:
(i) Subtracting the harvest costs contained in the Special Provisions from the price received for the damaged blueberries;
(ii) Dividing the result in section 10(d)(2)(i) by the price election; and
(iii) Multiplying the resulting factor from section 10(d)(2)(ii), not less than zero, by the pounds of damaged blueberries;
(e) If you have harvested or unharvested damaged blueberries and the percent of damaged blueberries does not exceed that shown in the Special Provisions for that type, the production to count for the damaged unit or portion of a unit will be the appraised or harvested production of blueberries.
(f) If we determine that frost protection equipment, as shown on your accepted application, was not properly utilized, the indemnity for the affected acreage in the unit will be reduced by the percentage reduction allowed for frost protection equipment as specified in the Special Provisions. You must, at our request, provide us records by date for each period the frost protection equipment was used.
The late and prevented planting provisions in the Basic Provisions are not applicable.
§ 457.167 Pecan revenue crop insurance provisions.
The Pecan Revenue Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
AMS. The Agricultural Marketing Service of the United States Department of Agriculture.
Amount of insurance per acre. The amount determined by multiplying your approved average revenue per acre by the coverage level percentage you elect.
Approved average revenue per acre. The total of your average gross sales per acre based on the most recent consecutive four years of sales records building to six years and dividing that result by the number of years of average gross sales per acre. If you provide more than four years of sales records, they must be the most recent consecutive six years of sales records. If you do not provide at least four years of gross sales records, your approved average revenue will be:
(1) The average of the two most recent consecutive years of your gross sales per acre and two years of the T-revenue; or
(2) If you do not provide any gross sales records, the T-revenue.
Average gross sales per acre. Your gross sales of pecans for a crop year divided by your net acres of pecans grown during that crop year. For example, if for the crop year your gross sales were $100,000 and your net acres of pecans were 100, then your average gross sales per acre for the crop year would be $1,000.
Crop year. The period beginning February 1 of the calendar year in which the pecan trees bloom and extending through January 31 of the year following such bloom, and will be designated by the calendar year in which the pecan trees bloom.
Direct marketing. In addition to the definition contained in section 1 of the Basic Provisions, the sale of the insured crop directly to consumers without the intervention of an intermediary including a sheller. An additional example of direct marketing includes shelling and packing your own pecans.
Gross sales. Total value of in-shell pecans grown during a crop year.
Harvest. Collecting mature pecans from the orchard.
Hedge. The removal of vegetative growth from the tree to prevent overcrowding of pecan trees.
In-shell pecans. Pecans as they are removed from the orchard with the nut-meats in the shell.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage on which two or more crops are planted in any form of alternating or mixed pattern.
Market price. The market price is:
(1) The average of the AMS prices for the nearest location for similar quality, quantity, and variety of in-shell pecans published during the week you sell any of your pecans, you harvest your pecans if they are not sold, or your pecans are appraised if you are not harvesting them, unless otherwise provided in the Special Provisions. For example, if you harvest production on November 14 but do not sell the production, the average of the AMS prices for the week containing November 14 will be used to determine the market price for the production harvested on November 14; or
(2) If AMS prices are not published for the week, the average price per pound for in-shell pecans of the same variety or varieties insured offered by buyers on the day you sell any of your pecans, you harvest any of your pecans if they are not sold, or your pecans are appraised if you are not harvesting them, in the area in which you normally market the pecans (If buyers are not available in your immediate area, we will use the average in-shell price per pound offered by buyers nearest to your area).
Net acres. The insured acreage of pecans multiplied by your share.
Pound. A unit of weight equal to sixteen ounces avoirdupois of in-shell pecans.
Scion – Twig or portion of a pecan variety used in top work.
Sequentially thinned. A method of systematically removing pecan trees for the purpose of improving sunlight penetration and maintaining the proper spacing necessary for continuous production.
Top work. To graft scions of one pecan variety onto the tree or branch of another pecan variety.
Transitional revenue (T-revenue). A value determined by FCIC and published in the actuarial documents.
Two-year coverage module. A two-crop-year subset of a continuous policy in which you agree to insure the crop for both years of the module, and we agree to offer the same premium rate, amount of insurance per acre, coverage level, terms and conditions of insurance for each year of coverage except for legislatively mandated changes, as long as all policy terms and conditions are met for each year of the coverage module, including the timely payment of premium, and you have not done anything that would result in a revision to these terms, as specified in this policy.
Except as provided in these Crop Provisions, for both years of the two-year coverage module a unit will be:
(a) In addition to the requirements of section 34(a)(4) of the Basic Provisions, an enterprise unit if the insured crop is located on at least two parcels of non-contiguous land and at least two of the parcels must contain at least the lesser of 20 acres or 20 percent of the insured crop acreage in the enterprise unit;
(b) A basic unit as defined in section 1 of the Basic Provisions; or
(c) In lieu of the requirements contained in sections 34(b) and (c) of the Basic Provisions, basic units may be divided into optional units if, for each optional unit, the following criteria are met:
(1) Each optional unit you select must be located on non-contiguous land;
(2) Separate records of production are provided for at least the most recent consecutive two crop years. The records will be used to verify that trees from each unit meet the minimum production requirement contained in section 8(d) and to establish the approved average revenue per acre for the optional units selected; and
(3) Optional units are selected and identified on the acreage report by the acreage reporting date of the first year of the two-year coverage module. Units will be determined when the acreage is reported, but may be adjusted or combined to reflect the actual unit structure when adjusting a loss. No further unit division may be made after the acreage reporting date for any reason.
In lieu of section 3 of the Basic Provisions, the following applies:
(a) You may select only one coverage level for both years of the two-year coverage module for all pecans in the county. By giving us written notice, you may change the coverage level for the succeeding two-year coverage module not later than the sales closing date of the next two-year coverage module.
(b) For coverage in excess of catastrophic risk protection, your insurance guarantee for the unit will be determined by multiplying your amount of insurance per acre by the net acres.
(c) For coverage under the Catastrophic Risk Protection Endorsement, your insurance guarantee for each unit equals your approved average revenue per acre multiplied by the percentage listed in the Special Provisions and multiplied by the net acres.
(d) Your amount of insurance per acre will remain the same as stated in the Summary of Coverage on each unit for each year of the two-year coverage module unless:
(1) You fail to provide acceptable records necessary to determine a loss for optional units. This will result in optional units being adjusted or combined to reflect the actual unit structure at the time of discovery. Your amount of insurance per acre will be recalculated for the current crop year and the subsequent crop year of the two-year coverage module (provided another year remains in the two-year coverage module).
(2) You increase the previous year’s insured acreage by more than 12.5 percent, which will result in the recalculation of your approved average revenue using the sales records for the added acreage. If such sales records are not available for the added acreage, the T-revenue will apply to the added acreage.
(3) You take any other action that may reduce your gross sales below your approved average revenue, which will result in an adjustment to your approved average revenue to conform to the amount of the reduction in gross sales expected from the action.
(4) Your gross sales amount is assigned in accordance with section 3(f).
(e) If you remove a contiguous block of trees from the unit, you must report such removal on your acreage report in accordance with section 6, or within 3 days if removal has occurred after the acreage reporting date, and your insurable acreage will be reduced by the number of acres of trees that have been removed.
(f) You must report for each unit your gross sales including the amount of harvested and appraised potential production to us for each year of the two-year coverage module on or before the acreage reporting date for the first year of the next two-year coverage module.
(1) If you do not report your gross sales in accordance with this paragraph, we will assign a gross sales amount for any year you fail to report and you will not be eligible for optional units for both years of the two-year coverage module. The gross sales amount assigned by us will be not greater than the T-revenue for the current coverage module.
(2) If your gross sales are reported after the acreage reporting date for the two-year coverage module, we will readjust your average gross sales per acre for the next crop year.
(3) The gross sales or your assigned gross sales amount will be used to compute your sales history for the next two-year coverage module.
(4) If you filed a claim for any year, the value of harvested production and appraised potential production used to determine your indemnity payment will be the gross sales for that year.
(g) Hail and fire coverage may be excluded from the covered causes of loss for your insured crop only if you selected additional coverage of not less than 65 percent of your approved average revenue per acre, and you have purchased the same or a higher dollar amount of coverage for hail and fire from us or any other source.
(h) If you have additional coverage for pecans in the county and the acreage has been designated as “high-risk” by FCIC, you will be able to obtain a High-Risk Land Exclusion Option for the high-risk land under the additional coverage policy and insure the high-risk acreage under a separate Catastrophic Risk Protection Endorsement, provided that the Catastrophic Risk Protection Endorsement is obtained from the same insurance provider from which the additional coverage was obtained.
(i) Any person may sign any document related to pecan crop insurance coverage on behalf of any other person covered by this policy provided that person has a properly executed power of attorney or such other legally sufficient document authorizing such person to sign.
In lieu of the provisions contained in section 4 of the Basic Provisions:
(a) We may change the terms of your coverage under this policy for any two-year coverage module. Any change to your policy within a two-year coverage module may only be done in accordance with this policy.
(b) Any changes in policy provisions, amounts of insurance, premium rates, and program dates (except as allowed herein or as specified in section 3) can be viewed on RMA’s website not later than the contract change date contained in these Crop Provisions. We may revise this information after the contract change date to correct clerical errors.
(c) The contract change date is October 31 preceding the next two-year coverage module.
(d) After the contract change date, all changes specified in section 4(b) will also be available upon request from your crop insurance agent. You will be provided, in writing, a copy of the changes to the Basic Provisions, Crop Provisions, and a copy of the Special Provisions. If changes are made that will be effective for the second year of the two-year coverage module, such copies will be provided not later than 30 days prior to the termination date. If changes are made that will be effective for a subsequent two-year coverage module, such copies will be provided not later than 30 days prior to the cancellation date. If available from us, you may elect to receive these documents and changes electronically. For changes effective for subsequent two-year coverage modules, acceptance of the changes will be conclusively presumed in the absence of written notice from you to change or cancel your insurance coverage in accordance with the terms of this policy.
(a) In lieu of section 2(a) of the Basic Provisions, this is a continuous policy with a two-year coverage module and will remain in effect for each subsequent two-year coverage module until canceled by you in accordance with the terms of this policy or terminated by us or by the operation of the terms of this policy.
(b) In lieu of section 2(c) of the Basic Provisions, after acceptance of your application, you may not cancel or transfer your policy to a different insurance provider during the initial two-year coverage module. Thereafter, the policy will continue in force for each succeeding two-year coverage module unless canceled, terminated, or transferred to a different insurance provider in accordance with the terms of this policy.
(c) In lieu of section 2(d) of the Basic Provisions, this contract may be canceled by either you or us for the next two-year coverage module by giving written notice on or before the cancellation date.
(d) Your policy may be terminated before the end of the two-year coverage module if you are determined to be ineligible to participate in any crop insurance program authorized under the Act in accordance with section 2(e) of the Basic Provisions or 7 CFR part 400, subpart U.
(e) The cancellation date is January 31 of the second crop year of each two-year coverage module.
(f) The termination date is January 31 of each crop year.
(a) In addition to the requirements of section 6 of the Basic Provisions you must report, by the acreage reporting date designated in the Special Provisions:
(1) Any damage to trees, removal of trees, change in practices, sequential thinning or any other action that may reduce the gross sales below the approved average revenue upon which the amount of insurance per acre is based and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable acreage;
(3) The age of the trees and the planting pattern;
(4) Any acreage that is excluded under sections 8 or 9; and
(5) Your gross sales receipts as required under section 3(f).
(b) We will reduce the amount of your insurable acreage based on our estimate of the removal of a contiguous block of trees or damage to trees of the insured crop. We will reduce your amount of insurance per acre based on our estimate of the expected reduction in gross sales from a change in practice or sequential thinning.
(c) If you fail to notify us of any circumstance stated in section 6(a)(1), we will reduce your insured acreage or your amount of insurance per acre to an amount to reflect the expected reduction of gross sales, as applicable, at any time we become aware of the circumstance.
In addition to the requirements of section 7 of the Basic Provisions, the premium and administrative fees, as applicable, are due annually for each year of the two-year insurance period.
In accordance with section 8 of the Basic Provisions, the crop insured will be all the pecans in the county for which a premium rate is provided by the actuarial documents:
(a) In which you have a share;
(b) That are grown for harvest as pecans;
(c) That are grown in an orchard that, if inspected, is considered acceptable by us;
(d) That are grown on trees that have produced at least 600 pounds of pecans in-shell per acre (or an amount provided in the Special Provisions) in at least one of the previous four crop years, unless otherwise allowed by written agreement. This amount of production must be achieved subsequent to any top work that occurs within a unit;
(e) That are grown on varieties or a grouping of varieties within a unit that are not designated as uninsurable in the Special Provisions;
(f) That are in an orchard that consists of a minimum of one (1) contiguous acre, unless otherwise allowed by the Special Provisions; and
(g) That are not (unless otherwise allowed by the Special Provisions or by written agreement):
(1) Grown on trees that are or have been hedged; or
(2) Direct marketed to consumers.
In lieu of the provisions in section 9 of the Basic Provisions that prohibit insurance attaching to a crop planted with another crop, pecans interplanted with another perennial crop are insurable if allowed by the Special Provisions or by written agreement.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) Coverage begins on February 1 of each crop year. However, for the year of application, we will inspect all pecan acreage and will notify you if your application was accepted or not accepted, no later than 30 days after the sales closing date. If we fail to notify you by that date, your application will be accepted unless other grounds exist to not accept the application, as specified in section 2 of the Basic Provisions. You must provide any information that we require for the crop or to determine the condition of the orchard.
(2) For each subsequent two-year coverage module that the policy remains continuously in force, coverage begins on the day immediately following the end of the insurance period for the prior two-year coverage module. Policy cancellation that results solely from transferring an existing policy to a different insurance provider for a subsequent two-year coverage module will not be considered a break in continuous coverage.
(3) The calendar date for the end of the insurance period is January 31 of the crop year.
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) If you acquire an insurable share in any insurable acreage after coverage begins but on or before the acreage reporting date for the crop year, and after an inspection we consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period. Acreage acquired after the acreage reporting date will not be insured.
(2) If you relinquish your insurable share on any insurable acreage of pecans on or before the acreage reporting date for the crop year, insurance will not be considered to have attached to, and no premium or indemnity will be due for such acreage for that crop year unless:
(i) A request for a transfer of right to an indemnity is submitted by all affected parties and approved by us;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(3) If you relinquish your insurable share on any insurable acreage of pecans after the acreage reporting date for the crop year, insurance coverage will be provided for any loss due to an insurable cause of loss that occurred prior to the date that you relinquished your insurable share and the whole premium will be due for such acreage for that crop year.
(a) In lieu of the first sentence of section 12 of the Basic Provisions, insurance is provided against an unavoidable decline in revenue due to the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or unmulched pruning debris has not been removed from the orchard;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption;
(8) Failure of the irrigation water supply, if caused by a cause of loss specified in sections 11(a)(1) through (7) that occurs during the insurance period; or
(9) Decline in market price;
(b) If damage occurs before the beginning of the crop year, coverage is only provided if and to the extent the crop was insured the previous crop year;
(c) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to the inability to market the pecans for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production.
In addition to the requirements of section 14 of the Basic Provisions, the following will apply:
(a) You must notify us within 3 days of the date harvest should have started if the crop will not be harvested.
(b) If the Special Provisions permit or you have a written agreement authorizing direct marketing, you must notify us at least 15 days before harvest begins if any production from any unit will be harvested for direct marketing. We will conduct an appraisal that will be used to determine your production to count for production that is sold by direct marketing. If damage occurs after this appraisal, we will conduct an additional appraisal. These appraisals, and any acceptable records provided by you, will be used to determine the dollar value of your production to count. Failure to give timely notice that production will be harvested for direct marketing will result in an appraised dollar value of production to count that is not less than the amount of insurance per acre for the direct-marketed acreage if such failure results in our inability to make the required appraisal.
(c) If you intend to claim an indemnity, you must notify us at least 15 days prior to the beginning of harvest, or immediately if a loss occurs during harvest, so that we may inspect the damaged production.
(d) You must not sell, destroy or dispose of the damaged crop until after we have given you written consent to do so.
(e) If you fail to meet the requirements of this section, and such failure results in our inability to inspect the damaged production, all such production will be considered undamaged and included as production to count.
(f) You may be required to harvest a sample, selected by us, to be used for appraisal purposes.
(a) Indemnities will be calculated separately for each year in the two-year coverage module.
(b) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable records for any:
(1) Optional unit, we will combine all optional units for which such records were not provided and this will be the unit structure the current crop year and the subsequent crop year of the two-year coverage module (provided another year remains in the two-year coverage module); or
(2) Basic unit, we will allocate commingled production or revenue to each basic unit in proportion to our liability on the harvested acreage for each unit.
(c) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the amount of insurance per acre by the net acres of the insured pecans;
(2) Subtracting the dollar value of the total production to count as determined in section 13(d) from the result of section 13(c)(1):
(i) For additional coverage, the total dollar value of the total production to count determined in accordance with section 13(d); or
(ii) For catastrophic risk protection coverage, the result of multiplying the total dollar value of the total production to count determined in accordance with section 13(d) by the catastrophic risk protection factor contained in the Special Provisions; and
(d) The dollar value of the total production to count from all insurable acreage will include:
(1) The value of all appraised production as follows:
(i) Not less than your amount of insurance per acre for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the requirements contained in section 12;
(C) That is damaged solely by uninsured causes;
(D) For which no sales records or unacceptable sales records are provided to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production;
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to care for the crop, our appraisal made prior to deferring the claim will be used to determine the value of production to count; and
(v) The market price will be used to value all appraised production in section 13(d)(1); and
(2) The value of all harvested production from the insurable acreage determined as follows:
(i) The dollar amount obtained by multiplying the number of pounds of pecans sold by the price received for each day the pecans were sold. (If the price received is not verifiable by sales receipts or if the pecan production was direct marketed, the market price will be used. Unless otherwise provided in the Special Provisions, and excluding pecans sold under contract, the price received will be not less than 95 percent of the lowest AMS price for the nearest location for similar quality, quantity, and variety of in-shell pecans published during the week you sell your pecans. If AMS prices are not published for the week the pecans were sold, the price received will be not less than 95 percent of the lowest price per pound for in-shell pecans of the same variety or varieties insured offered by buyers in the area you normally market the pecans or the area nearest to you if prices are not available in your immediate area on the day you sell your pecans.);
(ii) Totaling the results of section 13(d)(2)(i), as applicable;
(iii) The dollar amount obtained by multiplying the number of pounds of pecans harvested, but not sold production, by the market price;
(iv) Totaling the result of section 13(d)(2)(iii), as applicable; and
(v) Totaling the results of section 13(d)(2)(ii) and (iv).
Pecan Revenue Example
| Year | Acres | Average pounds per acre | Average gross sales per acre | |
|---|---|---|---|---|
| 4 | 100 | 750 | $1,050 | |
| 3 | 100 | 625 | $625 | |
| 2 | 100 | 1250 | $750 | |
| 1 | 100 | 200 | $250 | |
| Total Average Gross Sales Per Acre = $2,675 | ||||
The approved average revenue equals the total average gross sales per acre divided by the number of years ($2,675 ÷ 4 = $669).
The amount of insurance per acre equals the approved average revenue multiplied by the coverage level percent ($669 × .65 = $435).
Assume pecan trees in the unit experienced damage to blooms due to a late freeze causing low production. You produced, harvested, and sold 300 pounds per acre of pecans from 70 acres and received an actual price of $0.75 per pound. On the other 30 acres, the pecans suffered damage due to drought. You elected not to harvest the other 30 acres of pecans. The 30 acres were appraised at 100 pounds per acre and on the day of the appraisal the average AMS price was $0.65. The total dollar value of production to count is (300 pounds of pecans × 70 net acres × $0.75) + (100 pounds × 30 net acres × $0.65) = $15,750 + $1,950 = $17,700.
The indemnity would be:
The amount of insurance per acre multiplied by the net acres minus the dollar value of the total production to count equals the dollar amount of indemnity ($435 × 100 = $43,500.00 − $17,700.00 = $25,800).
The late and prevented planting provisions of the Basic Provisions are not applicable.
The substitution of yield provisions of the Basic Provisions are not applicable.
Notwithstanding the provisions of section 18 of the Basic Provisions, for counties with actuarial documents for pecans, you must have at least two years of production and gross sales records and for counties without actuarial documents, you must have at least four years of production and gross sales records to qualify for a written agreement.
§ 457.168 Mustard crop insurance provisions.
The Mustard Crop Insurance Provisions for the 2017 and succeeding crop years are as follows:
FCIC policies:
Base contract price. The price per pound (U.S. dollars) stipulated in the processor contract (without regard to discounts or incentives) that will be used to determine your price election.
Harvest. Combining or threshing for seed. A crop that is swathed prior to combining is not considered harvested.
Mustard. A crop of the family Cruciferae.
Planted acreage. In addition to the definition contained in the Basic Provisions, mustard seed must be planted in rows. Acreage planted in any other manner will not be insurable unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Processor. Any business enterprise regularly engaged in buying and processing mustard, that possesses all licenses and permits for processing mustard required by the State in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process contracted mustard within a reasonable amount of time after harvest.
Processor contract. A written agreement between the producer and a processor, containing at a minimum:
(a) The producer’s commitment to plant and grow mustard of the types specified in the Special Provisions and to deliver the production to the processor;
(b) The processor’s commitment to purchase all the production stated in the processor contract; and
(c) A base contract price (U.S. dollars).
Salvage price. The cash price per pound (U.S. dollars) for mustard qualifying for quality adjustment in accordance with section 13 of these Crop Provisions.
Swathed. Severance of the stem and seed pods from the ground and placing into windrows without removal of the seed from the pod.
Type. A category of mustard identified as a type in the Special Provisions.
Windrow. Mustard that is swathed and placed in a row.
In addition to the requirements of section 34 of the Basic Provisions, optional units may also be established by type, if types are designated on the Special Provisions.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may select only one base contract price percentage for all the mustard in the county insured under this policy unless the Special Provisions allow different base contract prices by type.
(b) If base contract prices are allowed by type, you can select one base contract price for each type designated in the Special Provisions. The base contract prices you choose must have the same percentage relationship to the base contract price (maximum price) offered for each type. For example, if you choose 100 percent of the maximum price for a specific type, you must also choose 100 percent of the maximum price for all other types.
(c) If there are multiple base contract prices within the same unit, each will be considered a separate price election that will be multiplied by the number of insurable acres under applicable processor contract. These amounts will be totaled to determine the premium, liability, and indemnity for the unit.
(d) To determine the total production guarantee, apply the lesser of the:
(1) Contracted acres multiplied by the production guarantee (per acre);
(2) Planted acres multiplied by the production guarantee (per acre);
(3) Total production stated in the contract; or
(4) For acreage and production contracts only, the contracted acres multiplied by the contracted production (per acre).
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are March 15.
In addition to the provisions in section 6 of the Basic Provisions, you must provide a copy of all processor contracts to us on or before the acreage reporting date.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all mustard in the county for which a premium rate is provided by the actuarial table:
(1) In which you have a share;
(2) That is planted for harvest as seed;
(3) That is grown under, and in accordance with, the requirements of a processor contract executed on or before the acreage reporting date and is not excluded from the processor contract at any time during the crop year; and
(4) That is not, unless allowed by the Special Provisions or by written agreement:
(i) Interplanted with another crop; or
(ii) Planted into an established grass or legume; or
(iii) Planted following the harvest of any other crop in the same crop year.
(b) You will be considered to have a share in the insured crop if, under the processor contract, you retain control of the acres on which the mustard is grown, your income from the insured crop is dependent on the amount of production delivered, and the processor contract provides for delivery of the mustard under specified conditions and at a stipulated base contract price.
(c) A commercial mustard producer who is also a processor may establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or officers of the processor must execute and adopt a resolution that contains the same terms as an acceptable processor contract. Such resolution will be considered a processor contract under this policy; and
(3) Our inspection reveals that the processing facilities comply with the definition of a processor contained in these Crop Provisions.
In addition to the provisions of section 9 of the Basic Provisions:
(a) Any acreage of the insured crop that is damaged before the final planting date, to the extent that a majority of producers in the area would not normally further care for the crop, must be replanted unless we agree that it is not practical to replant.
(b) We will not insure any acreage that does not meet the rotation requirements, if applicable, contained in the Special Provisions.
(c) Insurable acreage will be:
(1) For acreage only based processor contracts and acreage and production based processor contracts which specify a maximum number of acres, the lesser of:
(i) The planted acres; or
(ii) The maximum number of acres specified in the contract;
(2) For production only based processor contracts, the lesser of:
(i) The number of acres determined by dividing the production stated in the processor contract by the approved yield; or
(ii) The planted acres.
In accordance with the provisions of section 11 of the Basic Provisions, the end of the insurance period is October 31 of the calendar year in which the crop is normally harvested unless otherwise stated in the Special Provisions.
In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss which occur during the insurance period:
(a) Adverse weather conditions;
(b) Fire;
(c) Insects, but not damage due to insufficient or improper application of pest control measures;
(d) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(e) Wildlife;
(f) Earthquake;
(g) Volcanic eruption; and
(h) Failure of the irrigation water supply, if applicable, caused by a cause of loss specified in section 10(a) through (g) that occurs during the insurance period.
(a) In accordance with section 13 of the Basic Provisions, a replanting payment is allowed if the insured crop is damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage, and it is practical to replant or we require you to replant in accordance with section 8(a).
(b) The maximum amount of the replanting payment per acre will be the lesser of 20 percent of the production guarantee (per acre) or 175 pounds, multiplied by the base contract price applicable to the acreage to be replanted, multiplied by your insured share.
(c) When the mustard is replanted using a practice that is uninsurable as an original planting, the liability for the unit will be reduced by the amount of the replanting payment that is attributable to your share. The premium amount will not be reduced.
In accordance with the requirements of section 14 of the Basic Provisions, the representative samples of the unharvested crop that we may require must be at least 10 feet wide and extend the entire length of each field in the unit. The samples must not be harvested or destroyed until the earlier of our inspection or 15 days after harvest of the balance of the unit is completed.
(a) We will determine your loss on a unit basis.
(1) In the event you are unable to provide separate acceptable production records:
(i) For any optional units, we will combine all optional units for which acceptable production records were not provided; or
(ii) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(2) For any processor contract that stipulates only the amount of production to be delivered, and not withstanding the provisions of this section or any unit division provisions contained in the Basic Provisions, no indemnity will be paid for any loss of production on any unit if the insured produced a crop sufficient to fulfill the processor contract(s) forming the basis of the insurance guarantee
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insurable acreage of each type, if applicable, determined in accordance with section 8(c), by its respective production guarantee (per acre);
(2) Multiplying each result in section 13(b)(1) by the respective base contract price for each type, if applicable;
(3) Totaling the results in section 13(b)(2);
(4) Multiplying the production to be counted for each type, if applicable (see section 13(c), by its respective base contract price (If you have multiple processor contracts with varying base contract prices within the same unit, we will value your production to count by using your highest base contract price first and will continue in decreasing order to your lowest base contract price based on the amount of production insured at each base contract price);
(5) Totaling the results in section 13(b)(4);
(6) Subtracting the total in section 13(b)(5) from the total in section 13(b)(3); and
(7) Multiplying the result in section 13(b)(6) by your share.
Example # 1 (with one base contract price for the unit):
You have 100 percent share in 20 acres of mustard in a unit with a 650-pound production guarantee (per acre) and a base contract price of $0.15 per pound. Due to insurable causes, you are only able to harvest 10,000 pounds and there is no appraised production. Your indemnity would be calculated as follows:
(1) 20 acres × 650 pounds = 13,000 pound production guarantee;
(2) 13,000 pounds × $0.15 base contract price = $1,950 value of guarantee;
(3) $1,950 total value of guarantee;
(4) 10,000 pounds × $0.15 base contract price = $1,500 value of production to count;
(5) $1,500 total value of production to count;
(6) $1,950−$1,500 = $450 loss; and
(7) $450 × 100 percent = $450 indemnity payment.
Example # 2 (with two base contract prices for the same unit):
You have 100 percent share in 20 acres of mustard in a unit with a 650-pound production guarantee (per acre), 10 acres with a base contract price of $0.15 per pound, and 10 acres with a base contract price of $0.10 per pound. Due to insurable causes, you are only able to harvest 8,500 pounds and there is no appraised production. Your indemnity would be calculated as follows:
(1) 10 acres × 650 pounds = 6,500-pound production guarantee × $0.15 base contract price = $975 value guarantee;
(2) 10 acres × 650 pounds = 6,500-pound production guarantee × $0.10 base contract price = $650 value guarantee;
(3) $975 + $650 = $1,625 total value guarantee;
(4) 6,500 pounds of production to count × $0.15 base contract price (higher base contract price) = $975 value of production to count;
(5) 2,000 pounds of production to count × $0.10 base contract price (lower base contract price) = $200 value of production to count;
(6) $975 + $200 = $1,175 total value of production to count;
(7) $1,625 total value guarantee – $1,175 total value of production to count = $450 loss; and
(8) $450 × 100 percent = $450 indemnity payment.
(c) The total production to count (in pounds) from all insurable acreage in the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee (per acre) for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide acceptable production records;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested production may be adjusted for quality deficiencies and excess moisture in accordance with section 13(d)); and
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count.); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested;
(2) All harvested production from the insurable acreage; and
(3) Any other uninsurable mustard production that is delivered to fulfill the processor contract.
(d) Mature mustard may be adjusted for excess moisture and quality deficiencies. If moisture adjustment is applicable, it will be made prior to any adjustment for quality.
(1) Mustard production will be reduced by 0.12 percent for each 0.1 percentage point of moisture in excess of 10.0 percent. We may obtain samples of the production to determine the moisture content.
(2) Mustard production will be eligible for quality adjustment only if:
(i) Deficiencies in quality result in the mustard not meeting the requirements for acceptance under the processor contract because of damaged seeds (excluding heat damage), or a musty, sour, or commercially objectionable foreign odor; or
(ii) Substances or conditions are present that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss in mustard production only if:
(i) The deficiencies, substances, or conditions specified in section 13(d)(2) resulted from a cause of loss specified in section 10 that occurs within the insurance period; and
(ii) The deficiencies, substances, or conditions specified in section 13(d)(2) result in a salvage price less than the base contract price; and
(iii) All determinations of these deficiencies, substances, or conditions specified in section 13(d)(2) are made using samples of the production obtained by us, by the processor identified in the processor contract for the insured acreage, or by a disinterested third party approved by us; and
(iv) The samples are analyzed by a grader in accordance with the Directive for Inspection of Mustard Seed, provided by the Federal Grain Inspection Service or such other directive or standards that may be issued by FCIC.
(4) Mustard production that is eligible for quality adjustment, as specified in sections 13(d)(2) and (3), will be reduced by multiplying the quality adjustment factors contained in the Special Provisions (if quality adjustment factors are not contained in the Special Provisions, the quality adjustment factor is determined by dividing the salvage price by the base contract price (not to exceed 1.000)) by the number of pounds remaining after any reduction due to excessive moisture (the moisture-adjusted gross pounds) of the damaged or conditioned production.
(i) The salvage price will be determined at the earlier of the date such quality adjusted production is sold or the date of final inspection for the unit subject to the following conditions:
(A) Discounts used to establish the salvage price will be limited to those that are usual, customary, and reasonable.
(B) The salvage price will not include any reductions for:
(1) Moisture content;
(2) Damage due to uninsured causes;
(3) Drying, handling, processing, or any other costs associated with normal harvesting, handling, and marketing of the mustard; except, if the salvage price can be increased by conditioning, we may reduce the salvage price, after the production has been conditioned, by the cost of conditioning but not lower than the salvage price before conditioning; and
(ii) We may obtain salvage prices from any buyer of our choice. If we obtain salvage prices from one or more buyers located outside your local market area, we will reduce such price by the additional costs required to deliver the mustard to those buyers.
(iii) Factors not associated with grading under the Directive for Inspection of Mustard Seed, provided by the Federal Grain Inspection Service or such other directive or standards that may be issued by FCIC including, but not limited to, protein and oil will not be considered.
(e) Any production harvested from plants growing in the insured crop may be counted as production of the insured crop on an unadjusted weight basis.
In lieu of section 16(a) of the Basic Provisions, the production guarantee (per acre) for each acre planted to the insured crop during the late planting period will be reduced by 1 percent per day for each day planted after the final planting date, unless otherwise specified in the Special Provisions.
Your prevented planting coverage will be a percentage specified in the actuarial documents of your production guarantee for timely planted acreage. When a portion of the insurable acreage within the unit is prevented from being planted, and there is more than one base contract price applicable to acreage in the unit, the lowest base contract price will be used in calculating any prevented planting payment. If you have additional levels of coverage and pay an additional premium, you may increase your prevented planting coverage if such additional coverage is specified in the actuarial documents.
§ 457.169 Mint crop insurance provisions.
The Mint Crop Insurance Provisions for the 2008 and succeeding crop years are as follows:
Both FCIC and reinsured policies:
Adequate Stand. A population of live mint plants that equals or exceeds the minimum required number of plants or percentage of ground cover, as specified in the Special Provisions.
Appraisal. A method of determining potential production by harvesting and distilling a representative sample of the mint crop.
Cover crop. A small grain crop seeded into mint acreage to reduce soil erosion and wind damage.
Cutting. Severance of the upper part of the mint plant from its stalk and roots.
Distillation. A process of extracting mint oil from harvested mint plants by heating and condensing.
Existing mint. Mint planted for harvest during a previous crop year.
Ground cover. Mint plants, including mint foliage and stolons, grown on insured acreage.
Harvest. Removal of mint from the windrow.
Mint. A perennial spearmint or peppermint plant of the family Labiatae and the genus Mentha grown for distillation of mint oil.
Mint oil. Oil produced by the distillation of harvested mint plants.
New mint. Mint planted for harvest for the first time.
Planted acreage. In addition to the definition in the Basic Provisions, land in which mint stolons have been placed in a manner appropriate for the planting method and at the correct depth into a seedbed that has been properly prepared.
Pound. 16 ounces avoirdupois.
Sales closing date. In lieu of the definition contained in the Basic Provisions, if you select the Winter Coverage Option, application for the Winter Coverage Option will include application for the spring insurance period and must be submitted by the sales closing date for the Winter Coverage Option contained in the Special Provisions. Coverage may not be changed between the end of the Winter Coverage Option insurance period and the beginning of the spring insurance period. If you do not elect the Winter Coverage Option, application must be made by the spring sales closing date contained in the Special Provisions and all policy changes must be made by that date. If you later elect the Winter Coverage Option, you may select your coverage under the Winter Coverage Option.
Stolon. A stem at or just below the surface of the ground that produces new mint plants at its tips or nodes.
Type. A category of mint identified as a type in the Special Provisions.
Windrow. Mint that is cut and placed in a row.
A basic unit, as defined in section 1 of the Basic Provisions, will be divided into additional basic units by each mint type designated in the Special Provisions.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may only select one price election for all the mint in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may only select one price election for each type designated in the actuarial documents. The price elections you choose for each type must have the same percentage relationship to the maximum price election offered by us for each type. For example, if you choose 100 percent of the maximum price election for one specific type, you must also choose 100 percent of the maximum price election for other types.
(b) In addition to the provisions in section 3 of the Basic Provisions, you must report:
(1) The total amount of mint oil produced from insurable acreage for all cuttings for each unit;
(2) Any damage to or removal of mint plants or stolons; any change in practices; or any other circumstance that may reduce the expected yield below the yield upon which the production guarantee is based, and the number of affected acres;
(3) The stand age;
(4) The date existing mint acreage was planted;
(5) The date new mint acreage was initially planted; and
(6) The type of mint.
(c) If you fail to notify us of any circumstance that may reduce your yields or insurable acres from previous levels, we will reduce your production guarantee and insurable acres at any time we become aware of the circumstance based on our estimate of the effect of damage to or removal of mint plants or stolons; stand age; change in practices; and any other circumstance that may affect the yield potential or insurable acres of the insured crop.
In accordance with section 4 of the Basic Provisions, the contract change date is June 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation date is September 30 and the termination date is November 30. If your policy is terminated after insurance has attached for the subsequent crop year, coverage will be deemed not to have attached to the acreage for the subsequent crop year.
(a) In accordance with the provisions of section 8 of the Basic Provisions, the crop insured will be all mint types in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvest and distillation for mint oil;
(3) That have an adequate stand by the date coverage begins; and
(4) That have been:
(i) Inspected and accepted by us for the first crop year you are insured; or
(ii) Certified by you as having an adequate stand on the date coverage begins after the first crop year you are insured unless an inspection is required under section 8(b).
(b) In lieu of the provisions of section 8 of the Basic Provisions that prohibit insurance of a second crop harvested following the same crop in the same crop year, multiple harvests of mint on the same acreage will be considered as one mint crop.
(c) In addition to the coverages provided in these Crop Provisions, you may also elect the Winter Coverage Option in accordance with section 13.
(a) Mint interplanted with a cover crop will not be considered interplanted for the purposes of section 9 of the Basic Provisions if the cover crop is destroyed prior to its maturity and is not harvested as grain.
(b) In addition to the provisions of section 9 of the Basic Provisions, unless allowed by written agreement, we will not insure any acreage that:
(1) Does not meet rotation requirements contained in the Special Provisions; or
(2) Exceeds existing mint age limitations contained in the Special Provisions.
In lieu of the provisions of section 11 of the Basic Provisions:
(a) Coverage begins on each unit or part of a unit for acreage with an adequate stand on the following calendar dates:
(1) June 16 in Indiana, Montana, and Wisconsin;
(2) May 16 in Washington; and
(3) For all other states, the date as provided in the Special Provisions.
(b) For the year of application, for when you have reported planting mint during the Winter Coverage Option insurance period, or for any insurance period following the payment of an indemnity or a reported loss where the crop was determined to not have an adequate stand, we will inspect all mint acreage within the two-week period before coverage begins (If you have elected the Winter Coverage Option, such inspection will occur not later than November 15).
(1) Insurance will attach on the date coverage begins, as specified in section 8(a), unless we inspect the acreage during the two-week period and determine it does not meet insurability requirements as specified in section 2 of the Basic Provisions, the application, or these Crop Provisions.
(2) You must provide any information we require for the crop or to determine the condition of the crop.
(c) Coverage ends for each unit or part of a unit at the earliest of:
(1) Total destruction of the insured crop on the unit;
(2) Final adjustment of a loss;
(3) The final cutting for the crop year;
(4) Abandonment of the crop; or
(5) The following calendar date:
(i) September 30 in Indiana and Wisconsin;
(ii) October 15 in Montana;
(iii) October 31 in Washington; and
(iv) For all other states, the date as provided in the Special Provisions.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects or plant disease (except Verticillium Wilt disease), but not damage due to insufficient or improper application of control measures;
(4) Wildlife;
(5) Earthquake;
(6) Volcanic eruption; or
(7) Failure of the irrigation water supply, if caused by an insured cause of loss listed in sections 9(a)(1) through (6) that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against any loss of production that:
(1) Occurs after harvest;
(2) Is due to your failure to distill the crop, unless such failure is due to actual physical damage to the crop caused by an insured cause of loss that occurs during the insurance period; or
(3) Is due to Verticillium Wilt disease.
In addition to your duties contained in section 14 of the Basic Provisions, if you discover that any insured mint is damaged, or if you intend to claim an indemnity on any unit:
(a) You must give us notice of probable loss at least 15 days before the beginning of any cutting or immediately if probable loss is discovered after cutting has begun or when cutting should have begun; and
(b) You must timely harvest and completely distill a sample of the crop on any acreage you do not intend to harvest, as designated by us, to determine if an indemnity is due.
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate, acceptable production records:
(1) For any optional units, we will combine all optional units for which such production records were not provided; or
(2) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b) We may defer appraisals until the crop reaches maturity or the date mint harvest is general in the area.
(c) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by its respective production guarantee;
(2) Multiplying the result of section 11(c)(1) by the respective price election for each type, if applicable;
(3) Totaling the results of section 11(c)(2);
(4) Multiplying the total production to be counted (see section 11(d)) of each type, if applicable, by its respective price election;
(5) Totaling the results of section 11(c)(4);
(6) Subtracting the result in section 11(c)(5) from the result of section 11(c)(3); and
(7) Multiplying the result in section 11(c)(6) by your share.
For example:
Assume that you have a 100 percent share in 100 acres of peppermint in the unit, with a production guarantee of 50 pounds of oil per acre and a price election of $12 per pound. Because an insured cause of loss has reduced production, you only harvest and distill 2,500 pounds of peppermint oil. Your indemnity would be calculated as follows:
(1) 100 acres × 50 pounds = 5,000 pound production guarantee;
(2) 5,000 pound production guarantee × $12 price election = $60,000 value of production guarantee;
(3) 2,500 pounds production to count × $12 price election = $30,000 value of production to count;
(4) $60,000 − $30,000 = $30,000 loss; and
(5) $30,000 × 100 percent share = $30,000 indemnity payment.
(d) The total production to count (in pounds of oil) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) For which you fail to meet the requirements contained in section 10 of these Crop Provisions;
(D) That is damaged solely by uninsured causes; or
(E) For which you fail to provide production records that are acceptable to us;
(ii) All production lost due to uninsured causes;
(iii) All unharvested production;
(iv) All potential production on insured acreage that you intend to put to another use or abandon with our consent:
(A) If you do not elect to continue to care for the crop, we may give you our consent to put the acreage to another use if you agree to leave intact and provide sufficient care for representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, the amount of production to count will be not less than the production guarantee per acre); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or the appraised production at the time the crop reaches maturity.
(2) All harvested production from the insurable acreage.
(e) Harvested production must be distilled to determine production to count.
(f) Any oil distilled from plants growing in the mint will be counted as mint oil on a weight basis.
(g) You are responsible for the cost of distilling samples for loss adjustment purposes.
The late and prevented planting provisions of the Basic Provisions are not applicable.
(a) The provisions of this option are continuous and will be attached to and made part of your insurance policy if:
(1) You elect the Winter Coverage Option on your application, or on a form approved by us, on or before the fall sales closing date for the crop year in which you wish to insure mint under this option, and pay the additional premium indicated in the actuarial documents for this optional coverage; and
(2) You have not elected coverage under the Catastrophic Risk Protection Endorsement.
(b) This option provides a production guarantee equal to 60 percent of the production guarantee determined under section 3 of these Crop Provisions.
(c) If you elect this option, all of the insurable acreage in the county will be insured by this option.
(d) In addition to the requirements of section 6 of the Basic Provisions, any acreage of new mint planted after the applicable acreage reporting date must be certified by you and reported to us within two weeks of planting.
(e) In lieu of section 6(a) of these Crop Provisions, the crop insured will be all mint types in the county for which a premium rate is provided by the actuarial documents:
(1) In which you have a share;
(2) That are planted for harvest and distillation as mint oil;
(3) That have an adequate stand on the date coverage begins (newly planted mint types must be reported in accordance with section 8(b) but they must be reported as uninsured unless they have an adequate stand by the date coverage begins); and
(4) That has been:
(i) Inspected and accepted by us for the first crop year you are insured (We will inspect all mint acreage and will notify you of the acceptance or rejection of your application not later than November 15. If we fail to notify you by that date, your application will be accepted unless other grounds exist to reject the application, as specified in the Basic Provisions, the application, or these Crop Provisions);
(ii) Inspected and accepted by us not later than November 15 for the crop year following the payment of an indemnity or a reported loss unless the crop was determined to have an adequate stand (If we determined there was an adequate stand after the loss was reported, no inspection is necessary); or
(iii) Certified by you as having an adequate stand on the date coverage begins unless an inspection is required under section 13(e)(4)(ii).
(f) Coverage under this option begins:
(1) On existing mint acreage with an adequate stand at 12:01 a.m. on the calendar date listed below:
(i) October 1 in Indiana and Wisconsin;
(ii) October 16 in Montana;
(iii) November 1 in Washington; and
(iv) For all other states, the date as provided in the Special Provisions.
(2) On new mint acreage, that has an adequate stand by the date coverage begins as specified in section 13(f)(1).
(g) Coverage under this option ends on the unit or part of the unit at 11:59 p.m. on the calendar date listed below:
(1) June 15 in Indiana, Montana, and Wisconsin;
(2) May 15 in Washington; and
(3) For all other states, the date as provided in the Special Provisions.
(h) In lieu of section 10(a) of these Crop Provisions, you must give notice of probable loss within 72 hours after you discover any insured mint is damaged and does not have an adequate stand, but no later than the date coverage ends for this option.
(i) In addition to the requirements of section 10 of these Crop Provisions, you must give us notice if you want our consent to put any mint acreage to another use before a determination can be made if there is an adequate stand on the acreage. We will inspect the acreage and you must agree in writing no payment or indemnity will be made for the acreage put to another use. The total production to be counted for acreage put to another use with our consent in accordance with this section will not be less than the approved yield.
(j) In addition to section 11(a) of these Crop Provisions we will make a Winter Coverage Option payment only on acreage that had an adequate stand on the date that insurance attached if the adequate stand was lost due to an insured cause of loss occurring within the Winter Coverage Option insurance period and the acreage consists of at least 20 acres or 20 percent of the insurable planted acres in the unit.
(k) In lieu of section 11(b) of these Crop Provisions, we may defer appraisals until the date coverage ends under this option.
(l) In lieu of section 11(c) of these Crop Provisions, in the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying 60 percent by your production guarantee per acre;
(2) Multiplying the result in section 13(l)(1) by the number of acres that do not have an adequate stand;
(3) Multiplying the result in section 13(l)(2) by the price election; and
(4) Multiplying the result in section 13(l)(3) by your share.
For example:
Assume that you have a 100 percent share in 100 acres of mint with a production guarantee of 50 pounds of oil per acre and a price election of $12 per pound. Also assume that you do not have an adequate stand on 50 acres by the date coverage ends for this option because an insured cause has damaged the stand. Your Winter Coverage Option payment would be calculated as follows:
(1) 60 percent × 50 pound production guarantee = 30 pound production guarantee per acre;
(2) 30 pound production guarantee per acre × 50 acres without an adequate stand = 1,500 pounds;
(3) 1,500 pounds × $12 price election = $18,000; and
(4) $18,000 × 100 percent share = $18,000 Winter Coverage Option payment.
(m) In lieu of section 11(d) of these Crop Provisions, the population of live mint plants to be counted from insurable acreage on the unit will be not less than the population of live mint plants in an adequate stand for acreage:
(1) That is abandoned;
(2) That is put to another use without our consent;
(3) For which you fail to meet the requirements contained in section 13(h); or
(4) That is damaged solely by uninsured causes.
(n) Acreage for which a Winter Coverage Option payment has been made is no longer insurable under the Crop Provisions for the current crop year. Any mint production subsequently harvested from uninsured acreage for the crop year and not kept separate from production from insured acreage will be considered production to count.
(o) Acreage for which a Winter Coverage Option payment has been made will receive an amount of production of zero when computing subsequent year’s approved yield.
(p) Sections 11(e), (f), and (g) of these Crop Provisions do not apply to this option.
§ 457.170 Cultivated wild rice crop insurance provisions.
The Cultivated Wild Rice Crop Insurance Provisions for the 2009 and succeeding crop years are as follows:
FCIC policies: United States Department of Agriculture, Federal Crop Insurance Corporation.
Reinsured policies: (Appropriate title for insurance provider).
Both FCIC and reinsured policies: Cultivated Wild Rice Crop Provisions.
Approved laboratory. A testing facility approved by us to determine the recovery percentage from samples of cultivated wild rice.
Cultivated Wild Rice. A member of the grass family Zizania Palustris L., adapted for growing in man-made flood irrigated fields known as paddies.
Finished weight.
(a) The green weight delivered to a processor multiplied by the determined recovery percentage;
(b) The green weight stored for seed multiplied by either the determined recovery percentage or the standard recovery percentage in accordance with section 11(d); or
(c) The appraised green weight multiplied by either the determined recovery percentage or the standard recovery percentage in accordance with section 11(d).
Flood irrigation. Intentionally covering the planted acreage with water and maintaining it at a proper depth throughout the growing season.
Green weight. The total weight in pounds of the green cultivated wild rice production that was appraised, delivered to a processor, or stored for seed.
Harvest. Combining or threshing the cultivated wild rice for grain or seed.
Initially planted. The first occurrence of planting the insured crop on insurable acreage for the crop year.
Planted acreage. In addition to the definition contained in the Basic Provisions, land on which an adequate amount of seed is initially spread onto the soil surface by any appropriate method (including shattering for the second and succeeding years) and subsequently is mechanically incorporated into the soil at the proper depth, will be considered planted, unless otherwise provided by the Special Provisions or actuarial documents.
Processor. A business that converts green weight to a product ready for commercial sale using appropriate equipment and methods such as separating immature kernels, fermenting or curing, parching, de-hulling, and scarifying.
Recovery percentage. The ratio of finished weight to green weight of the cultivated wild rice. As specified in section 11(d), the recovery percentage is either:
(a) The determined recovery percentage for a sample as determined by an approved laboratory; or
(b) The standard recovery percentage provided in the Special Provisions.
Shatter. The act of mature seeds naturally falling to the ground from a cultivated wild rice plant.
Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one percentage of the maximum price election for all the cultivated wild rice insured under this policy in the county.
(b) The insurance guarantee per acre is expressed as pounds of finished weight.
In accordance with section 4 of the Basic Provisions, the contract change date is:
(a) November 30 preceding the cancellation date for counties with a February 28 cancellation date; and
(b) June 30 preceding the cancellation date for counties with a September 30 cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
| State | Cancellation date | Termination date |
|---|---|---|
| Mendocino, Glenn, Butte, and Sierra Counties, California; and all California Counties south thereof | February 28 | February 28. |
| Minnesota; All Other California Counties; and All Other States | September 30 | November 30. |
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the cultivated wild rice in the county grown on insurable acreage for which premium rates are provided by the actuarial documents:
(1) In which you have a share;
(2) That is planted for harvest as grain; and
(3) That is grown in man-made flood irrigated fields.
(b) Section 8(b)(3) of the Basic Provisions is not applicable to the cultivated wild rice seed that naturally shatters and is subsequently mechanically incorporated into the soil.
In accordance with section 11 of the Basic Provisions, the calendar date for the end of the insurance period is:
(a) For Minnesota, September 30 of the calendar year the crop is normally harvested;
(b) For California, October 15 of the calendar year the crop is normally harvested; and
(c) For all other states, the date provided in the Special Provisions.
(a) In accordance with section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects, but not damage due to insufficient or improper application of pest control measures;
(4) Plant disease, but not damage due to insufficient or improper application of disease control measures;
(5) Wildlife;
(6) Earthquake;
(7) Volcanic eruption; or
(8) Failure of the irrigation water supply, if caused by a cause of loss specified in sections 8(a)(1) through (7) that occurs during the insurance period, drought, or the intrusion of saline water.
(b) In addition to the causes not insured against in section 12 of the Basic Provisions, we will not insure against any loss of production due to:
(1) The crop not being timely harvested unless such delay in harvesting is solely and directly due to adverse weather conditions which preclude harvesting equipment from entering and moving about the field; or
(2) The application of saline water, except as specified in section 8(a) of these crop provisions.
The provisions of section 13 of the Basic Provisions are not applicable.
Representative samples are required in accordance with section 14 of the Basic Provisions.
(a) We will determine your loss on a unit basis. In the event you are unable to provide records of production that are acceptable to us for any:
(1) Optional unit, we will combine all optional units for which such production records were not provided; or
(2) Basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee;
(2) Multiplying the result in section 11(b)(1) by the respective price election;
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to be counted, (see section 11(c) through (d)) by the respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the result of section 11(b)(5) from the result of section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share.
For example:
You have a 100 percent share in 100 acres of cultivated wild rice in the unit, with a guarantee of 400 pounds per acre and a price election of $1.00 per pound. You are only able to harvest 20,000 pounds. Your indemnity would be calculated as follows:
(1) 100 acres × 400 pounds = 40,000 pound guarantee;
(2) 40,000 pounds × $1.00 per pound price election = $40,000 value of guarantee;
(3) 20,000 pounds × $1.00 per pound price election = $20,000 value of production to count;
(4) $40,000 − $20,000 = $20,000 loss; and
(5) $20,000 × 100 percent share = $20,000 indemnity payment.
(c) The total production to count (finished weight) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) Put to another use without our consent;
(C) Damaged solely by uninsured causes; or
(D) For which you fail to provide records of production that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production (mature unharvested green weight production must be adjusted in accordance with section 11(d)); and
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(d) Mature green weight will be multiplied by the recovery percentage subject to the following:
(1) We may obtain samples of the production to determine the recovery percentage.
(2) The determined recovery percentage will be used to calculate your loss only if:
(i) All determined recovery percentages are established using samples of green weight production obtained by us or by the processor for sold or processed production; and
(ii) The samples are analyzed by an approved laboratory.
(3) If the conditions of section 11(d)(2) are not met, the standard recovery percentage will be used.
The provisions of section 16 of the Basic Provisions are not applicable.
The provisions of section 17 of the Basic Provisions are not applicable.
§ 457.171 Cabbage crop insurance provisions.
The Cabbage Crop Insurance Provisions for the 2023 and succeeding crop years in counties with a contract change date of November 30, and for the 2024 and succeeding crop years in counties with a contract change date of April 30, are as follows:
FCIC policies: United States Department of Agriculture, Federal Crop Insurance Corporation.
Reinsured policies: (Appropriate title for insurance provider).
Both FCIC and reinsured policies: Cabbage Crop Insurance Provisions.
Cabbage. Plants of the family Brassicaceae and the genus Brassica, grown for their compact heads and used for human consumption.
Crop year. In lieu of the definition contained in section 1 of the Basic Provisions, a period of time that begins on the first day of the earliest planting period and continues through the last day of the insurance period for the latest planting period. The crop year is designated by the calendar year in which the cabbage planted in the latest planting period is normally harvested.
Damaged cabbage production. Fresh market cabbage that fails to grade U.S. Commercial or better in accordance with the United States Standards for Grades of Cabbage, or processing cabbage that fails to grade U.S. No. 2 or better in accordance with the United States Standards for Grades of Cabbage for Processing due to an insurable cause of loss.
Harvest. Cutting of the cabbage plant to sever the head from the stalk.
Hundredweight. One hundred pounds avoirdupois.
Inspected transplants. Cabbage plants that have been found to meet the standards of the public agency responsible for the inspection process within the State in which they are grown.
Marketable cabbage. Cabbage that is sold or grades at least:
(a) U.S. Commercial for fresh market cabbage; or
(b) U.S. No. 2 for processing cabbage.
Planted acreage. In addition to the definition contained in section 1 of the Basic Provisions, cabbage plants and seeds must initially be planted in rows wide enough to permit mechanical cultivation. Cabbage planted or seeds planted in any other manner will not be insurable unless otherwise provided by the Special Provisions, actuarial documents, or by written agreement.
Processor. Any business enterprise regularly engaged in processing cabbage for human consumption, that possesses all licenses and permits for processing cabbage required by the State in which it operates, and that possesses facilities, or has contractual access to such facilities, with enough equipment to accept and process the contracted cabbage within a reasonable amount of time after harvest.
Processor contract. A written contract between the producer and the processor, containing at a minimum:
(a) The producer’s commitment to plant and grow cabbage, and to sell and deliver the cabbage production to the processor;
(b) The processor’s commitment to purchase all the production stated in the processor contract; and
(c) A price per hundredweight that will be paid for the production.
Timely planted. In lieu of the definition contained in section 1 of the Basic Provisions, cabbage planted during a planting period designated in the Special Provisions.
Type. A category of cabbage as designated in the Special Provisions.
(a) A basic unit, as defined in section 1 of the Basic Provisions, will also be divided into additional basic units by planting period if separate planting periods are designated in the Special Provisions.
(b) In addition to the requirements of section 34 of the Basic Provisions, optional units may also be established by type if separate types are designated in the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one price election for all the cabbage in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may select one price election for each cabbage type designated in the actuarial documents.
(b) The price elections you choose for each type must bear the same percentage relationship to the maximum price election offered by us for each type. For example, if you selected 100 percent of the maximum price election for one type, you must also select 100 percent of the maximum price election for all other types.
In accordance with the provisions of section 4 of the Basic Provisions, the contract change dates are the following calendar dates preceding the cancellation dates:
(a) April 30 in Florida; Georgia; and Texas;
(b) November 30 in Alaska; Michigan; New Jersey, New York; North Carolina; Ohio; Oregon; Pennsylvania; Virginia; Washington; and Wisconsin; or
(c) As designated in the actuarial documents for all other states and counties.
In accordance with the provisions of section 2 of the Basic Provisions, the cancellation and termination dates are:
| State and counties | Cancellation and termination dates |
|---|---|
| Georgia, Texas | July 1. |
| Florida | August 15. |
| Oregon, Washington | February 1. |
| North Carolina | February 28. |
| Alaska, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin | March 15. |
| All other states and counties | As designated in the Special Provisions. |
In addition to the provisions of section 6 of the Basic Provisions, to insure your processing cabbage, you must provide a copy of all your processor contracts to us on or before the acreage reporting date.
(a) In accordance with the provisions of section 8 of the Basic Provisions, the crop insured will be all the cabbage types in the county for which a premium rate is provided by the actuarial documents, in which you have a share, and that are:
(1) Planted with inspected transplants, if such transplants are required by the Special Provisions;
(2) If direct seeded, planted with hybrid seed unless otherwise permitted by the Special Provisions;
(3) Planted within the planting periods as designated in the Special Provisions;
(4) Planted to be:
(i) Harvested and sold as fresh cabbage; or
(ii) Grown and sold as processing cabbage in accordance with the requirements of a processor contract executed on or before the acreage reporting date and not excluded from the processor contract at any time during the crop year; and
(5) Unless allowed by the Special Provisions:
(i) Not interplanted with another crop; and
(ii) Not sold by direct marketing.
(b) Under the processor contract, you will be considered to have a share in the insured crop to the extent you retain control of the acreage on which the cabbage is grown, your income from the insured crop is dependent on the amount of production delivered, and the processor contract provides for delivery of the cabbage under specified conditions and at a stipulated price.
(c) A processing cabbage producer who is also a processor may establish an insurable interest if the following additional requirements are met:
(1) The producer must comply with these Crop Provisions;
(2) Prior to the sales closing date, the Board of Directors or officers of the processor must execute and adopt a resolution that contains the same terms as an acceptable processor contract. Such resolution will be considered a processor contract under this policy; and
(3) Our inspection reveals that the processing facilities comply with the definition of “processor” contained in these Crop Provisions.
In addition to the provisions of section 9 of the Basic Provisions:
(a) We will not insure any acreage that does not meet the rotation requirements contained in the Special Provisions.
(b) Any acreage of the insured crop damaged before the end of the planting period, to the extent that a majority of producers in the area would normally not further care for the crop, must be replanted unless we agree that it is not practical to replant.
(c) For processing cabbage, insurable acreage will be:
(1) For acreage only based processor contracts, and acreage and production based processor contracts which specify a maximum number of acres, the lesser of:
(i) The planted acres; or
(ii) The maximum number of acres specified in the contract;
(2) For production only based processor contracts, the lesser of:
(i) The number of acres determined by dividing the production stated in the processor contract by the approved yield; or
(ii) The planted acres.
(a) In lieu of the provisions of section 11 of the Basic Provisions, coverage begins on each unit or part of a unit the later of:
(1) The date we accept your application; or
(2) When the cabbage is planted in each planting period.
(b) In addition to the provisions of section 11 of the Basic Provisions, the end of the insurance period will be the earlier of:
(1) The date the crop should have been harvested; or
(2) The following applicable calendar date after planting;
(i) Alaska: October 1;
(ii) Florida:
(A) February 15 for the fall planting period;
(B) April 15 for the winter planting period; and
(C) May 31 for the spring planting period;
(iii) Georgia:
(A) January 15 for the fall planting period; and
(B) June 15 for the spring planting period;
(iv) Michigan, New Jersey, and Ohio:
(A) September 30 for the spring planting period; and
(B) November 25 for the summer planting period;
(v) New York and Pennsylvania: November 25;
(vi) North Carolina:
(A) July 10 for the spring planting period; and
(B) December 31 for the fall planting period;
(vii) Oregon:
(A) March 1 for all fall Red (Fresh) and Green (Fresh) types; and
(B) December 31 for all other types and planting periods;
(viii) Texas:
(A) December 31 for the summer planting period;
(B) February 15 for the fall planting period; and
(C) April 30 for the winter planting period;
(ix) Virginia:
(A) July 31 for the early spring planting period; and
(B) November 15 for the summer planting period;
(x) Washington: December 31;
(xi) Wisconsin: November 5; and
(xii) All other states and counties as provided in the Special Provisions.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Wildlife;
(4) Insects or plant disease, but not damage due to insufficient or improper application of control measures;
(5) Earthquake;
(6) Volcanic eruption; or
(7) Failure of the irrigation water supply, if caused by a cause of loss specified in sections 10(a)(1) through (6) that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to:
(1) Failure to market the cabbage for any reason other than actual physical damage from an insured cause of loss that occurs during the insurance period (For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production, etc.); or
(2) Damage that occurs or becomes evident after the end of the insurance period, including, but not limited to, damage that occurs or becomes evident after the cabbage has been placed in storage.
(a) In accordance with the provisions of section 13 of the Basic Provisions, a replanting payment is allowed if the crop is damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage and it is practical to replant.
(b) No replanting payment will be made on acreage planted prior to the initial planting date or after the end of the final planting period as designated by the Special Provisions.
(c) In accordance with the provisions of section 13(c) of the Basic Provisions, the maximum amount of the replanting payment per acre is the number of hundredweight specified in the Special Provisions multiplied by your price election, multiplied by your insured share. The fresh market cabbage price election will be used to determine processing cabbage replanting payments in counties where both fresh market and processing cabbage are insurable.
(d) When the insured crop is replanted using a practice that is uninsurable as an original planting, the liability for the unit will be reduced by the amount of the replanting payment attributable to your share. The premium will not be reduced.
(e) In lieu of the provisions contained in section 13 of the Basic Provisions that limit a replanting payment to one each crop year, only one replanting payment will be made for acreage replanted during each planting period within the crop year, if separate planting periods are allowed by the Special Provisions.
(a) Failure to meet the requirements of this section will result in an appraised amount of production to count of not less than the production guarantee per acre if such failure results in our inability to make the required appraisal.
(b) In lieu of the provisions of section 14(b)(1) of the Basic Provisions, so that we may inspect the insured crop, you must give us notice within 72 hours of your initial discovery of damage if such discovery occurs more than 15 days prior to harvest of the acreage.
(c) In addition to the provisions of section 14 of the Basic Provisions, so that we may inspect the insured crop, you must give us notice:
(1) Immediately if damage is discovered 15 days or less prior to the beginning of harvest or during harvest.
(2) At least 15 days prior to the beginning of harvest, if direct marketing of the insured crop is allowed by the Special Provisions, and you intend to direct market any of the crop.
(3) At least 15 days before the earlier of:
(i) The date harvest would normally start if any acreage on the unit will not be harvested; or
(ii) The beginning of harvest, if any production will be harvested for a use other than as indicated on the acreage report.
(d) After you have provided the applicable notice required by sections 12(b) and (c), we will conduct an appraisal to determine your production to count for the purposes of section 13(d).
(1) Except as provided in section 12(e), you must not dispose of or sell the damaged crop, or store the insured crop, until after we have appraised it and given you written consent to do so.
(2) If additional damage occurs after this appraisal, except for stored cabbage, we will conduct another appraisal.
(3) These appraisals, and any acceptable records provided by you, will be used to determine your production to count in accordance with section 13(d).
(e) In accordance with the requirements of section 14(c) of the Basic Provisions, if you initially discover damage to any insured cabbage within 15 days of or during harvest, you must leave representative samples of the unharvested crop for our inspection. The samples must be at least 3 rows wide and extend the entire length of each field in the unit and must not be harvested or destroyed until the earlier of our inspection or 15 days after completion of harvest on the unit.
(a) We will determine your loss on a unit basis.
(1) In the event you are unable to provide separate acceptable production records:
(i) For any optional units, we will combine all optional units for which such production records were not provided; and
(ii) For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(2) For any processor contract that stipulates only the amount of production to be delivered, and notwithstanding the provisions of this section or any unit division provisions contained in the Basic Provisions, no indemnity will be paid for any loss of production on any unit if you produced a crop sufficient to fulfill the processor contract(s) forming the basis of the insurance guarantee;
(b) The extent of any damaged cabbage production must be determined not later than the date the cabbage is placed in storage if the production is stored prior to sale, or the date the cabbage is delivered to a buyer, wholesaler, packer, processor, or other handler if production is not stored.
(c) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insurable acreage by its respective production guarantee (per acre), by type if applicable;
(2) Multiplying each result in section 13(c)(1) by the respective price election, by type if applicable;
(3) Totaling the results in section 13(c)(2);
(4) Multiplying the total production to count of each type, if applicable (see section 13)(d)), by its respective price election;
(5) Totaling the results in section 13(c)(4);
(6) Subtracting the results in section 13(c)(5) from the results of section 13(c)(3); and
(7) Multiplying the result in section 13(c)(6) by your share.
For example:
For a basic unit you have 100 percent share in 100 acres of cabbage, 50 acres for fresh market and 50 acres for processing as sauerkraut, with a production guarantee (per acre) of 400 hundredweight per acre for fresh market and 400 hundredweight per acre for processing as sauerkraut and a price election of $5.00 per hundredweight for fresh market and $1.90 per hundredweight for processing as sauerkraut. You are only able to harvest 9,000 hundredweight of fresh market cabbage and 9,000 hundredweight of cabbage for sauerkraut because an insured cause of loss has reduced production. Your total indemnity would be calculated as follows:
(1) 50 acres × 400 hundredweight = 20,000 hundredweight guarantee for the fresh market acreage.
50 acres × 400 hundredweight = 20,000 hundredweight guarantee for the processing as sauerkraut acreage.
(2) 20,000 hundredweight guarantee × $5.00 price election = $100,000 value of guarantee for the fresh market cabbage.
20,000 hundredweight guarantee × $1.90 price election = $38,000 value of guarantee for processing as sauerkraut.
(3) $100,000 + $38,000 = $138,000 total value of guarantee.
(4) 9,000 hundredweight × $5.00 price election = $45,000 value of production to count for the fresh market acreage.
9,000 hundredweight × $1.90 price election = $17,100 value of production to count for the acreage for processing as sauerkraut.
(5) $45,000 + $17,100 = $62,100 total value of production to count.
(6) $138,000 −$62,100 = $75,900 loss.
(7) $75,900 × 100 percent share = $75,900 indemnity payment.
(d) The total production to count (in hundredweight) of marketable cabbage from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee (per acre) for acreage:
(A) That is abandoned;
(B) For which you fail to meet the requirements contained in section 12;
(C) That is put to another use without our consent;
(D) That is damaged solely by uninsured causes; or
(E) For which you fail to provide production records that are acceptable to us;
(ii) All production lost due to uninsured causes;
(iii) All unharvested marketable production;
(iv) All potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us. (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage.
(e) Mature production that is considered damaged cabbage production but is sold will be adjusted for quality as follows:
(1) Dividing the amount received per hundredweight of such damaged cabbage production by the applicable price election; and
(2) Multiplying the result by the number of hundredweight of damaged cabbage production.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.172 Coverage Enhancement Option.
The Coverage Enhancement Option for the 2009 and succeeding crop years are as follows:
FCIC policies: United States Department of Agriculture, Federal Crop Insurance Corporation.
Reinsured policies: (Appropriate title for insurance provider).
Both FCIC and reinsured policies: Coverage Enhancement Option.
Both FCIC and reinsured policies:
CEO coverage level. The coverage level percentage contained in the actuarial documents where the Coverage Enhancement Option (CEO) is available and selected by you. This percentage is applicable under the combined MPCI/CEO policy when losses under the MPCI policy exceed the deductible and an indemnity is owed.
CEO dollar amount of insurance. The value of the additional insurance coverage for each unit provided by the CEO, which is determined by multiplying the CEO coverage level by the total value of the insured crop by unit and subtracting the MPCI dollar amount of insurance.
MPCI. Multiple Peril Crop Insurance, the plan of insurance offered by the Federal Crop Insurance Corporation as published at 7 CFR part 457.
MPCI coverage level. The coverage level percentage you selected in the underlying MPCI policy to which CEO is attached.
MPCI dollar amount of insurance. The value of the insurance coverage for each unit provided under the MPCI policy (the amount of insurance selected by you for dollar or similar plans of insurance, multiplied by the number of acres in the unit if such amount of insurance is on a per acre basis, or the amount determined by multiplying your production guarantee (per acre), times the price election, times the number of acres in the unit).
MPCI indemnity. The indemnity determined for each unit under the MPCI policy to which CEO is attached, not including replant and prevented planting payments or any indemnity payable under CEO.
MPCI indemnity factor. A factor determined by dividing the MPCI indemnity by the MPCI dollar amount of insurance for each unit. This factor is used to ensure that the indemnity paid under the CEO is proportional to the amount of loss and indemnity paid under the MPCI policy.
Total value of the insured crop by unit. The value of the crop that is determined by dividing the MPCI dollar amount of insurance for each unit by the MPCI coverage level.
2. CEO is only available for insured crops where the actuarial documents contain a CEO coverage level. If there is a conflict between the terms of CEO and any other provision of your policy, the terms of the CEO will control.
3. To be eligible for CEO coverage on the insured crop, you must:
(a) Have an MPCI policy in force for the insured crop (or for citrus fruit, citrus trees, and stone fruit or other crops, as applicable, the insured type) and comply with all terms and conditions of such policy.
(b) Elect CEO in writing and choose a CEO coverage level (at least 5 percent higher than the MPCI coverage level), by the sales closing date for the insured crop.
(c) Elect a level of coverage greater than the Catastrophic Risk Protection (CAT) coverage level and a 100 percent price election. CEO is not available for the CAT level of coverage.
4. CEO is continuous and will remain in effect for as long as you continue to have a MPCI policy in effect for the insured crop, the actuarial documents contain a CEO coverage level, or until it is canceled by you or terminated by us on or before the cancellation or termination date, as applicable.
5. The premium for your policy will be determined by:
(a) Totaling the MPCI dollar amount of insurance and the CEO dollar amount of insurance; and
(b) Multiplying the result of section 5(a) by the premium rate for the insured crop applicable to your MPCI coverage level
6. With respect to the coverage provided under CEO:
(a) All acreage of the insured crop insured under your MPCI policy will be covered under the CEO;
(b) The amount of any replant or prevented planting payment that is payable under the MPCI policy will not be affected by the CEO;
(c) An indemnity will be payable under the CEO only after the underlying MPCI deductible is met and an MPCI indemnity is paid; and
(d) The total indemnity for each unit (MPCI coverage plus CEO) cannot exceed the combination of both the MPCI and CEO dollar amounts of insurance.
7. If you elect CEO and a MPCI indemnity is paid on any unit, CEO will pay a portion of the loss not paid under the deductible of the MPCI policy depending on the CEO coverage level you select (For example, if you selected a 50 percent MPCI coverage level, selected an 85 percent CEO coverage level, and had 60 percent loss of the insured crop, the total amount of indemnity paid under both the MPCI policy and the CEO would be equal to approximately 51 percent of the total value of the insured crop by unit). See the example in section 8.
8. In addition to the settlement of claim section for the applicable Crop Provisions, your indemnity will be computed for each unit as follows:
(a) Determine the MPCI indemnity factor;
(b) Determine the total value of the insured crop by unit;
(c) Determine the CEO dollar amount of insurance; and
(d) Multiply the MPCI indemnity factor times the CEO dollar amount of insurance to determine the indemnity under the CEO.
Your indemnity would be calculated as follows:
(a) $72,000 MPCI loss ÷ by $120,000 MPCI dollar amount of insurance = .60 MPCI indemnity factor;
(b) $120,000 MPCI dollar amount of insurance, divided by the MPCI coverage level of .50 results in $240,000 total value of the insured crop by unit;
(c) $240,000 total value of the insured crop by unit multiplied by the CEO coverage level .85, equals $204,000, and subtracting $120,000 MPCI dollar amount of insurance equals $84,000 CEO dollar amount of insurance;
(d) .60 MPCI indemnity factor × $84,000 CEO dollar amount of insurance = $50,400 unit indemnity under the CEO.
The total unit indemnity is $122,400 ($72,000 MPCI indemnity plus $50,400 CEO indemnity).
§ 457.173 Florida Avocado crop insurance provisions.
The Florida Avocado Crop Insurance Provisions for the 2023 and succeeding crop years are as follows:
FCIC policies:
United States Department of Agriculture Federal Crop Insurance Corporation
Reinsured policies: (Appropriate title for insurance provider)
Both FCIC and reinsured policies: Florida Avocado Crop Insurance Provisions.
Bushel. A unit of measure equal to 55 pounds of avocados, unless otherwise specified in the Special Provisions.
Buckhorn. To prune any limb at a diameter of at least four inches.
Crop year. A period beginning with the date insurance attaches to the avocado crop and extending through the normal harvest time. The crop year is designated by the calendar year after insurance attaches.
Harvest. Picking of the avocados from the trees or ground by hand or machine.
Pound. A unit of weight equal to sixteen ounces avoirdupois.
Set out. Transplanting a tree into the grove.
Type. Early varieties, mid varieties, or late varieties of avocados, as specified in the Special Provisions.
Provisions in section 34 of the Basic Provisions that allow optional units by section, section equivalent, or FSA farm number and by irrigated and non-irrigated practices are not applicable. Optional units may be established by type when provided for in the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one coverage level for all the avocados in the county insured under this policy unless the Special Provisions provide that you may select a different coverage level for each avocado type designated in the Special Provisions. However, if you elect the Catastrophic Risk Protection (CAT) level of coverage, the CAT level of coverage will be applicable to all types of avocados you produce in the county.
(b) You may select only one price election for all the avocados in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may select one price election for each avocado type designated in the actuarial documents. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must choose 100 percent of the maximum price election for the other type. However, if you elect the CAT level of coverage, the price election percentage will be equal to 55 percent of the applicable price election for each type of avocado you produce in the county.
(c) You must report, by the production reporting date designated in section 3 of the Basic Provisions, by type, if applicable:
(1) Any damage, removal of trees, trees that have been buckhorned, change in grove practices, or any other circumstance that may reduce the expected yield per acre to less than the yield upon which the production guarantee per acre is based, and the number of affected acres;
(2) The number of trees on insurable and uninsurable acreage;
(3) The age of the trees;
(4) Any acreage that is excluded under section 6 of these Crop Provisions; and
(5) For acreage interplanted with another crop:
(i) The age of the interplanted crop, and type, if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to establish your production guarantee per acre.
(d) We will reduce the yield used to establish your production guarantee as necessary, based on the effect of interplanting a perennial crop; removal of trees; trees that have been buckhorned; damage; or a change in practices on the yield potential of the insured crop. If you fail to notify us of any circumstance as set out in paragraph (c) of this section, we will reduce your production guarantee as necessary at any time we become aware of the circumstance.
In accordance with section 4 of the Basic Provisions, the contract change date is August 31 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are the first November 30th after insurance attaches.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the commercially grown avocado types for which a premium rate is provided by the actuarial documents for the county:
(1) In which you have a share;
(2) That are grown for harvest as avocados; and
(3) That are grown on trees that, if inspected, are considered acceptable to us.
(b) In addition to the avocados not insurable in section 8 of the Basic Provisions, we do not insure any avocados produced on trees that have not:
(1) Reached the fourth leaf year; and
(2) Produced the minimum production per acre as specified in the Special Provisions in at least one of the previous three crop years.
In lieu of the provisions in section 9 of the Basic Provisions that prohibits insurance attaching to a crop planted with another crop, avocados interplanted with another perennial crop are insurable unless we inspect the acreage and determine it does not meet the requirements of insurability contained in these Crop Provisions.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) For the year of application:
(i) If you apply for coverage on or before November 21st, coverage begins for the crop year on December 1 of the calendar year; or
(ii) If you apply for coverage after November 21 but prior to December 1, insurance will attach on the 10th day after your properly completed application is received in our local office, unless we inspect the acreage during the 10-day period and determine that it does not meet the requirements for insurability contained in your policy.
(iii) You must provide any information we require so we may determine the condition of the grove to be insured.
(2) For continuous policies, coverage begins for the crop year on December 1 of the calendar year. Policy cancellation that results solely from transferring an existing policy to a different insurance provider for a subsequent crop year will not be considered a break in continuous coverage.
(3) The calendar date for the end of the insurance period, unless otherwise specified in the Special Provisions, is:
(i) The first November 30th after insurance attaches for early varieties and mid varieties of avocados.
(ii) The second March 31st after insurance attaches for late varieties of avocados.
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) If you acquire an insurable share in any insurable acreage of avocados after coverage begins, but on or before the acreage reporting date of any crop year, and if after inspection we consider the acreage acceptable, then insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable share on any acreage of avocados on or before the acreage reporting date of any crop year, insurance will not be considered to have attached to, no premium will be due and no indemnity paid for, such acreage for that crop year unless:
(i) A transfer of coverage and right to an indemnity or a similar form approved by us is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur within the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the grove;
(3) Wildlife, unless control measures have not been taken;
(4) Earthquake;
(5) Volcanic eruption;
(6) Failure of the irrigation water supply caused by an insured peril specified in section 9(a)(1) through (5) that occurs during the insurance period.
(7) Insects, but not damage due to insufficient or improper application of pest control measures; and
(8) Plant disease, but not due to insufficient or improper application of disease control measures.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to:
(1) Theft; or
(2) Inability to market the avocados for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production, etc.
In addition to the requirements of section 14 of the Basic Provisions, the following will apply:
(a) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested.
(1) We will conduct a preharvest appraisal that will be used to determine your production. If damage occurs after the preharvest appraisal, and you can provide acceptable records to us that account for all production removed from the unit after our appraisal, we will conduct an additional appraisal that will be used to determine your production.
(2) Failure to give timely notice that production will be harvested for direct marketing will result in an appraised production to count of not less than the production guarantee per acre if such failure results in an inability to make an accurate appraisal.
(b) If you intend to claim an indemnity on any unit, you must notify us 15 days prior to the beginning of harvest or immediately if damage is discovered during harvest so that we may inspect the damaged production.
(1) You must not destroy the damaged crop until after we have given you written consent to do so.
(2) If you fail to meet the requirements of this subsection, and such failure results in our inability to inspect the damaged production, we may consider all such production to be undamaged and include it as production to count.
(a) We will determine your loss on a unit basis. In the event you are unable to provide production records:
(1) For any optional unit, we will combine all optional units for which acceptable production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type, if applicable, by its respective production guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective price election for each type, if applicable;
(3) Totaling the results in section 11(b)(2);
(4) Multiplying the total production to be counted (see section 11(c)) by type, if applicable, by the respective price election;
(5) Totaling the results in section 11(b)(4);
(6) Subtracting the results in section 11(b)(5) from the results in section 11(b)(3); and
(7) Multiplying the result in section 11(b)(6) by your share.
For example:
You have a 100 percent share in 50 acres of early variety A in the unit, with a guarantee of 140 bushels per acre and a price election of $16.00 per bushel. You are only able to harvest 6,000 bushels due to an insured cause of loss. Your indemnity would be calculated as follows:
(1) 50 acres × 140 bushels = 7,000 bushel guarantee;
(2) 7,000 bushels × $16.00 price election = $112,000.00 value of guarantee;
(4) 6,000 bushels × $16.00 price election = $96,000.00 value of production to count;
(6) $112,000.00 − $96,000.00 = $16,000 loss; and
(7) $16,000 × 100 percent = $16,000 indemnity.
(c) The total production to count from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee for acreage:
(A) That is abandoned;
(B) That is sold by direct marketing if you fail to meet the requirements contained in section 10 of these Crop Provisions;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production;
(iv) Potential production on insured acreage that you intend to abandon or no longer care for, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end. If you do not agree with our appraisal, we may defer the claim only if you agree to continue to care for the crop. We will then make another appraisal when you notify us of further damage or that harvest is general in the area unless you harvested the crop, in which case we will use the harvested production. If you do not continue to adequately care for the crop, our appraisal made prior to deferring the claim will be used to determine the production to count; and
(2) All harvested production from the insurable acreage.
The late and prevented planting provisions of the Basic Provisions are not applicable.
§ 457.174 Forage Seed crop insurance provisions.
The forage seed crop provisions for the 2015 and succeeding crop years are as follows:
Actual value. The dollar value received, or that could be received, for the forage seed if the forage seed production is properly handled in accordance with the requirements in the forage seed contract or the applicable certifying agency’s requirements.
Adequate stand. A population of live plants that equals or exceeds the minimum required number of plants per square foot as shown in the actuarial documents.
Amount of insurance. The amount obtained by multiplying the production guarantee per acre for each type and practice in the unit by the insured acreage of that type and practice, by the applicable base price, and by the percentage of base price you elected. The total of these results will be the amount of insurance for the unit.
Base price. For seed under a forage seed contract, the price per pound (excluding any discounts or incentives that may apply) stated in the forage seed contract. For certified forage seed not under a forage seed contract, and for forage seed producers who are also forage seed companies, the price contained in the actuarial documents.
Certification application. The form used to request certification of forage seed by the certifying agency.
Certification standards. The standards and procedures of the certification agency to assure genetic purity and identity of the seed certified.
Certified forage seed. Forage seed that meets the certification standards administered by a certifying agency at the time of harvest and that has been grown under a certification application accepted by the certifying agency on or before the acreage reporting date or as otherwise specified in the Special Provisions.
Certifying agency. An agency authorized under the laws of a State, Territory, or possession, to officially certify seed, which has standards and procedures to assure the genetic purity and identity of the seed certified, and approves certification applications for the certified forage seed that meets the certification standards at time of harvest.
Established stand. An adequate stand of live plants for crop years after the seed-to-seed year.
Fall planted. Forage seed crop planted after May 31 of the previous crop year.
Forage seed company. A business enterprise that possesses all licenses for marketing forage seed required by the state in which it is domiciled or operates, and which possesses facilities with enough storage and capacity to accept and process the insured crop timely.
Forage seed contract. A written contract executed between the forage seed crop producer and a forage seed company containing, at a minimum:
(a) The producer’s commitment to plant, grow, and deliver the forage seed produced from such plants to the seed company;
(b) The seed company’s commitment to purchase all the production from a specified number of acres or the specified quantity of production stated in the contract; and
(c) Either a fixed price per unit of the forage seed or a formula to determine the price per unit value of such seed. Any formula for establishing value must be specified in the written contract. If the formula uses a future price that is settled after the applicable acreage reporting date, then the base price contained in the actuarial documents will apply.
Forage seed crop. Small-seeded legume plants grown for seed (e.g., alfalfa, clovers, etc.), including those grown for the production of hybrid seed, as shown in the actuarial documents.
Harvest. Removal of seed from the windrow or field.
Pound. Sixteen (16) ounces avoirdupois.
Price election. In lieu of the definition in section 1 of the Basic Provisions, the price election will be the base price and will be used for the purposes of determining premium and indemnity under the policy.
Qualified seed testing laboratory. Laboratory qualified by the State to test the forage seed to determine whether it qualifies as certified forage seed.
Seed-to-seed year. The calendar year in which planting occurs for spring planted forage seed and the subsequent calendar year for fall planted forage seed.
Spring planted. Forage seed crop planted before June 1 of the current crop year.
In lieu of the optional unit provisions in section 34 of the Basic Provisions, you may select optional units by forage seed contract or variety if permitted by the Special Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may elect only one percentage of base price and one coverage level for each forage seed crop you elect to insure, grown in the county, and designated in the actuarial documents. If separate base prices are available by forage seed crop type, the percentage election of base price and coverage level you choose for each forage seed crop type must be the same. For example, if you choose 100 percent of the base price and 65 percent coverage level for a specific forage seed crop type, you must choose 100 percent of the base price and 65 percent coverage level for all the forage seed crop types.
(b) For each unit, separate guarantees will be determined by forage seed crop type and practice.
In accordance with section 4 of the Basic Provisions, the contract change date is June 30 preceding the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are:
(a) In addition to the requirements of section 6 of the Basic Provisions, you must submit to us, on or before the acreage reporting date or as otherwise specified in the Special Provisions:
(1) A copy of your forage seed contract for your contracted forage seed acreage; or
(2) A copy of the accepted certification application for your certified seed acreage.
(b) Failure to provide a copy of the forage seed contract or the certification application accepted by the certifying agency by the acreage reporting date or the date otherwise specified in the Special Provisions will result in denial of liability and no indemnity due.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all types and practices of each forage seed crop you elect to insure, that is grown in the county and for which a premium rate is provided by the actuarial documents:
(1) In which you have a share; and
(2) That is grown for harvest as:
(i) Certified forage seed; or
(ii) Seed grown under a forage seed contract executed on or before the acreage reporting date or the date otherwise specified in the Special Provisions.
(b) For contracted acreage of forage seed crops only, you will not be considered to have a share in the insured crop unless, under the terms of the forage seed contract, you are at risk of a financial loss at least equal to the amount of insurance on such acreage.
(c) In addition to the crop and acreage listed as not insured in sections 8 and 9 of the Basic Provisions, we will not insure any forage seed crop that:
(1) Is interplanted with another crop, unless otherwise specified in the Special Provisions;
(2) Is planted into an established grass or legume;
(3) Does not have an adequate stand at the beginning of the insurance period unless otherwise specified in the Special Provisions;
(4) Exceeds the age limitations for the forage seed crop or type contained in the Special Provisions; or
(5) Is utilized for any purpose during the crop year other than for seed production, unless otherwise specified in the Special Provisions.
(d) A forage seed producer who is also a forage seed company may establish an insurable interest if the following requirements are met:
(1) The producer must comply with these Crop Provisions; and
(2) All the forage seed grown by the forage seed company is enrolled with the appropriate certifying agency.
(a) Insurance attaches on acreage with an adequate stand on the later of the date we accept your application or the applicable date as follows, unless provided otherwise in the Special Provisions:
(1) For fall planted seed-to-seed year and established stands of forage seed crops, coverage begins for each crop year on:
(i) November 1 for counties in California, Utah and Nevada; and
(ii) October 1 for counties in Idaho, Montana, Oregon, Washington, Wyoming and all other states.
(2) For spring planted seed-to-seed year stands of forage seed crops, coverage begins:
(i) May 1 for counties in California and Washington; and
(ii) May 15 for counties in Idaho, Montana, Nevada, Oregon, Utah, Wyoming and all other states.
(b) The calendar dates for the end of the insurance period for counties in the following states are as follows unless otherwise provided in the Special Provisions:
(1) California, Nevada and Utah. October 31.
(2) Idaho, Oregon, Montana, Washington, Wyoming and all other states. September 30.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1) Adverse weather conditions;
(2) Fire;
(3) Insects and plant disease, but not damage due to insufficient or improper application of control measures;
(4) Wildlife;
(5) Earthquake;
(6) Volcanic eruption; or
(7) Failure of the irrigation water supply, if caused by a peril specified in sections 9(a)(1) through (6) that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to:
(1) The crop not being timely harvested, unless such delay in harvesting is solely and directly caused by a cause of loss specified in sections 9(a)(1) through (6);
(2) Insufficient supply of pollinators, as determined by us, unless lack of pollinators or pollination is solely and directly caused by a cause of loss specified in sections 9(a)(1) through (7);
(3) Failure of the certification standard or forage seed company contract acceptance caused by failure to follow proper isolation requirements or inadequate weed control, as determined by us, unless such failure is solely and directly due to a cause of loss specified in sections 9(a)(1) through (6); or
(4) Failure of the certification standard or forage seed contract acceptance due to failure to follow all other certification or contract requirements, as determined by us, unless such failure is solely and directly caused by a cause of loss specified in sections 9(a)(1) through (6).
(a) We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1) For any optional unit, we will combine all optional units for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage to your forage seed crop covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage for each type and practice by the production guarantee;
(2) Multiplying each result in section 10(b)(1) by the price election;
(3) Totaling the results in section 10(b)(2);
(4) Multiplying the total production to count for each type and practice by the price election;
(5) Totaling the results of each crop type in section 10(b)(4);
(6) Subtracting the result in section 10(b)(5) from the result in section 10(b)(3); and
(7) Multiplying the result in section 10(b)(6) by your share.
(c) The total forage seed production to count (in pounds) from all insurable acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is put to another use without our consent;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us.
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached and if:
(A) You do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisals made prior to giving consent to put the acreage to another use will be used to determine the amount of production to count);
(B) You elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production or our reappraisal if additional damage occurs and the crop is not harvested; and
(2) All harvested production from the insurable acreage in accordance with section 10 (e).
(d) In addition to the provisions of section 15 of the Basic Provisions, we may determine the amount of production of any unharvested forage seed on the basis of our field appraisals conducted after the normal time of harvest for the area. If the acreage is later harvested, production records must be provided and if the harvested production exceeds the appraised production, the claim will be adjusted.
(e) Production not meeting the minimum quality requirements contained in the forage seed contract or certifying agency’s standards based on tests conducted by a qualified seed testing laboratory due to insurable causes will be reduced as follows:
(1) Divide the actual value by the base price for the insured type; and
(2) Multiply the result (not to exceed 1.0) by the number of pounds of such production.
(1) 75 acres × 600 pounds = 45,000-pound guarantee
25 acres × 300 pounds = 7,500-pound guarantee;
(2) 45,000 pounds × $1.20 per pound price election = $54,000 value guarantee
7,500 pounds × $1.20 per pound price election = $9,000 value guarantee;
(3) $54,000 + $9,000 = $63,000 total value of the guarantee;
(4) 27,000 pounds met the contract quality requirements = 27,000 pounds production to count
27,000 pounds × $1.20 per pound = $32,400 10,000 pounds × ($0.80 per pound/$1.20 per pound) = 6,667 pounds production to count
6,667 pounds × $1.20 per pound = $8,000;
(5) $32,400 + $8,000 = $40,400 total value of production to count;
(6) $63,000 − $40,400 = $22,600 loss; and
(7) $22,600 × 100% share = $22,600 indemnity payment.
§ 457.175 California avocado crop insurance provisions.
The California avocado crop provisions for the 2024 and succeeding crop years are as follows:
FCIC policies:
CDFA. The California Department of Food and Agriculture.
Commercial sale. Any transaction in which avocados have been inspected under the rules of the CDFA and to which a marketing assessment payment applies under the Hass Avocado Promotion, Research, and Information Act of 2000.
Crop year. The period of time that begins on December 1 immediately prior to the time the avocado trees normally bloom and that ends on October 31 of the calendar year following such bloom. Crop year is designated by the calendar year following the year in which the avocado trees normally bloom.
Harvest. Picking of marketable avocado fruit from the trees or from the ground when permitted as described in section 11(c).
Initially apply. Your application for crop insurance under these Crop Provisions for the first time and following each time you have cancelled the insurance or the insurance has terminated by action of the policy.
Interplanted. In lieu of the definition contained in section 1 of the Basic Provisions, acreage in which two or more crops are planted in any form of an alternating or mixed pattern.
Marketable. An avocado fruit that meets the standards published by the CDFA with respect to maturity, defects, size, and weight.
No. 2 avocado. An avocado fruit that is marketable but that is diverted into processing uses due to visual defects resulting from an insured cause of loss.
Pound. A unit of weight equal to sixteen ounces avoirdupois.
Rootstock. The root and stem portion of a tree to which a scion can be grafted.
Scion. Twig or portion of a twig of one plant that is grafted onto a rootstock.
Set out. Transplanting a tree into the orchard or grafting a scion onto rootstock.
Stumping. A practice whereby the lateral branches of an avocado tree are removed. A portion of the bole also may be removed. The resulting stump is approximately 4 feet or greater in height.
Type. A term used to designate different varieties of avocados, as more fully described in the Special Provisions.
(a) Unless limited by the Special Provisions, a basic unit as defined in section 1 of the Basic Provisions may be divided into optional units if, for each optional unit, you meet the following:
(1) All optional units you select for the crop year are identified on the acreage report for that crop year (Units will be determined when the acreage is reported but may be adjusted or combined to reflect the actual unit structure when adjusting a loss. No further unit division may be made after the acreage reporting date for any reason);
(2) You have records that are acceptable to us for at least the most recently completed crop year for all optional units that you will report in the current crop year (You may be required to produce the records for all optional units for the most recently completed crop year);
(3) You have records of marketed or stored production from each optional unit maintained in such a manner that permits us to verify the production from each optional unit, or the production from each optional unit is kept separate until loss adjustment is completed by us.
(b) Each optional unit must meet one or more of the following conditions, unless otherwise specified in the Special Provisions:
(1) Be of a different type; or
(2) Consist of acreage located on non-contiguous land.
(c) Subsections (a) and (c) of section 34 of the Basic Provisions do not apply to these Crop Provisions.
In addition to the requirements of section 3 of the Basic Provisions:
(a) You may select only one coverage level for all the avocados in the county insured under this policy.
(b) You must report, on or before the production reporting date designated in section 3 of the Basic Provisions, by unit:
(1) Any damage, stumping (including the year or years that the stumping was performed), or removal of trees; change in orchard practices; or any other circumstance that may reduce the expected yield per acre to less than the approved yield and the number of affected acres and trees;
(2) The number of trees on insurable and uninsurable acreage;
(3) The age of the trees;
(4) Any acreage excluded under section 6 of these Crop Provisions; and
(5) For acreage interplanted with another crop:
(i) The age of the interplanted crop, and type if applicable;
(ii) The planting pattern; and
(iii) Any other information we request to establish your approved yield per acre.
(c) We will reduce the approved yield whenever we determine any one or more of the factors specified in this section are likely to have a negative impact upon that average yield. If you fail to provide complete and accurate information required by this section, and pursuant to the definition of approved yield, we will reduce that yield as necessary at any time we become aware of any such omission.
(d) In the event the avocado trees are damaged to the extent that we determine the APH history you certified no longer is representative of the potential production of the unit, we will reduce your approved yield to a level consistent with that reduced potential. Such reduction will not occur for a crop year for which insurance already has attached if the damage is due to a cause of loss that is insurable for the avocado fruit.
(e) In lieu of that specific provision in section 3(f) of the Basic Provisions, you are required to report the production for the crop year that ended on the October 31 immediately preceding the cancellation date. For example, you must report your production for the 2008 crop year by the production reporting date for the 2010 crop year. All other provisions of section 3(f) apply.
(f) When you initially apply for insurance:
(1) You must certify your production records for at least the most recently completed crop year;
(2) If you do not certify your production records for any one or more of the three crop years immediately prior to the most recently completed crop year, you will be assigned a percentage of the transitional yield included in the actuarial documents for that crop year. The percentages will be those described in 7 CFR part 400 subpart G. All other provisions of 7 CFR part 400 subpart G apply.
In accordance with section 4 of the Basic Provisions, the contract change date is the August 31 that precedes the cancellation date.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are the November 30 immediately prior to the first day of the crop year.
(a) In accordance with section 8 of the Basic Provisions, the crop insured will be all the avocados in the county grown on insurable acreage, and for which premium rates are provided:
(1) In which you have a share;
(2) That is grown for harvest as avocado fruit for commercial sale;
(3) That is a type identified in the actuarial documents;
(4) That is irrigated; and
(5) That is grown on trees that, if inspected, are considered acceptable to us.
(b) In addition to the provisions of section 8 of the Basic Provisions that identify an uninsurable crop, we do not insure any avocados produced on trees that have not reached the sixth leaf year unless the unit has produced an average of at least 2,000 pounds of avocados per acre in one of the most recent three crop years or as otherwise specified in the Special Provisions.
(c) Avocado trees that have been stumped are not insurable for three calendar years after the year stumping was performed. The calendar year stumping occurred will be considered to be the actual calendar year if performed between January 1 and June 30 of that year. It will be considered to be the following calendar year if performed between July 1 and December 31.
(a) In lieu of that part of section 9 of the Basic Provisions that prohibits insurance attaching to a crop planted with another crop, avocados interplanted with another perennial crop are insurable unless we inspect the acreage and determine it does not meet the requirements of insurability contained in these Crop Provisions.
(b) In addition to the acreage designated as not insurable in section 9 of the Basic Provisions, we will not insure avocados produced on any acreage infected with Phytophthora root rot unless you follow good orchard management practices as recommended by agricultural experts.
(a) In accordance with the provisions of section 11 of the Basic Provisions:
(1) Coverage begins on December 1st of the crop year.
(2) The calendar date for the end of the insurance period is the second October 31st of the crop year.
(b) In addition to the provisions of section 11 of the Basic Provisions:
(1) If you acquire an insurable share in any insurable acreage on or before the acreage reporting date of any crop year, and if we inspect and consider the acreage acceptable, insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2) If you relinquish your insurable interest on any acreage of avocados on or before the acreage reporting date of any crop year, insurance will not be considered to have attached to such acreage for that crop year unless:
(i) A transfer of right to an indemnity or a similar form approved by us is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
No premium will be due or indemnity paid unless a properly executed transfer of right to an indemnity has been filed with us.
(a) In accordance with section 12 of the Basic Provisions, insurance is provided against unavoidable loss of production due to the following causes of loss occurring within the insurance period:
(1) Adverse weather conditions;
(2) Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the orchard;
(3) Insects and disease, but not damage due to insufficient or improper application of control measures;
(4) Wildlife;
(5) Earthquake;
(6) Volcanic eruption; or
(7) Failure of the irrigation water supply due to an insured cause of loss specified in sections 9(a)(1) through (6).
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to:
(1) Theft;
(2) Phytophthora root rot, if you do not maintain cultural practices to minimize the potential for damage due to this pathogen; or
(3) Inability to market the avocados for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market any avocado fruit due to quarantine, boycott, or refusal of any person to accept such fruit.
In addition to the requirements of section 14 of the Basic Provisions:
(a) If any portion of your crop will be direct marketed, you must notify us at least 15 calendar days before any production will be harvested. We will conduct an inspection and appraisal, if needed, that will be used to determine your production to count for such production. If damage occurs after this inspection, we will conduct one or more additional inspections as needed. These inspections, and any acceptable records provided by you, will be used to determine your production to count. Failure to give timely notice as required will result in production to count determined as described in section 11(c) if we are not able to determine the amount of such production;
(b) If you intend to claim an indemnity on any unit, you must notify us immediately so we may inspect the unit. You must not sell or otherwise dispose of any damaged production until we have given you written consent to do so, or 15 days, whichever is earlier. If you fail to meet the requirements of this subsection all such production will be considered undamaged and included as production to count;
(c) We will not perform any appraisals of potential production earlier than the July that follows the bloom for the crop year; and
(d) You must notify us immediately if you intend to stump 10 percent or more of the trees on a unit after insurance has attached for the crop year.
(a) We will determine your loss separately for each unit you defined on your acreage report or that we find to exist in accordance with section 2 of these Crop Provisions. If you do not or cannot provide acceptable records of production for the crop year for:
(1) Any optional unit, we will combine all optional units for which such records were not provided; or
(2) Any basic unit, we will allocate commingled production to each basic unit in proportion to our liability on the harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by the production guarantee;
(2) Subtracting from the result of section 11(b)(1) the total production to count (see section 11(c));
(3) Multiplying the result in section 11(b)(2) by the price election, by the price election factor, and by your share.
(c) The total production to count from all insurable acreage on the unit will include the value of all appraised and harvested production, as follows:
(1) Appraised production to be counted will include:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) That is sold or otherwise disposed by direct marketing if you failed to provide the notice required by section 10 and we were not able to determine the amount of such production;
(C) That is damaged solely by uninsured causes; or
(D) For which you fail to provide production records that are acceptable to us;
(ii) Potential production lost due to uninsured causes;
(iii) Unharvested marketable production (the quantity of such production may be reduced as described in section 11(d));
(iv) Potential production on insured acreage you intend to put to another use or abandon, if you agree to our appraisal of such production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us. The production to count for such acreage will be based on the greater of the harvested production or our appraisal in accordance with Section 15(b) of the Basic Provisions from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the production to count; or
(B) If you elect to continue to care for the crop, the production to count for the acreage will be based on the greater of harvested production or our reappraisal in accordance with section 15(b) of the Basic Provisions if additional damage occurs and the crop is not harvested; and
(2) All marketable harvested production (the quantity of such production may be reduced as described in section 11(d)). Any production that is not marketable due to an insured cause of loss will not be included in the production to count.
(d) The quantity of appraised and harvested marketable production may be reduced if the production is considered to be a No. 2 avocado and the price of such marketable production is less than 75 percent of the maximum price election. The quantity of such production will be multiplied by an adjustment factor equal to the lesser of 1.00 or the price of the damaged avocados divided by the maximum price election.
Sections 16 and 17 of the Basic Provisions do not apply to these Crop Provisions.
You certify production records that support the yields per acre shown below:
| Year | Yield/acre |
|---|---|
| 1 | 4,559 |
| 2 | 2,978 |
| 3 | 10,112 |
| 4 | 2,014 |
| 5 | 2,420 |
AVERAGE (APPROVED) Yield = 4,417 lbs.
Assume you selected the 65 percent coverage level. The unit contains 10 acres. The production guarantee per acre is:
The production guarantee for the unit is:
Assume further that the price election is $0.90 per lb. The liability (amount of insurance) for the unit is equal to:
Assume the unit produced 15,000 lbs. Your share is 100 percent.
The indemnity is calculated as follows:
§ 457.176 Cultivated clam crop insurance provisions.
The cultivated clam crop provisions for the 2019 and succeeding crop years are as follows:
FCIC policies:
Amount of insurance. For each basic unit, your inventory value multiplied by the coverage level percentage you elect, and multiplied by your share. However, for catastrophic risk protection policies, amount of insurance is your inventory value multiplied by the coverage level percentage you elect (for CAT coverage the level is limited to 50 percent), multiplied by your share, and multiplied by 55 percent. Your accumulated paid indemnities during the crop year for each basic or optional unit may not exceed your amount of insurance.
Basic unit value before loss. The stage value of all undamaged insurable clams, in the basic unit or, if elected, all optional units combined, immediately prior to the occurrence of any loss as determined by our appraisal. This allows the amount of insurance under the policy to be prorated among the individual units based on the actual value of the clams in the unit at the time of loss. It is also the basis for determining whether or not an indemnity is due. This value is used to ensure that you have not under-reported your clam inventory value.
Clam. A cultivated Mercenaria mercenaria (quahog).
Crop year. The twelve-month period beginning December 1 and extending through November 30 of the next calendar year, designated by the calendar year in which insurance ends.
Crop year deductible. The deductible percentage multiplied by the sum of the inventory values within each basic unit. The crop year deductible will be increased for any increases in the inventory value on the inventory value report. The crop year deductible will be reduced by any previously incurred deductible if you timely report each loss to us.
Deductible percentage. An amount equal to 100 percent minus the percent of coverage you select. The percentage is 50 percent for catastrophic risk protection coverage.
Disease. Any pathogen or group of pathogens, parasitic infestation or plague verified by an aquaculture pathologist and shown to be a primary cause to the death of the insured clams.
Freeze. The formation of ice in the cells of the animal caused by low air temperatures.
Global Positioning System (GPS). A space based radio position, navigation, and time transfer system involving satellites and computers to determine the latitude and longitude of a receiver on Earth by computing the time difference for signals from different satellites to reach the receiver and referenced in the Special Provisions.
Growing location. A lease parcel, permit or licensed area, whose boundaries are readily discernable above the water, and identified on a map that shows enough detail to distinguish seeded areas within the site.
Growout bag. A mesh bag used throughout the growing season to contain clams when placed in the appropriate growing medium and as further defined by the Special Provisions.
Harvest. Removal of marketable clams from the unit. Clams that are removed from the growing location but not of sufficient size to be marketable are not considered harvested if returned to the growing location.
Ice floe. Floating ice formed in sheets on the sea surface.
Inventory value. The total of the stage values from the inventory value report.
Inventory value report. Your report that declares the stage values of insurable clams in accordance with section 6. See the Cultivated Clam Insurance Standards Handbook, Exhibit 5 for the inventory value report completion instructions and form.
Land. The land under a body of water suitable for planting clams and the column of water above the land if designated and controlled by state law.
Lease. A contract that grants use of land in or assigned to a county for a specified term and for a specified payment and provides the lessee with the exclusive use of the land to plant clams.
Lease parcel. A legally identifiable tract or plot of land covered by a lease, permit, or license.
License. Official or legal permission that grants use of land in or assigned to a county for a specified term and provides the licensee with the exclusive use of the land to plant clams.
Non-contiguous. In lieu of the definition in the Basic Provisions, separately-named, high-density aquaculture lease sites or shellfish sites are considered non-contiguous, unless limited by the Special Provisions. Individual land parcels within such sites are not considered non-contiguous.
Occurrence deductible.
(a) This deductible allows a smaller deductible than the crop year deductible to be used when:
(1) Inventory values are less than the reported basic unit value; or
(2) You have elected optional units, if applicable.
(b) The occurrence deductible is the lesser of:
(1) The deductible percentage multiplied by the unit value before loss multiplied by the under-report factor; or
(2) The crop year deductible.
Permit. A document giving official or legal permission to use land in or assigned to a county for a specified term and provides the permittee with the exclusive use of the land to plant clams.
Planting. The placing of seed clams into the appropriate growing medium for the practice specified.
Pollution. The presence in the water of a substance that directly causes death of the clams. The substance shall not be parasitical, bacterial, fungal or viral, or any substance used by you for medicinal purposes. Pollution will also include any increase or decrease in the content of any normal soluble or insoluble constituent of water including mud and silt, feed residues, solid or liquid fish wastes, dissolved gases and any other substance normally present in the water of the lease parcel.
Practical to replant. In lieu of the definition of “Practical to replant” contained in section 1 of the Basic Provisions, unless limited by the Special Provisions, practical to replant is defined as our determination, after loss or damage to the insured crop, based on factors including, but not limited to the causes of loss listed in section 10 of these provisions, that replanting the insured crop will allow the crop to develop normally during the remainder of the crop year. Unavailability of seed clams will not be considered a valid reason for failure to replant.
Practice. The cultural methods of producing clams such as trays, mesh bags, round pens, lantern nets or bottom planting.
Replant. Unless limited by the Special Provisions, performing the cultural practices necessary to prepare for replacement of insurable clams that were destroyed by an insurable cause of loss and then placing living insurable clams into mesh bags or pens, or seeding them into prepared growout beds, bottom culture, bottom trays, or floating trays on insurable acreage.
Salinity. The dissolved solids (typically salts such as chloride, sodium, and potassium) in ocean water expressed as parts per thousand.
Seed clam.
(a) For clams placed in a field nursery or a nursery bag – a clam that is a minimum of 5 millimeters, measured at the longest shell distance that is parallel to the hinge.
(b) For all others – a clam which is a minimum of 10 millimeters, measured at the longest shell distance that is parallel to the hinge.
Separately named high-density aquaculture lease site. The submerged subdivided land under a body of water suitable for the cultivation of clams and identified and named separately by the Division of Marine Resources or similar regulatory agency.
Shellfish harvest ban. A State or Federal order that prohibits harvesting clams for human food in areas where monitoring program data indicates that fecal material, pathogenic microorganisms, poisonous or deleterious substances, marine toxins, or radio nuclides have reached excessive concentrations.
Stage. Clams that have attained the size or age specified for stage 1, 2, 3, or 4 as defined in the Special Provisions.
Stage value. The dollar value of the inventory of all insurable clams at each stage based on the survival factors and the prices shown in the actuarial documents for such stages, in each unit on your inventory value report, including any revision that increases the value of your insurable inventory.
Storm surge. A significant increase or decrease in water depth relative to normal tides that is caused by a strong, continuous and prolonged strong flow of onshore or offshore winds.
Survival factor. A factor shown on the actuarial documents that represents the expected percentage of clams that will normally survive. If you provide production records for three consecutive years, your records will be used in lieu of the factor contained in the actuarial document to determine the survival factor. The survival factor is applied at the time of inventory and is not applied a second time to the same inventory when a loss occurs. Clams that are seeded subsequent to the annual inventory value report must be adjusted by the survival factor.
Tidal wave. A large water wave, wave train, or a series of waves, generated in a body of water by an impulsive disturbance that vertically displaces the water column or a destructive type of wave motion in seas and oceans, associated with either strong winds or underwater earthquakes.
Under-report factor. The factor that adjusts your indemnity for under-reporting of inventory values. The factor is always used in determining any indemnities. The under-report factor is the lesser of: (a) 1.000; or (b) the sum of all stage values reported on all the inventory value reports, minus the total of all previous losses, as adjusted by any previous under-reporting factors, divided by the basic unit value before loss.
Unit value after loss. The value of the remaining insurable clams in each basic or optional unit based on the percentage of the reference maximum dollar amount contained in the actuarial documents, immediately following the occurrence of a loss as determined by our appraisal, plus any reduction in value due to uninsured causes. This is used to determine the loss of value for each individual unit so that losses can be paid on an individual unit basis, optional or basic, as applicable.
Unit value before loss. The stage value of undamaged insurable clams in the basic or optional unit, as applicable, immediately prior to the loss occurrence. The determined value will include the number of seeded and harvested clams and stages that existed on the date of the inventory value report, adjusted for changes in accordance with subparagraph 22A(2) of the Insurance Standards Handbook, including but not limited to; the reference maximum dollar amount contained in the actuarial documents; and the applicable survival factors. This allows the amount of insurance under the policy to be divided among the individual units in accordance with the value of the clams in the unit at the time of loss for determining whether you are entitled to an indemnity for insured losses in the unit, optional or basic, as applicable. Clams that are seeded subsequent to the annual inventory value report being submitted must be adjusted by the survival factor before they are added to the beginning inventory during the process of establishing the “Unit value before loss.”
(a) In addition to the definition of basic unit contained in section 1 of the Basic
Provisions, a basic unit may be divided into optional units in accordance with section 2(b). Note that even if you elect optional unit coverage, amount of insurance, crop year deductible, under-report factor, premium, and the total amount of indemnity payable under this policy will be controlled by the basic unit value before loss.
(b) If you elect the additional level of coverage, for an additional premium, inventory that would otherwise be a basic unit may, unless limited by the Special Provisions, be divided into optional units by non-contiguous lease parcels. Additional optional units may also be authorized in the Special Provisions. If you elect optional units, you must provide separate inventory reports for each unit and keep all records of seeding, harvest, and uninsured losses separately by unit.
(c) Failure to keep or report separate records will result in all optional unit inventories under a basic unit being combined in a basic unit at loss time.
(d) If you elect optional units, your amount of insurance will be divided among optional units in relation to unit value before loss of clams in each optional unit. If, at the time of loss, the aggregate value of the clams in your optional units exceeds your basic unit inventory value, you will be subject to the under-report factor provisions.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may only select one coverage level percentage for all clams, regardless of their stage, insured under this policy.
(b) Your amount of insurance will be reduced by the amount of any indemnity paid under this policy.
(c) For an additional premium, you may increase your amount of insurance in accordance with section 6(d).
(d) The production reporting requirements contained in section 3 of the Basic Provisions are not applicable.
(e) For seeded clams, the amount of insurance is the product of the reference maximum dollar amount of insurance and the fraction of the maximum value associated with the applicable stage multiplied by the coverage level selected multiplied by your share.
In accordance with section 4 of the Basic Provisions, the contract change date is August 31 of each year, or as specified in the actuarial documents.
In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are November 30, or as specified in the actuarial documents.
In lieu of section 6 of the Basic Provisions:
(a) For insurance to attach for the crop year, you must submit an inventory value report to us with your application and for each subsequent crop year, not later than November 30 preceding the crop year, or by the date specified in the Special Provisions.
(b) The inventory value report must be submitted yearly and include, for each basic or optional unit all growing locations, the stages of the clams and the stage values, and your share by growing location.
(1) The inventory value must also reflect the stages as shown in the Special Provisions.
(2) At our option and at any time, you may be required to provide documentation in support of any of your reports, including, but not limited to, a detailed listing of growing locations, unit values, the numbers and the sizes of clams seeded or placed for grow-out; your share, sales of clams and purchases of seed clams for the 3 previous crop years, and of your ability to properly obtain and maintain clams.
(3) For catastrophic level policies only, you must report your clam sales for the previous crop year on the clam inventory value report. You may be required to provide documentation to support such sales.
(c) Your inventory value report, including any revised report, will be used to determine your premium and amount of insurance.
(d) If allowed for in the Special Provisions you may revise your inventory value report to increase the reported inventory value. We may inspect the inventory. Your revised inventory value report, if allowed by the Special Provisions, will be considered accepted by us and coverage will begin on any proposed increase in inventory value at the later of December 1, the date shown in the Special Provisions, or 30 days after your written request is received by us, unless we reject the proposed increase in your inventory value in writing. We will reject any requested increase if a loss occurs before the later of December 1, the date shown in the Special Provisions, or within 30 days of the date the request is made.
(e) Failure to report the full value of your stage value will result in the reduction of any claim in accordance with section 14(d).
(f) For catastrophic insurance coverage only: Your inventory value report for all clams cannot exceed the lesser of the value from section 6(b) or the percent shown on the actuarial documents of your previous year’s sales of clams unless you provide acceptable records to prove your actual inventory value.
(g) Your inventory value report must reflect your insurable clam inventory according to the prices contained in the actuarial documents. In no instance will we be liable for values greater than those contained in the actuarial documents.
(h) You must report all clams on the unit including any clams owned or subleased by other individuals or entities.
(i) No application or inventory value reports, except revisions, will be accepted after November 30, unless otherwise provided in the Special Provisions.
(a) In lieu of section 7(c) of the Basic Provisions, we will determine your premium by multiplying the amount of insurance by the appropriate premium rate and by the premium adjustment factors listed on the actuarial documents.
(b) Additional premium from an increase in the inventory value report is due and payable when we accept the revised inventory value report.
(c) In addition to the provisions in section 7 of the Basic Provisions, the premium will be adjusted for partial crop years for the year of seeding and for clam leases you acquire. Premium will be charged for the entire month, as shown in the actuarial documents, for any month during which any amount of coverage is provided.
In lieu of the provisions of section 8 and section 9 of the Basic Provisions, the insured crop is all the clams in the county that:
(a) Meet all the requirements for insurability and for which prices are provided in the actuarial documents;
(b) Are acceptable to us;
(c) Are grown by a person, who in at least three of the five previous crop years:
(1) Grew clams for commercial sale; and
(2) Participated in the management of a clam farming operation by at least exercising decision-making authority over all operational aspects of the farm.
(d) Are grown in a county for which a premium rate is provided in the actuarial documents;
(e) Are in a growing location acceptable to us and for which you provided GPS coordinates with your clam inventory value report in accordance with the Special Provisions; and
(f) Use a practice that fixes the insurable clams to the land within the growing location.
(a) In accordance with section 11 of the Basic Provisions, coverage begins the later of:
(1) The date the pre-acceptance inspection, if applicable, is complete unless we notify you that your inventory is not insurable; or
(2) If your inventory is insurable:
(i) On December 1 for new applications, when the application and the inventory value report are submitted by October 30;
(ii) On the 31st day following the date of submission for new applications, when the application and the inventory value report are submitted between November 1 and 30;
(iii) On December 1 for policies continued from the prior year if the inventory value report is submitted by October 30;
(iv) On the 31st day following the date of submission of the inventory value report for policies continued from the prior year when the inventory value report is submitted between November 1 and 30; and
(v) However, you acquire a financial interest in any insurable clams after coverage begins, but after December 1 of the crop year, and our inspection determines that the clams are acceptable, insurance will be considered to have attached to such clams 30 days after a revised inventory report is accepted by us indicating the stage value of the acquired clams; or
(vi) On the date contained in the Special Provisions.
(b) Insurance ends at the earliest of:
(1) The date of final adjustment of a loss when the total indemnities due equal the amount of insurance;
(2) November 30; or
(3) A date specified in the Special Provisions. (c) Insurance ceases immediately on any clams removed from the unit.
(a) In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided for the death of clams caused only by the following causes of loss that occur within the insurance period unless otherwise limited by the Special Provisions:
(1) Oxygen depletion due to vegetation, microbial activity, harmful algae bloom, or high water temperature unless otherwise limited by the Special Provisions;
(2) Disease, if medication does not exist for control of the disease;
(3) Freeze;
(4) Hurricane;
(5) Decrease in salinity associated with a weather event verified by National Oceanic & Atmospheric Administration (NOAA) or United States Geologic Survey (USGS) or as otherwise defined in the Special Provisions;
(6) Tidal wave;
(7) Storm surge that is associated with a local weather event and verified by NOAA or USGS; or
(8) Ice floe.
(b) In addition to the causes of loss excluded in section 12 of the Basic Provisions, we do not insure against any loss caused by:
(1) Your inability to market clams as a direct result of quarantine, shellfish harvest ban, boycott, or refusal of a buyer to accept production;
(2) Collapse or failure of buildings or structures;
(3) Loss of market value;
(4) Vandalism;
(5) Theft;
(6) Pollution;
(7) Predation (unless allowed by the Special Provisions);
(8) Dredging;
(9) Any cause of loss that occurred prior to or after the insurance period;
(10) Any unexplained shortages or disappearance of inventory; or
(11) Failure of the clam to grow to a marketable size.
Unless otherwise stated in the Special Provisions:
(a) In accordance with the provisions contained in section 13 of the Basic Provisions, a replanting payment is allowed for insurable clams if death of the clams was due to an insurable cause of loss.
(b) The maximum amount of the replanting payment will be the lesser of your actual cost of replanting or the result obtained by multiplying the replanting payment amount contained in the Special Provisions by your insured share.
(c) Notwithstanding the provisions of section 13 of the Basic Provisions, only one replanting payment will be made per lease parcel planted within the crop year.
(d) You may not collect a replant payment and an indemnity for the same loss.
In addition to your duties contained in section 14 of the Basic Provisions,
(a) You must obtain our written consent prior to changing or discontinuing your normal practices with respect to care and maintenance of the insured clams. Failure to obtain our written consent will result in the denial of your claim.
(b) If you are claiming disease as the cause of loss, you must prove at your own expense that the death of the clams was due to disease by isolating a sample of the clams and identifying the disease following histological or pathological examination conducted by a veterinarian who is a certified fish pathologist or a person approved by us.
In addition to the requirements of section 21 of the Basic Provisions, you must permit us to inspect the insurable clams at any time and take samples of damaged and undamaged clams for inspection, testing, and analysis, and examine and make copies of your records.
We will determine indemnities for any unit as follows:
(a) Determine the under-report factor for the basic unit;
(b) Determine the occurrence deductible;
(c) Subtract unit value after loss from unit value before loss;
(d) Multiply the result of 14(c) by the under-report factor;
(e) Subtract the occurrence deductible from the result in section 14(d); and
(f) If the result of section 14(e) is greater than zero, and subject to the limit of section 14(g);
(1) For other than catastrophic risk protection coverage, your indemnity equals the result of section 14(e), multiplied by your share.
(2) For catastrophic risk protection coverage, your indemnity equals the result of section 14(e) multiplied by 55 percent, multiplied by your share.
(g) The total of all indemnities for the crop year will not exceed the amount of insurance.
Provisions of section 16 of the Basic Provisions do not apply.
Provisions of section 17 of the Basic Provisions do not apply.
Assume you have a 100 percent share, the inventory value reported by you is $100,000, and your coverage level is 75 percent. Your amount of insurance is $75,000 ($100,000 × .75). At the time of loss, unit value before loss is $95,000, unit value after loss is $30,000 and basic unit value before loss is $100,000. The deductible percentage is 25 percent (100−75), the crop year deductible is $25,000 (.25 × $100,000). Your indemnity would be calculated as follows:
Step (1) Determine the under-report factor; $100,000 ÷ $95,000 = 1.000;
Step (2) Determine the occurrence deductible; .25 × $95,000 × 1.000 = $23,750;
Step (3) Calculate the difference between unit value before loss and unit value after loss; $95,000−$30,000 = $65,000;
Step (4) Result of step 3 multiplied by the underreport factor (step 1); $65,000 × 1.000 = $65,000;
Step (5) Result of step 4 minus the occurrence deductible; $65,000−$23,750 = $41,250;
Step (6) Result of step 5 multiplied by your share; $41,250 × 1.000 = $41,250 indemnity payment.
Assume you have a 100 percent share, the inventory value reported by you is $100,000, and your coverage level is 75 percent. You have two optional units, unit 1 and unit 2. Your amount of insurance is $75,000 ($100,000 × .75). You have a loss on unit 1 and no loss on unit 2. At the time of loss, unit value before loss on unit 1 is $60,000, unit value after loss on unit 1 is $18,000 and basic unit value before loss is $125,000. The deductible percentage is 25 percent (100−75), the crop year deductible is $25,000 (.25 × $100,000). Your indemnity would be calculated as follows:
Step (1) Determine the under-report factor; $100,000 ÷ $125,000 = .80;
Step (2) Determine the occurrence deductible; .25 × $60,000 × .80 = $12,000;
Step (3) Calculate the difference between unit value before loss and unit value after loss; $60,000−$18,000 = $42,000;
Step (4) Result of step 3 multiplied by the underreport factor (step 1); $42,000 × .80 = $33,600;
Step (5) Result of step 4 minus the occurrence deductible; $33,600−$12,000 = $21,600;
Step (6) Result of step 5 multiplied by your share; $21,600 × 1.000 = $21,600 indemnity payment.
Your crop year deductible is reduced to $13,000 ($25,000−$12,000). Your amount of insurance is reduced to $53,400 ($75,000−$21,600). You do not restock unit 1 after the first loss. Values on unit 2 do not change from those measured at the time of the loss on unit 1. Assume you have a loss later in the crop year on unit 2. Unit value before loss on unit 2 is $65,000, unit value after loss on unit 2 is $0.00 and basic unit value before loss on the basic unit is $83,000. Your loss would be determined as follows:
Step (1) Determine the remaining amount of insurance; $100,000−$33,600 = $66,400;
Step (2) Determine the under-report factor; $66,400 ÷ $83,000 = .800;
Step (3) Determine the occurrence deductible; $25,000−$12,000 = $13,000;
Step (4) Calculate the difference between unit value before loss and unit value after loss; $65,000−$0.00 = $65,000;
Step (5) Result of step 4 multiplied by the underreport factor (step 2); $65,000 × .800 = $52,000;
Step (6) Result of step 5 minus the occurrence deductible; $52,000−$13,000 = $39,000;
Step (7) Result of step 6 multiplied by your share; $39,000 × 1.000 = $39,000 indemnity payment.
PARTS 458-459 [RESERVED]
PART 460 – ADDITIONAL DISASTER PAYMENTS
Subpart A – Prevented Planting Supplemental Disaster Payments
§ 460.1 Applicability.
This subpart specifies the terms and conditions of prevented planting supplemental disaster payments. Prevented planting supplemental disaster payments provide additional compensation to producers prevented from planting crops insured under crop insurance policy reinsured by the Federal Crop Insurance Corporation (FCIC) due to disaster related conditions. Prevented planting supplemental disaster payments are applicable to 2019 crop year crops prevented from planting in 2019, as determined by the Risk Management Agency (RMA).
§ 460.2 Definitions.
Approved Insurance Provider (AIP) means a legal entity which has entered into a reinsurance agreement with FCIC for the applicable reinsurance year and is authorized to sell and service policies or plans of insurance under the Federal Crop Insurance Act.
Assignment of Indemnity means a transfer of crop insurance policy rights whereby a policyholder assigns rights to an indemnity payment for the crop year to creditors or other persons to whom they have a financial debt or other pecuniary obligation.
Crop insurance policy means an insurance policy reinsured by FCIC under the provisions of the Federal Crop Insurance Act, as amended. It does not include private plans of insurance.
Crop year means the period within which the insured crop is normally grown and is designated by the calendar year in which the insured crop is normally harvested.
Federal Crop Insurance Act means the legal authority codified in 7 U.S.C. 1501-1524.
Final planting date means the latest date, established by RMA for each insurable crop, by which the crop must initially be planted in order to be insured for the full production guarantee or amount of insurance per acre.
FCIC means the Federal Crop Insurance Corporation, a wholly owned Government Corporation of USDA that administers the Federal crop insurance program.
FSA means the Farm Service Agency.
Insured crop means a crop for which the participant has purchased a crop insurance policy from an AIP.
NAP means the Noninsured Crop Disaster Assistance Program under section 196 of the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. 7333) and part 1437 of this title and administered by FSA.
Person has the same meaning as defined in § 457.8(1) of this title.
Prevent plant base factor means the value announced by the Secretary used to calculate the payment for crops covered under a plan of insurance that is not a revenue protection plan of insurance, or is a revenue protection plan of insurance with the harvest price exclusion elected.
Prevent plant revenue factor means value announced by the Secretary used to calculate the payment for crops covered under a plan of insurance that provides revenue protection unless the harvest price exclusion is elected for that crop.
Prevented planting means the inability to plant an insured crop with proper equipment during the planting period as a result of an insured cause of loss, as determined by the AIP.
Prevented planting payment means a payment made under a crop insurance policy to compensate the policyholder when they are prevented from planting an insured crop.
Qualifying prevented planting payment means a prevented planting payment made under a crop insurance policy that qualifies for a prevented planting supplemental disaster payment, as specified in this subpart.
Revenue protection has the same meaning as defined in § 457.8(1) of this title.
Second crop has the same meaning as defined in § 457.8(1) of this title.
§ 460.3 Eligibility and qualifying causes of loss.
(a) To be eligible for a payment under this subpart, the participant must be a person that is eligible to receive Federal benefits and has purchased a crop insurance policy for the insured crop from an AIP.
(1) Participants will be eligible to receive a payment in this subpart only if they were prevented from planting an insured crop due to a qualifying cause of loss, as further specified in this subpart.
(2) A person is not eligible to receive benefits in this subpart if at any time that person is determined to be ineligible for crop insurance.
(b) Insured crops that are eligible for a payment under this subpart are those crops for which the final planting date for the 2019 crop year crop insurance policy is in the 2019 calendar year, as specified by the Administrator.
(1) For insured crops with more than one final planting date in the county, only those types or practices with a final planting date in the 2019 calendar year are eligible for payment under this subpart.
(2) Participants who are in violation of Highly Erodible Land or Wetlands Conservation (16 U.S.C. 3811-12, 3821) for Federal crop insurance are not eligible for payment under this subpart.
(c) A prevented planting payment will only be considered a qualifying prevented planting payment if the participant is prevented from planting the insured crop due to one of the following causes of loss:
(1) Excess precipitation;
(2) Flood;
(3) Cold wet weather;
(4) Storm surge;
(5) Tornado;
(6) Volcanic activity; and
(7) Tropical depression, hurricane, or cyclone.
(d) A prevented planting payment received for failure to plant due to any cause not included in paragraph (c) of this section is not considered a qualifying prevented planting payment for the purpose of this subpart.
§ 460.4 Calculating prevented planting supplemental disaster payments.
(a) For insured crops covered under a crop insurance policy with a revenue protection plan of insurance that does not have the harvest price exclusion elected, the payment under this subpart for each insured crop will be calculated by summing the qualifying prevented planting payments for that insured crop and multiplying the total by the prevent plant revenue factor.
(b) For all other insured crops, the payment under this subpart for each insured crop will be calculated by summing the qualifying prevented planting payments for that insured crop and multiplying the total by the prevent plant base factor.
(c) If a qualifying prevented planting payment is reduced for any reason, such as the participant planting a second crop, the payment under this subpart will be based on the amount of the qualifying prevented planting payment after any such reduction.
§ 460.5 Timing and issuance of payments and payment limitations.
(a) The payment under this subpart will be issued, for each crop, to the same person or persons that received the qualifying prevented planting payment for that crop:
(1) If the insured has an assignment of indemnity in effect on the insured crop, the payment under this subpart will be made jointly in the name of the insured and all applicable assignees.
(2) In cases where there has been a death, disappearance, judicially declared incompetence, or dissolution of any insured person any payment under this subpart will be paid to the person or persons determined to be entitled to the qualifying prevented planting payment.
(b) Any payments under this subpart will be made by USDA in a manner and at a time determined by the Administrator.
(c) The total amount of payments received for prevented planting supplemental disaster payments under this subpart, applicable crop insurance policy indemnities, NAP payments, and any other applicable disaster relief payment will not exceed 90 percent of the loss as determined by the Secretary.
(d) The payment limitations stated in 7 CFR 760.1507 are not applicable to prevented planting supplemental disaster payments.
§ 460.6 Adjusted prevented planting supplemental disaster payments and repayment.
(a) In the event that any payment under this subpart is determined to be incorrect due to a change in a qualifying prevented planting payment, erroneous information, or a miscalculation, the payment will be recalculated until October 9, 2020, unless otherwise specified by the Administrator. After that date, the payment under this subpart will be final except in cases of fraud, scheme, or device, or failure to purchase crop insurance as specified in § 460.8.
(b) In the event that the qualifying prevented planting payment is adjusted after payment under this subpart has been issued and that adjustment results in:
(1) A higher qualifying prevented planting payment, the amount of payment will be increased to the amount determined to be correct; or
(2) A lower qualifying prevented planting payment, the amount of payment will be decreased to the amount determined to be correct and the participant will be required to repay, with interest if applicable, any excess payment already received.
(c) All persons with a financial interest in the person receiving payments under this subpart are jointly and severally liable for any refund, including related charges, which is determined to be due.
(d) Interest will accrue at the annual rate of 1.25 percent simple interest per calendar month. Interest will start to accrue on the first day of the month following the notification of the amount to be refunded, provided that a minimum of 30 days has passed from the date the notification was issued.
§ 460.7 Requirement to purchase crop insurance.
(a) For the first 2 consecutive crop years after receiving a payment under this subpart:
(1) A participant who receives a payment under this subpart for prevented planting for a crop in a county must obtain crop insurance for all acres planted to that crop in that county; or
(2) If crop insurance is no longer available for the crop in that county, the participant must obtain NAP coverage if available for the applicable crop year. A participant will only be considered to have obtained NAP coverage for the purposes of this section if the participant paid the NAP service fee and any premium by the applicable deadline and complied with all program requirements.
(b) If a participant fails to obtain crop insurance or NAP coverage as required in paragraph (a) of this section, the participant must reimburse the full amount of the payment under this subpart received for the applicable crop, plus interest calculated from the date of disbursement.
Subpart B – Pandemic Cover Crop Program
§ 460.8 Applicability.
(a) This subpart specifies the terms and conditions of the Pandemic Cover Crop Program (PCCP).
(b) For the 2022 crop year, PCCP premium support is available to eligible producers for eligible insured acres on a crop insurance policy for a first insured crop on which the producer planted a qualifying cover crop after June 15, 2021, of the 2021 crop year, or during the 2022 crop year.
(1) For the 2022 crop year, in states administering a cover crop program providing premium subsidy under an active Memorandum of Understanding (MOU) with RMA, as authorized by section 508(c)(8) of the Federal Crop Insurance Act, insured acres qualifying for a state premium subsidy amount are eligible for a matching amount under PCCP.
(2) For the 2022 crop year, additional PCCP premium support is available to eligible producers for eligible Whole Farm Revenue Protection (WFRP) acres on which the producer planted a qualifying cover crop after June 15, 2021, of the 2021 crop year, or during the 2022 crop year.
§ 460.9 Definitions.
Approved Insurance Provider (AIP) means a legal entity that has entered into a reinsurance agreement with the Federal Crop Insurance Corporation (FCIC) for the applicable reinsurance year and is authorized to sell and service policies or plans of insurance under the Federal Crop Insurance Act.
Crop insurance policy means an insurance policy reinsured by FCIC under the provisions of the Federal Crop Insurance Act, as amended. It does not include private plans of insurance.
Crop year means the period within which the insured crop is normally grown and is designated by the calendar year in which the insured crop is normally harvested.
Eligible insured acres means insured acres on which the producer planted a qualifying cover crop after June 15, 2021, during the 2021 crop year, or during the 2022 crop year, as reported on the Farm Service Agency’s (FSA) common land unit(s) (CLU) to FSA via a completed and signed Form 578-Report of Acreage on or before March 15, 2022, or May 31, 2022, for 2022 crop year qualifying cover crops planted after March 15, 2022, which may be prior to FSA’s acreage reporting date, and reported the same CLU(s) on their crop insurance acreage report by the applicable Federal crop insurance acreage reporting date for a 2022 crop year crop insurance policy for a first insured crop.
Eligible WFRP acres means acres on which a person with a 2022 crop year WFRP policy planted a qualifying cover crop after June 15, 2021, during the 2021 crop year, or during the 2022 crop year, as reported on the CLU(s) to FSA via a completed and signed Form 578-Report of Acreage on or before March 15, 2022, or May 31, 2022, for 2022 crop year qualifying cover crops planted after March 15, 2022, which may be prior to FSA’s acreage reporting date.
Eligible producer means a producer meeting all of the eligibility requirements for PCCP.
FCIC means the Federal Crop Insurance Corporation, a wholly owned Government Corporation of USDA that administers the Federal crop insurance program.
First insured crop means, with respect to a single crop year and any specific crop acreage, the first instance that an agricultural commodity is planted for harvest or prevented from being planted and is insured under the authority of the Federal Crop Insurance Act.
FSA means the Farm Service Agency, USDA.
FSA Common Land Unit (CLU) means the smallest unit of land that has a permanent, contiguous boundary, common land cover and land management, common owner, and common producer association.
Insured acres means the participant’s share of insurable acreage that is insured in accordance with a crop insurance policy purchased from an AIP.
Insured crop means a crop for which the participant has purchased a crop insurance policy from an AIP.
MOU means Memorandum of Understanding.
PCCP means Pandemic Cover Crop Program.
Person means a person as defined in 7 CFR 457.8(1).
Qualifying cover crop means any of the four types of cover crops:
(1) Cereals and other grasses;
(2) Legumes;
(3) Brassicas; and
(4) Other non-legume broadleaves, and mixtures of two or more cover crop species planted at the same time. An insured crop is not considered a qualifying cover crop.
RMA means the Risk Management Agency, USDA.
USDA means United States Department of Agriculture.
WFRP means Whole Farm Revenue Protection.
§ 460.10 Eligibility.
(a) For the 2022 crop year, to be eligible for premium support under PCCP, the participant must be a person who is eligible to receive Federal benefits and who has purchased a crop insurance policy for a first insured crop from an AIP for insured acres on which the participant planted a qualifying cover crop after June 15, 2021, during the 2021 crop year, or during the 2022 crop year.
(1) Cover crops must be specifically reported to FSA via the Form-578 with the corresponding crop code.
(2) Potential participants that are uncertain of whether their cover crop was reported to the FSA are encouraged to contact their local FSA county office (http://farmers.gov/service-locator).
(3) Only acreage reports that are filed or amended prior to March 15, 2022, (or May 31, 2022, for 2022 crop year qualifying cover crops planted after March 15, 2022), will be considered for PCCP.
(b) Participants who are in violation of Highly Erodible Land or Wetlands Conservation (16 U.S.C. 3811, 3812, and 3821) are not eligible to receive benefits under PCCP.
(c) A person is not eligible to receive benefits under PCCP if at any time that person is determined to be ineligible for crop insurance.
(d) Supplemental Coverage Option, Enhanced Coverage Option, Post-Application Coverage Endorsement, and Hurricane Insurance Protection – Wind Index policies or endorsements are not eligible for PCCP.
(e) Stacked Income Protection Plan (STAX) and Margin Protection (MP) policies are only eligible for PCCP when insured as a standalone policy. STAX and MP endorsements to underlying polices are not eligible for PCCP.
§ 460.11 Calculating PCCP amounts for first insured crops.
(a) For the 2022 crop year, for eligible insured acres covered under a crop insurance policy for a first insured crop, the amount of premium support under PCCP for each insured acre will be $5, calculated on a CLU basis, with a maximum equal to the amount of premium owed by the insured.
(b) For the 2022 crop year, in states administering a cover crop program providing premium subsidy under an active MOU with RMA, as authorized by Section 508(c)(8) of the Federal Crop Insurance Act, insured acres qualifying for a state premium subsidy amount are eligible for a matching amount under PCCP, calculated on a CLU basis, which may be in addition to the amount in paragraph (a) of this section.
(1) The matching amount under PCCP per insured acre will be equal to the state contribution per insured acre on a CLU basis.
(2) The matching amount under PCCP per insured acre will be limited by the amount of premium owed by the insured on a CLU basis. If limited, the state contribution amount and matching PCCP amount will be reduced proportionately on a CLU basis.
(c) Amounts under PCCP are limited to the full amount of premium owed by the insured for the eligible insured acres on a CLU basis. If the full amount under PCCP would result in a negative premium balance for the insured on a CLU basis, PCCP amounts will be limited to the full amount of premium owed on a CLU basis, with the amount calculated in paragraph (b) of this section being applied first and the amount calculated in paragraph (a) of this section being applied second.
(1) In cases where insureds are eligible for both paragraphs (a) and (b) of this section, and premium owed on a CLU basis is less than the amount in paragraph (b) of this section, the state contribution amount and matching PCCP amount in paragraph (b) of this section will be reduced proportionally on a CLU basis, and there will be no PCCP premium support amount applied in paragraph (a) of this section.
(2) In cases where insureds are eligible for both paragraphs (a) and (b) of this section, and premium owed on a CLU basis is greater than the amount in paragraph (b) of this section but less than the sum of the amounts in paragraphs (a) and (b) of this section, there will be no reduction to the state contribution amount and matching PCCP amount in paragraph (b) of this section, and the PCCP premium support amount in paragraph (a) of this section will be reduced.
(d) If the eligible insured acres are adjusted or revised for any reason, such as an overreporting of insured acres, the amount under PCCP will be based on the eligible insured acres after any such amendment.
§ 460.12 Calculating PCCP amounts for WFRP.
(a) For the 2022 crop year, for eligible WFRP acres, the amount of premium support under PCCP for each acre will be $5, with a maximum equal to the amount of WFRP premium owed by the insured.
(b) PCCP amounts for WFRP are limited to the full amount of premium owed by the insured for the WFRP policy. If the full amount under PCCP would result in a negative premium balance for the insured, PCCP amounts will be limited to the full amount of premium owed.
(c) If the eligible WFRP acres are adjusted or revised for any reason, such as an overreporting of planted cover crop acres, the amount under PCCP will be based on the eligible WFRP acres after any such amendment.
§ 460.13 Accounting for PCCP amounts.
(a) The amount under PCCP will not be paid directly to eligible producers. FCIC and AIPs will account for the amount when calculating total producer premium due. AIPs will adjust participant bills accordingly. All bills follow the same terms and conditions specified in the crop insurance policy, regardless of PCCP amounts.
(b) PCCP premium support will be provided via premium billing adjustments by the applicable RMA premium billing date for the insured crop.
(c) PCCP premium support is available both for eligible insured acres and for eligible WFRP acres associated with the same planted acreage of qualifying cover crops.
(d) The payment limitations in 7 CFR 760.1507 are not applicable to PCCP.
(e) RMA will obtain cover crop records from FSA and determine eligibility such that eligible producers do not need to take any additional specific action through their crop insurance agent to enroll in the PCCP.
(1) In the event that any PCCP amount is determined to be incorrect, the amount will be recalculated until the 2022 reinsurance year annual settlement date of October 6, 2023, unless otherwise specified by the RMA Administrator.
(2) After October 6, 2023, the amount will be final except in cases of misrepresentation, fraud, scheme, or device.
Subpart C – [Reserved]
PARTS 461-499 [RESERVED]
CHAPTER V – AGRICULTURAL RESEARCH SERVICE, DEPARTMENT OF AGRICULTURE
PART 500 – NATIONAL ARBORETUM
Subpart A – Conduct on U.S. National Arboreturm Property
§ 500.1 General.
The rules and regulations in this part apply to the buildings and grounds of the U.S. National Arboretum (USNA), Washington, DC, and to all persons entering in or on such property. The Administrator, General Services Administration, has delegated to the Secretary of Agriculture, with authority to further delegate, the authority to make all the needful rules and regulations for the protection of the buildings and grounds of the USNA (34 FR 6406). The Secretary of Agriculture has in turn delegated such authority to the Administrator, Agricultural Research Service (34 FR 7389). The rules and regulations in this part are issued pursuant to such delegations.
§ 500.2 Recording presence.
Admission to the USNA during periods when it is closed to the public will be limited to authorized individuals who may be required to sign the register or display identification documents when requested by the Security Staff, or other authorized individuals.
§ 500.3 Preservation of property.
(a) While at the USNA, it is unlawful to:
(1) Willfully destroy, damage, or remove USNA property or any part thereof;
(2) Set or maintain any open fire on the property of the USNA; however, the use of small candles may be approved at the discretion of the Director, USNA; or
(3) Apply any type of insecticide or herbicide on the grounds of the USNA, except for USNA employees in the course of their official duties or other persons authorized by the Director, USNA.
(b) Persons not employed by USNA are not permitted to bring biological agents of any kind, including but not limited to disease and pest agents of plants, onto the property without written permission of the Director, USNA.
§ 500.4 Conformity with signs and emergency directions.
Persons in and on property of the USNA shall comply with official signs of prohibitory or directive nature and with the directions of authorized individuals.
§ 500.5 Nuisances.
(a) The use of loud, abusive, or otherwise improper language; unwarranted loitering, sleeping, or assembly; the creation of any hazard to persons or things; improper disposal of rubbish; spitting; prurient prying; the commission of any obscene or indecent act, or any other unseemly or disorderly conduct; throwing articles of any kind from a building, and climbing upon any part of a building is prohibited.
(b) Playing of music or creation of other noises of a decibel level high enough to be heard outside of the USNA is prohibited.
§ 500.6 Gambling.
Participating in games for money or other personal property, or the operation of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets, in or on USNA property, is prohibited.
§ 500.7 Intoxicating beverages and narcotics.
(a) Entering USNA property or the operation of a motor vehicle thereon, by a person under the influence of intoxicating beverages or a narcotic drug, is prohibited.
(b) Except as provided in subpart B of this part, possession of or consumption of intoxicating beverages on USNA property is prohibited.
(c) The sale of alcoholic beverages on the grounds of the USNA is prohibited.
(d) The possession of or use of narcotic drugs on the grounds of the USNA is prohibited.
§ 500.8 Soliciting, vending, debt collection, and distribution of handbills.
(a) The following activities are prohibited on USNA grounds:
(1) Soliciting of alms or contributions;
(2) Display or distribution of commercial advertising;
(3) Collecting private debts;
(4) Campaigning for election to any office;
(5) Soliciting and vending for commercial purposes (including, but not limited to, the vending of newspapers and other publications);
(6) Soliciting signatures on petitions, polls, or surveys (except as authorized by the USNA); and
(7) Impeding ingress to or egress from the USNA.
(b) Distribution to USNA general public visitors of material such as pamphlets, handbills, and flyers is prohibited without prior approval of the Director, USNA.
(c) The prohibitions in paragraphs (a) and (b) of this section do not apply to:
(1) Commercial or nonprofit activities performed under contract or concession with the USNA or pursuant to the provisions of the Randolph Sheppard Act;
(2) The solicitation of USNA personnel for contributions for the Combined Federal Campaign (CFC);
(3) National or local drives for funds for welfare, health, and other purposes sponsored or approved by the Agricultural Research Service; or
(4) Personal notices posted by employees on authorized bulletin boards.
§ 500.9 Photographs for news or advertising.
Photographs for news purposes may be taken at the USNA without prior permission. Photographs for advertising and other commercial purposes may be taken, but only with the prior approval of the Director, USNA and fees may be charged pursuant to § 500.23.
§ 500.10 Pets.
Pets brought upon USNA property must have proper vaccinations and, except assistance trained animals, must be kept on leash at all times. The release or abandonment of fish, plants, and animals of any kind on USNA grounds is prohibited.
§ 500.11 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles in or on USNA property shall drive only on established roads, shall drive in a careful and safe manner at all times, and shall comply with the signals and directions of the Security Staff and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms, or fire hydrants, and parking in designated no parking areas in or on USNA property is prohibited.
(c) Except in emergencies, parking in or on USNA property in other than designated areas is not allowed without a permit. Parking without authority, parking in unauthorized locations or in locations reserved for other persons, or contrary to the direction of posted signs, is prohibited.
(d) USNA approval is required for all vehicles needed for access setup and breakdown activities relating to special events, ceremonies, or related activities. Off-road routes will be determined by the USNA.
(e) In addition to the penalties provided in § 500.15, vehicles parked in violation of this section are subject to being towed and the cost of such towing being assessed to the owner of such vehicle.
(f) This section may be supplemented from time to time, by the issuance and posting of specific traffic directives as may be required, and when so issued and posted such directives shall have the same force and effect as if incorporated in this subpart.
§ 500.12 Weapons and explosives.
(a) No person while in or on USNA property shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, except for authorized official purposes.
(b) No person while in or on the USNA shall ignite fireworks or other pyrotechnical devices.
§ 500.13 Nondiscrimination.
The USNA is subject to the policy of nondiscrimination in programs or activities conducted by the United States Department of Agriculture as set forth in 7 CFR part 15d.
§ 500.14 Exceptions.
The Administrator, Agricultural Research Service, may in individual cases make prior, written exceptions to the rules and regulations in this part if it is determined to be not adverse to the public interest.
§ 500.15 Penalties and other law.
Whoever shall be found guilty of violating the rules and regulations in this subpart is subject to fine under title 18, United States Code, or imprisonment of not more than 30 days, or both (see 40 U.S.C. 1315(c)). Nothing contained in the rules and regulations in this part shall be construed as abrogating or authorizing the abrogation of any other regulations or any Federal law or any laws and regulations of the District of Columbia that may be applicable.
Subpart B – Fee Schedule for Certain Uses of National Arboretum Facilities and Grounds
§ 500.20 Scope.
This subpart sets forth schedules of fees for temporary use by individuals or groups of United States National Arboretum (USNA) facilities and grounds. This subpart also sets forth schedules of fees for the use of the USNA for commercial photography and cinematography. Fees generated will be used to offset costs of services or for the purposes of promoting the mission of the USNA. All rules and regulations noted in 7 CFR 500, subpart A – Conduct on the U.S. National Arboretum Property, will apply to individuals or groups granted approval to use the facilities and grounds for the purposes specified in this subpart.
§ 500.21 Fee schedule for tram and tours.
The USNA provides tours of the USNA grounds in a 48-passenger tram (accommodating 2 wheelchairs). The fee is as follows: $4.00 per adult, $3.00 per senior citizen or Friend of the National Arboretum, and $2.00 per child under the age 17. Children under 4 sharing a seat with an adult will not be charged. Pre-scheduled tram tours for groups may be arranged for a set fee of $125.00. Additionally, a tour guide may be pre-arranged to provide a non-tram tour for the fee of $50 per hour. Promotional programs offering discounted fees for these programs may be instituted at the discretion of the USNA. Payment for use of the tram is due at the time of ticket purchase. Payment for pre-scheduled tram tours must be made at least one week in advance. Payment for pre-scheduled, non-tram guided tours must be made at least one week in advance of the tour date.
§ 500.22 Fees and conditions for use of facilities and grounds.
(a) Fee requirement. (1) The USNA will charge a fee for temporary use by individuals or groups of USNA facilities and grounds. Fees for specific sites are listed in § 500.24.
(2) Non-profit scientific or educational organizations whose purposes and interests are complementary to the mission of the USNA and which substantially support the mission and purpose of the USNA (e.g., Friends of the National Arboretum, National Bonsai Foundation, National Capital Area Federation of Garden Clubs, Herb Society of America) may be exempted from the fee for use of USNA facility or grounds requirement of this subpart by the Director, but still must reimburse the USNA for its costs, including setup, clean-up, security, and other costs as applicable.
(3) A Half Day usage is defined as 4 hours or less; a Whole Day usage is defined as more than 4 hours in a day. In all cases, usage includes all time during which a venue is committed, including time used to set up before and clean up after an event. For after-hours usage of sites or facilities, an additional $40/hour will be added for supervision for each required staff member or security officer, with higher amounts required for sites or facilities that are more sensitive.
(b) Reservations. (1) Facilities and grounds are available by reservation at the discretion of the Director of the USNA and may be available to individuals or groups for uses that are consistent with the mission of the USNA. Agency initiatives may be granted first priority. Offices and hallways inside secured doors will not be available for use.
(2) Reservations to use USNA facilities and grounds may be made directly with the USNA. To ensure consideration, reservation requests should be made as far in advance as possible with a minimum of 15 calendar days prior to the date of use required for all reservations. This advanced notice will provide the USNA adequate time to prepare sites and assign staff and supervision as necessary.
(3) The USNA will make every effort to respond to requests in a quick and timely fashion. The USNA will respond to reservation requests within 5 working days with information as to whether the requested site is available for use. The USNA will also give notice to the prospective user of any planned activities (construction, maintenance, pesticide applications, and any similar activities) that might affect the planned use or event.
(4) A 50 percent non-refundable deposit will be due at the time of a booking in order to reserve a specific date and location. The remaining 50 percent is due five working days prior to the event.
(c) Terms and conditions of use. (1) The USNA provides space, water, and electrical hookup when available, and restrooms where available. Users must provide all tents, tables, chairs, trash receptacles, or other property required for the scheduled event. Users must remove all trash from the property at the conclusion of the event. Users must remove all tents, tables and chairs, and other property no later than 5:00 p.m. of the day following the event. The USNA will charge a facility use and break down fee of $500.00 per day for each day following the deadline to remove temporary facilities and equipment. The USNA will not store temporary facilities or equipment for users.
(2) Users must abide by USNA vehicle regulations in § 500.11 including the requirement to obtain USNA approval whenever off road access is required for setup.
(3) The USNA will not assume any responsibility for last minute changes due to failure of current mechanical systems, severe storms and other weather events, emergencies relating to security and safety.
(4) Some events that involve bringing animals and certain plants onto the USNA property may not be compatible with the plant research, display, and education mission of the USNA. Such events will be evaluated on a case-by-case basis and exceptions may be made by the Director of the USNA.
(5) Music and bands will be permitted but the decibel level of music should not be loud enough to be heard outside the boundaries of the USNA.
(6) (i) A refundable deposit as specified in paragraph (c)(6)(ii) of this section for use of the facility or grounds, excluding the classroom, will be collected in advance. In the event of building, property, or grounds damage or excessive cleaning requirements, the deposit will be used for repair and remediation and the balance will be refunded within 30 days of the event date. In the event that cleaning requirements or damage to the building, property or grounds exceeds the amount of the refundable deposit, the deposit will be used in full, with additional charges billed and due within 30 days of billing. Damages to plants, grounds, facilities, or equipment will be assessed on a value based on replacement costs, including labor.
(ii) Refundable Deposit Schedule.
| Event fee | Refundable deposit required |
|---|---|
| $15,000-10,000 | $2,000 |
| $9,999-5,000 | 1,000 |
| $4,999 and less | 500 |
(7) Upon prior request, the Director may approve the consumption of beer and wine during uses of USNA pursuant to this section. Such permission generally will not be granted during times when USNA is open to the public. Director approval shall be conditioned upon compliance by users and by any of their agents or contractors, with all applicable provisions of the District of Columbia Code governing sale and consumption of alcoholic beverages, including the rules of the District of Columbia Department of Consumer Affairs, Alcoholic Beverage Regulation Administration.
(8) All users of the USNA pursuant to this subpart, as well as all those contracting with such users of the USNA, shall comply with all Federal and local laws.
(9) The USNA is a Federal property under the jurisdiction of the United States Department of Agriculture.
All activities are subject to Federal rules and regulations governing the use of public buildings and grounds.
(10) The USNA will not be responsible for any damage or loss suffered by an individual, group, or their contractor during a permitted event at the USNA.
(11) The Director may impose additional incidental terms and conditions concerning the use of the USNA facilities consistent with this part.
(12) Marriage ceremonies and accompanying receptions may only be held in the Dogwood Collection.
§ 500.23 Fees for commercial photography and cinematography on grounds.
The USNA may charge a fee for the use of the facility or grounds for purposes of commercial photography or cinematography as specified in § 500.24. Facilities and grounds are available for use for commercial photography or cinematography at the discretion of the USNA Director. Requests for use should be made a minimum of two weeks in advance of the required date. The USNA will charge for supervision costs at the rate of $40.00 per hour per security officer, in addition to the fees listed below. The USNA Director may waive fees for photography or cinematography conducted for the purpose of disseminating information to the public regarding the USNA and its mission or for the purpose of First Amendment activity. The USNA will charge a non-refundable application fee of $30 for commercial photography or cinematography activities that use models, sets or props that are not part of the natural, cultural resources, or administrative facilities features of the site; take place where members of the public are generally not allowed; or take place at a location where additional administrative costs are likely. If the application is approved and fees will be incurred, the application fee will be applied to the total fee due. No other credits will be given for the application fee. Fee payments for use of facilities or grounds or for commercial photography and cinematography must be made in advance of services being rendered. These payments are to be made in the form of a check or money order.
§ 500.24 Fee Schedule.
| Event by category | Fee* | Unit | Notes |
|---|---|---|---|
| USNA Terrace | $12,000 | Per Day | Up to 240 seated or 300 standing. |
| USNA Herb Garden | 10,000 | Per Day | Entrance Circle, Rose and Knot Garden: Up to 48 seated or 100 standing; cannot be tented. Specialty Garden: Up to 200 standing; may not be tented. |
| USNA Meadow | 15,000 | Per Day | Up to 600 seated or 1000 standing. |
| USNA Administration Building Lobby | 2,000 | Per Day | Up to 150 standing. |
| USNA Auditorium | 2,500 | Per Day | Up to 120 seated or 200 standing. |
| Friendship Garden | 1,500 | Per Day | Up to 60 seated or 100 standing. |
| National Capitol Columns | 10,000 | Per Day | Up to 190 seated or 400 standing; cannot be tented; includes night lighting of columns. |
| Bonsai Museum International, Pavilion and Upper Courtyard | 10,000 | Per Day | Up to 120 seated or 200 standing. |
| Bonsai Museum Chinese Pavilion | 10,000 | Per Day | Up to 50 seated or 100 standing. |
| Dogwood Collection Allee & Circle | 3,000 | Per Day | Up to maximum of 150 people at event; reserved for marriage ceremonies and accompanying receptions only. |
| M Street Picnic Area | 5,000 | Per Day | Up to 200 seated or standing; paved or grassy areas can be tented. |
| Classroom | 125 50 | Per Day Per Half Day | Standard set-up with 40 chairs; includes microphone/lectern, screen, projection stand, two flip charts (no paper), and trashcan. |
| Still Photography: | |||
| Individual | No Charge | For personal use only; includes hand-held cameras, recorders and tripods. | |
| Other | $30 $250 plus Supervision | Application Fee Per Half Day | All photography that use models, sets or props that are not part of the site’s natural or cultural resources or administrative facilities; or take place where members of the public are generally not allowed; or take place at a location where additional administrative costs are likely. |
| Cinematography: | |||
| Set Preparation | $30 $250 plus Supervision | Application Fee Per Whole Day. | Set up; no filming. |
| Filming | $1,500 to $3,900 | Per Whole Day | Sliding scale based on number of people in cast and crew and number of pieces of equipment from 45 people and 6 pieces of equipment = $1,500 to 200 people = $3,900; 5 people with carry on equipment = same as still photography. |
* Fees include only access to sites; additional security charges may be necessary depending upon the site and the number of people participating.
§ 500.25 Payment of fees.
(a) Unless provided otherwise, all payments due under this subpart must be made by cash, check, or money order (in U.S. funds). Checks and money orders for payment of any fees imposed under this part are to be made payable, in U.S. funds, to the “U.S. National Arboretum.” Upon request, the USNA shall provide receipts to requesters for their records or billing purposes. If the USNA enters into an agreement to allow USNA visitors and users to make payment in the form of a credit card, USNA visitors and users who are assessed user fees may pay those fees with a credit card subject to the terms and conditions of such agreement.
(b) Any fees that become past due shall be collected in accordance with 7 CFR part 3.
PART 501 – CONDUCT ON U.S. MEAT ANIMAL RESEARCH CENTER, CLAY CENTER, NEBRASKA
§ 501.1 General.
The rules and regulations in this part apply to all property of or under the charge or control of the U.S. Meat Animal Research Center, Clay Center, Nebr. (hereinafter referred to as the Research Center), and to all persons entering in or on such property. The Administrator, General Services Administration, has delegated to the Secretary of Agriculture, with authority to redelegate, the authority to make all the needful rules and regulations for the protection of the Research Center (36 FR 1293). The Secretary of Agriculture has delegated this authority to the Director of Science and Education (36 FR 21706) who in turn has delegated such authority to the Administrator, Agricultural Research Service (36 FR 21706). The rules and regulations in this part are issued pursuant to such delegations. It is the responsibility of occupant or cooperating agency to require observance of these rules and regulations.
§ 501.2 Admission.
Admission to the Research Center during “off duty” hours shall be restricted to the main arteries and any deviation therefrom by individuals shall be limited to authorized individuals who may be required to sign a register and display identification documents when requested by a guard or other authorized individuals. “Off duty” hours will be posted at the Research Center. Admission during “duty” hours when the Center is closed to the public in emergency situations will be limited to authorized individuals who may be required to sign a register and display identification documents when requested by a guard or other authorized individual.
§ 501.3 Preservation of property.
It is unlawful to willfully destroy, damage, or remove property or any part thereof. Hunting, fishing, motorcycling, using snowmobiles, and other disturbances or encroachment activities are prohibited except for official purposes.
§ 501.4 Conformity with signs and emergency directions.
Persons in and on property of the Research Center shall comply with official signs of a prohibitory or directory nature, and with the directions of authorized individuals.
§ 501.5 Nuisances.
The use of loud, abusive, or otherwise improper language, unwarranted loitering, sleeping, or assembly, the creation of any hazard to persons or things, improper disposal of rubbish, spitting, prurient prying, the commission of any obscene or indecent act, or any other unseemly or disorderly conduct, throwing articles of any kind from a building, or climbing upon any part of a building is prohibited. Further, conduct which obstructs the usual use of entrances, foyers, corridors, offices, elevators, stairways and parking lots, or which otherwise tends to impede or disturb Center employees in the performance of their duties or which otherwise impedes the general public from obtaining the administrative services provided by the Research Center is prohibited.
§ 501.6 Gambling.
Participating in games for money or other personal property, or the operation of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets, in or on Research Center property, is prohibited.
§ 501.7 Intoxicating beverages and narcotics.
Entering Research Center property or the operating of a motor vehicle thereon, by a person under the influence of intoxicating beverages or narcotic drug, hallucinogen, marijuana, barbiturate, or amphetamine (unless prescribed by a physician) or the consumption of such beverages, or the use of any such drug or substance in or on the Research Center property, is prohibited.
§ 501.8 Soliciting, vending, debt collection, and distribution of handbills.
The soliciting of alms and contributions, commercial soliciting and vending of all kinds, the display or distribution of commercial advertising, or the collecting of private debts, in or on Research Center property, is prohibited. This section does not apply to national or local drives for funds for welfare, health, and other purposes sponsored or approved by the Agricultural Research Service, concessions, or personal notices posted by employees on authorized bulletin boards. Distribution of material such as pamphlets, handbills, and flyers or the posting of mateirals on bulletin boards or elsewhere, is prohibited without prior approval of authorized individuals.
§ 501.9 Photographs for news, advertising, or commercial purposes.
Except where security regulations apply, or a Federal court order or rules prohibit it, photographs for news purposes may be taken in entrances, lobbies, foyers or auditoriums when used for public meetings without prior permission. Photographs for advertising and commercial purposes may be taken only with the prior written permission of the Director, Research Center. Photographs for news, advertising, or commercial purposes may be taken in space or areas occupied by a cooperator only with the consent of the cooperator concerned and the Director, Research Center.
§ 501.10 Pets.
Animals shall be brought or allowed, as applicable, upon the Research Center only with the prior written approval of the Director, Research Center, except seeing eye dogs may be brought to the reception area serving the offices of the Director, Research Center, without prior approval.
§ 501.11 Mobile equipment and pedestrian traffic.
(a) Drivers, operators, or pilots of all equipment whether or not motorized in or on Research Center property, or within the scope of Research Center activity, shall operate in a careful and safe manner at all times and shall comply with the signals and directions of guards, special policemen, or other authorized individuals, and all posted traffic signs;
(b) The blocking of entrances, driveways, walks, railways, runways, loading platforms, or fire hydrants in or on Research Center property is prohibited;
(c) Except in emergencies, parking or landing in or on Research Center property in other than designated areas is not allowed without a permit. Parking without authority, parking in unauthorized locations or in locations reserved for other persons, or parking continuously in excess of ten hours without permission, or contrary to the direction of posted signs is prohibited. This section may be supplemented from time to time by the issuance and posting of specific traffic directives as may be required, and when so issued and posted such directives shall have the same force and effect as if made a part hereof;
(d) The operation of unlicensed gasoline powered vehicles is prohibited.
§ 501.12 Weapons and explosives.
No person while in or on Research Center property shall carry firearms, bows and arrows, darts, other dangerous or deadly weapons, or explosives, either openly or concealed, except as officially authorized, for official purposes.
§ 501.13 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against any person or persons because of race, sex, religion, color, or national origin, in furnishing, or by refusing to furnish to such person or persons the use of any facility of a public nature, including all service, privileges, accommodations, and activities provided thereby on Research Center property.
§ 501.14 Non-Federal law enforcement.
Research Center special policemen may be deputized by State or local law enforcement agencies to exercise police power on property outside the Research Center. With the consent of any State or local law enforcement agency, the facilities or services of such State or local law enforcement agency may be utilized by the Research Center.
§ 501.15 Exceptions.
The Administrator, Agricultural Research Service, may in individual cases make prior, written exceptions to the rules and regulations in this part if he determines it to be not adverse to the public interest.
§ 501.16 Penalties and other law.
Whoever shall be found guilty of violating the rules and regulations in this part where the United States has and exercises exclusive or concurrent legislative jurisdiction, is subject to fine of not more than $50 or imprisonment or not more than 30 days, or both (see 40 U.S.C. 318c). Nothing contained in the rules, regulations, or penalties in this part shall be construed as abrogating or authorizing the abrogation of any other rules, regulations, penalties, or any Federal law, or any State and local laws and regulations which may be applicable.
PART 502 – CONDUCT ON BELTSVILLE AGRICULTURE RESEARCH CENTER PROPERTY, BELTSVILLE, MARYLAND
§ 502.1 General.
The rules and regulations in this part apply to the buildings and grounds of the Beltsville Agricultural Research Center (BARC), Beltsville, MD, and to any persons entering in or on such property. The Administrator, General Services Administration, has delegated to the Secretary of Agriculture, with authority to redelegate, the authority to make all the needful rules and regulations for the protection of the buildings, grounds, equipment, and experimental plants and animals of BARC (36 FR 18440). The Secretary of Agriculture has delegated this authority to the Under Secretary for Research, Education, and Economics (60 FR 56392) who in turn has delegated such authority to the Administrator, Agricultural Research Service (60 FR 56392). The rules and regulations in this part are issued pursuant to such delegations.
§ 502.2 Admission.
Admission to BARC during “off duty” hours shall be restricted to the main arteries and any deviation therefrom by individuals shall be limited to authorized individuals who may be required to sign a register and display identification documents when requested by BARC Security or other authorized individual. “Off duty” hours will be posted at BARC. Admission during “duty” hours when BARC is closed to the public in emergency situations will be limited to authorized individuals who may be required to sign a register and display identification documents when requested by BARC Security or other authorized individual.
§ 502.3 Preservation of property.
It is unlawful to willfully destroy, damage, or remove property or any part thereof.
§ 502.4 Conformity with signs and emergency directions.
Persons in and on property of BARC shall comply with official signs of a prohibitory or directory nature, and with the directions of authorized individuals.
§ 502.5 Nuisances.
The use of loud, abusive or otherwise improper language, unwarranted loitering, sleeping, or assembly, the creating of any hazard to persons or things, improper disposal of rubbish, spitting, prurient prying, the commission of any obscene or indecent act, or any other unseemly or disorderly conduct, throwing articles of any kind from a building, or climbing upon any part of a building is prohibited. Further, conduct which obstructs the usual use of entrances, foyers, corridors, office elevators, stairways and parking lots, or which otherwise tends to impede or disturb BARC employees in the performance of their duties or which otherwise impedes the general public from obtaining the administrative services provided by BARC is prohibited.
§ 502.6 Hunting, fishing, camping, horseback riding.
The use of BARC grounds for any form of hunting, fishing, camping, or horseback riding is prohibited. Further, the use of these grounds for unauthorized picnicking is also prohibited.
§ 502.7 Gambling.
Participating in games for money or other personal property, or the operation of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets, in or on BARC property, is prohibited.
§ 502.8 Intoxicating beverages and narcotics.
Entering BARC property or the operation of a motor vehicle thereon, by a person under the influence of intoxicating beverages or narcotic drug, hallucinogen, marihuana, barbiturate, or amphetamine (unless prescribed by a physician) or the consumption of such beverages, or the use of any such drug or substance in or on BARC property, is prohibited.
§ 502.9 Soliciting, vending, debt collection, and distribution of handbills.
The soliciting of alms and contributions, commercial soliciting and vending of all kinds or the display or distribution of commercial advertising, or the collecting of private debts, in or on BARC property, is prohibited. This section does not apply to national or local drives for funds for welfare, health, and other purposes sponsored or approved by the Agricultural Research Service, concessions, or personal notices posted by employees on authorized bulletin boards. Distribution of material such as pamphlets, handbills, and flyers or the posting of materials on bulletin boards or elsewhere is prohibited without prior approval of the Director, Beltsville Area.
§ 502.10 Photographs by visitors or for news, advertising, or commercial purposes.
Photographs may be taken by visitors or for news purposes without prior permission. Photographs for advertising and commercial purposes may be taken at BARC only with the prior written approval of the Director, Beltsville Area.
§ 502.11 Pets.
Pets, except assistance trained animals, brought upon BARC property must be kept on a leash and have proper vaccinations. Pets that are the property of employees residing on BARC must be up to date on their vaccinations, in accordance with State or local laws, and be kept on a leash or similarly restrained. The abandonment of unwanted animals on BARC grounds is prohibited.
§ 502.12 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles whether or not motorized in or on BARC property shall drive in a careful and safe manner at all times and shall comply with the signals and directions of the security staff and all posted traffic signs;
(b) The blocking of entrances, driveways, walks, loading platforms, or fire hydrants in or on BARC property is prohibited;
(c) Except in emergencies, parking in or on BARC property in other than designated areas is not allowed without a permit. Parking without authority, parking in unauthorized locations or in locations reserved for other persons, or contrary to the direction of posted signs is prohibited. This section may be supplemented from time to time, by the issuance and posting of specific traffic directives as may be required, and when so issued and posted such directives shall have the same force and effect as if made a part hereof.
(d) The operation of unlicensed gasoline powered vehicles is prohibited.
§ 502.13 Weapons and explosives.
No person while in or on BARC property shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, except as officially authorized for official purposes.
§ 502.14 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against any person or persons because of race, religion, color, sex, age, disability or national origin, in furnishing, or by refusing to furnish to such person or persons the use of any facility of a public nature, including all services, privileges, accommodations, and activities provided thereby on BARC property.
§ 502.15 Exceptions.
The Administrator, Agricultural Research Service, may in individual cases, make prior, written exceptions to the rules and regulations in this part, if a determination is made that the exception is not adverse to the public interest.
§ 502.16 Penalties and other law.
Whoever shall be found guilty of violating the rules and regulations in this part is subject to fine of not more than $50 or imprisonment of not more than 30 days, or both (see 40 U.S.C. 318c). Nothing contained in the rules and regulations in this part shall be construed as abrogating or authorizing the abrogation of any other regulations or any Federal law or any laws and regulations of the State of Maryland.
PART 503 – CONDUCT ON PLUM ISLAND ANIMAL DISEASE CENTER
§ 503.1 General.
The rules and regulations in this part cover the buildings, grounds, and vessels of the Plum Island Animal Disease Center (PIADC), United States Department of Agriculture, Orient Point, New York, and apply to all persons entering in or on such properties both on the mainland, Orient Point, New York, and on Plum Island. The Administrator, General Services Administration, has delegated to the Secretary of Agriculture authority to make all needful rules and regulations, and to annex to such rules and regulations such reasonable penalties (not to exceed those prescribed in 40 U.S.C. 318c) as will ensure their enforcement for the protection of persons and property at Plum Island, New York. The Secretary of Agriculture has redelegated this authority to the Assistant Secretary for Conservation, Research, and Education, who in turn has delegated it to the Administrator, Agricultural Research Service (38 FR 31166).
§ 503.2 Admission.
No person will be admitted to PIADC, into animal holding areas, specified restricted areas, laboratory compounds, or into laboratories without having in his or her possession a specific approved pass or permit authorized by the Director, PIADC, to enter such areas. The pass must be presented at the request of the guard or other authorized PIADC safety representative.
§ 503.3 Preservation of property.
The willful destruction, damage to or removal of property or any part thereof from the Government-owned buildings, grounds, and vessels in or on the PIADC is prohibited.
§ 503.4 Conformity with Plum Island regulations.
Persons in and on PIADC shall at all times comply with official signs of a prohibitory or directory nature and with the directions of law enforcement or other authorized officials.
§ 503.5 Nuisances.
The use of loud, abusive or otherwise improper language, unwarranted loitering, sleeping or assembly, the creation of any hazard to persons or things, improper disposal of rubbish, spitting, prurient prying, or the commission of any obscene or indecent act in or on the PIADC is prohibited.
§ 503.6 Camping, boating, and fishing.
The use of PIADC as a recreational area for camping, boating, fishing, and picnicking is prohibited. The use of Plum Island beaches for unauthorized landings and sightseeing is prohibited.
§ 503.7 Gambling.
Participating in games for money or other personal property, or the operation of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets in or on the PIADC is prohibited.
§ 503.8 Intoxicating beverages and narcotics.
Entering the PIADC or operating a motor vehicle thereon by a person under the influence of intoxicating beverages or narcotic drugs, or the consumption of such beverages or the use of such drugs in or on the PIADC, is prohibited.
§ 503.9 Soliciting, vending, debt collection, and distribution of handbills.
The soliciting of alms and contributions, commercial soliciting and vending of all kinds, the display or distribution of commercial advertising, or the collecting of private debts, in or on PIADC is prohibited. This section does not apply to national or local drives for funds for welfare, health, and other purposes, sponsored or approved by the PIADC, or concessions or personal notices posted by employees on authorized bulletin boards. Unauthorized distribution of materials such as pamphlets, handbills, and flyers is prohibited.
§ 503.10 Photographs for news, advertising, commercial purposes or for personal use.
Photographs on the PIADC for news, advertising, commercial purposes, or personal use may be taken only with prior written permission of Director, PIADC.
§ 503.11 Pets.
No pets or animals of any kind may be brought to the PIADC.
§ 503.12 Vehicular and pedestrian traffic.
Drivers of all vehicles on the PIADC Government-owned parking areas in PIADC shall drive in a careful and safe manner at all times and shall comply with the signals and directions of guards and all posted traffic signs. Pedestrians will also observe specific safety directives as may be issued and posted from time to time by the Director, PIADC, or his authorized representative.
§ 503.13 Weapons and explosives.
No person while in or on the PIADC shall carry firearms or other dangerous or deadly weapons or explosives either openly or concealed, except when authorized to do so for official purposes by the Director, PIADC, or his authorized representative.
§ 503.14 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against any person or persons because of race, religion, sex, color, or national origin in furnishing or refusing to furnish to such person or persons the use of any facility of a public nature, including all services, privileges, accommodations and activities provided by the PIADC.
§ 503.15 Exceptions.
The Director, PIADC, may, in specific cases, make prior written exceptions to the rules and regulations in this part if he determines it to be in the best interest of the Government.
§ 503.16 Penalties and other law.
Whoever shall be found guilty of violating any rule or regulation in this part while in or on the PIADC is subject to a fine of not more than $50 or imprisonment of not more than 30 days, or both. (See 40 U.S.C. 318c.) Nothing contained in these rules and regulations shall be construed to abrogate any other Federal laws or regulations, or any State and local laws and regulations, applicable to the PIADC.
PART 504 – USER FEES
§ 504.1 General statement.
This part sets forth fees to be charged for the deposit and distribution of microbial patent cultures. The fees set forth in this part are applicable to the Agricultural Research Service (ARS) Patent Culture Collection, Northern Regional Research Center, Peoria, Illinois.
§ 504.2 Fees for deposit and requisition of microbial cultures.
(a) Depositors of microbial cultures must pay a one-time $670 user fee for each culture deposited on or after December 1, 2015.
(b) For cultures deposited on or after December 1, 2015, requestors must pay a $40 user fee for each culture distributed.
§ 504.3 Payment of fees.
(a) Payment of user fees must accompany a culture deposit or request.
(b) Payment shall be made by check, draft, money order, or pay.gov, payable to USDA, National Finance Center.
§ 504.4 Exemptions from user fee charges.
(a) USDA laboratories and ARS cooperators designated by the Curator of the ARS Patent Culture Collection are exempt from fee assessments.
(b) The Curator of the ARS Patent Culture Collection is delegated the authority to approve and revoke exemptions from fee assessments.
§ 504.5 Address.
Deposits of and requests for microbial patent cultures should be directed to the Curator, ARS Patent Culture Collection, Northern Regional Research Center, USDA-ARS, 1815 N. University St., Peoria, Illinois 61604; (309) 685-4011.
PART 505 – NATIONAL AGRICULTURAL LIBRARY FEES FOR LOANS AND COPYING
§ 505.1 Scope and purpose.
These regulations establish fees for loans, copying, or reproduction of materials in the collections of the National Agricultural Library (NAL) within the United States Department of Agriculture (USDA).
§ 505.2 Fees for loans, copying, and reproduction of materials in library collections.
(a) NAL will provide interlibrary loan service (including loans of original materials from its collections and copies of portions of documents with copyright compliance) and charge fees for such service to other non-Federal and non-USDA libraries and institutions. Loans will be provided within the United States and Canada only. Copies will be provided within the United States and internationally.
(b) Interlibrary loan service will be provided at a flat fee of $18 per request for libraries paying electronically through the Online Computer Library Center’s (OCLC) Interlibrary Loan Fee Management (IFM) program and at a flat rate of $25 per request for libraries paying by other methods.
(c) Cost for replacement of lost or damaged items will be the actual cost to purchase a replacement plus a $50.00 processing fee; or if replacement cost cannot be determined, a flat rate of $75.00 for monographs or $150.00 for audiovisuals per item plus a $50.00 processing fee.
(d) Photographic services from NAL Special Collections will be charged at cost for reproduction of the photo product (slides, transparencies, etc.) plus a preparation fee of $25.00 per half hour or fraction thereof.
§§ 505.3-505.5 [Reserved]
§ 505.6 Payment of fees.
NAL charges for interlibrary loans through OCLC’s IFM Program (an electronic debit/credit payment program for libraries using OCLC’s resource sharing service) or by invoice through the National Technical Information Service (NTIS) of the United States Department of Commerce. Payment for invoiced services will be made by check, money order, or credit card in U.S. funds directly to NTIS upon receipt of invoice from NTIS. NAL encourages users to establish deposit accounts with NTIS for payment of interlibrary loan fees. Subject to a reduction for the actual costs of performing the invoicing service by NTIS, all funds will be returned to NAL for credit to the appropriations account charged with the cost of processing the interlibrary loan request.
PART 510 – PUBLIC INFORMATION
§ 510.1 General statement.
This part is issued in accordance with the regulations of the Secretary of Agriculture in part 1, subpart A of this title and appendix A thereto, implementing the Freedom of Information Act (FOIA) (5 U.S.C. 552). The Secretary’s regulations, as implemented by the regulations in this part, govern the availability of records of the Agricultural Research Service (ARS) to the public.
§ 510.2 Public inspection, copying, and indexing.
5 U.S.C. 552(a)(2) requires that certain materials be made available for public inspection and copying and that a current index of these materials be published quarterly or otherwise be made available. Members of the public may request access to such materials maintained by ARS at the following office: Information Staff, ARS, REE, USDA, Room 1-2248, Mail Stop 5128, 5601 Sunnyside Avenue, Beltsville, MD 20705-5128; Telephone (301) 504-1640 or (301) 504-1655; TTY-VOICE (301) 504-1743. Office hours are 8 a.m. to 4:30 p.m. Information maintained in our electronic reading room can be accessed at http://www.ars.usda.gov/is/foia/#Electronic.
§ 510.3 Requests for records.
Requests for records of ARS under 5 U.S.C. 552(a)(3) shall be made in accordance with Subsection 1.5 of this title and submitted to the FOIA Coordinator, Information Staff, ARS, REE, USDA, Mail Stop 5128, 5601 Sunnyside Avenue, Beltsville, MD 20705-5128; Telephone (301) 504-1640 or (301) 504-1655; TTY-VOICE (301) 504-1743; Facsimile (301) 504-1648; e-mail [email protected] or [email protected]. The FOIA Coordinator is delegated authority to make determinations regarding such requests in accordance with Subsection 1.3(c) of this title.
§ 510.4 Multitrack processing.
(a) When ARS has a significant number of requests, the nature of which precludes a determination within 20 working days, the requests may be processed in a multitrack processing system, based on the date of receipt, the amount of work and time involved in processing the request, and whether the request qualifies for expedited processing.
(b) ARS may establish as many processing tracks as appropriate; processing within each track shall be based on a first-in, first-out concept, and rank-ordered by the date of receipt of the request.
(c) A requester whose request does not qualify for the fastest track may be given an opportunity to limit the scope of the request in order to qualify for the fastest track. This multitrack processing system does not lessen agency responsibility to exercise due diligence in processing requests in the most expeditious manner possible.
(d) ARS shall process requests in each track on a “first-in, first-out” basis, unless there are unusual circumstances as set forth in § 1.16 of this title, or the requester is entitled to expedited processing as set forth in § 1.9 of this title.
§ 510.5 Denials.
If the FOIA Coordinator determines that a requested record is exempt from mandatory disclosure and that discretionary release would be improper, the FOIA Coordinator shall give written notice of denial in accordance with § 1.7(a) of this title.
§ 510.6 Appeals.
Any person whose request is denied shall have the right to appeal such denial. Appeals shall be made in accordance with § 1.14 of this title and should be addressed as follows: Administrator, ARS, U.S. Department of Agriculture, Washington, DC 20250.
PART 520 – PROCEDURES FOR IMPLEMENTING NATIONAL ENVIRONMENTAL POLICY ACT
§ 520.1 General statement.
These procedures assure that research and other activities of the Agricultural Research Service (ARS) comply with the intent of the National Environmental Policy Act of 1969 (NEPA) and appropriate regulations implementing this Act. These procedures incorporate and supplement, and are not a substitute for, CEQ regulations under 40 CFR parts 1500-1508, and Department of Agriculture NEPA Policies and Procedures under 7 CFR part 1b. ARS conducts and supports research as authorized by legislation to support one of the USDA goals of assuring adequate supplies of high quality food and fiber. Information generated through such research often forms the basic data needed to assess the impact of a new technology upon the environment. Large scale projects simulating commercial practices are normally implemented in cooperation with other agencies of the Federal or State Governments.
§ 520.2 Definition.
Control Agents mean biological material or chemicals which are intended to enhance the production efficiency of an agricultural crop or animal such as through elimination of a pest.
§ 520.3 Policy.
(a) It is ARS policy to comply with the provisions of NEPA and related laws and policies.
(b) Environmental documents should be concise, written in plain language, and address the issues pertinent to the decision being made.
(c) Environmental documents may be substituted or combined with other reports which serve to facilitate decisionmaking.
(d) Costs of analyses and environmental documents are to be planned for during the budgetary process for the plan, program, or project. Special provisions for financing NEPA process activities which are unanticipated and extraordinary may be made in the Office of the Administrator of ARS.
(e) ARS personnel will cooperate with other agencies, States, contractors, or other entities proposing to undertake activities involving the ARS to assure that NEPA considerations are addressed early in the planning process to avoid delays and conflicts as required by 40 CFR 1501.2.
(f) For some activities, project participants outside ARS may be required to provide data and documentation. When an applicant or contractor prepares an environmental assessment (EA) or a contractor prepares an environmental impact statement (EIS), the activities shall be carried out according to 40 CFR 1506.5.
(g) Environmental documents, decision notices, and records of decision must be made available for review by the public. There shall be an early and open process for determining the scope of issues to be addressed in the environmental analysis process (40 CFR 1501.7).
(h) The concepts of tiering to eliminate repetitive discussions applicable to EIS’s (40 CFR part 1502) are also applicable to EA’s.
(i) ARS personnel may adopt an existing EA or EIS when a proposed action is substantially the same as the action for which the existing EA or EIS was prepared (40 CFR 1506.3 (b)).
(j) ARS personnel may incorporate by reference any existing documents in order to reduce the bulk of an EA or EIS (40 CFR 1502.21).
(k) After prior consultation with the Council on Environmental Quality, ARS personnel may forego preparation of an EA or EIS in emergency situations (40 CFR 1506.11).
§ 520.4 Responsibilities.
(a) Administrator. The Administrator is responsible for environmental analysis and documentation required for compliance with the provisions of NEPA and related laws, policies, plans, programs, and projects. The ARS Deputy Administrator for Natural Resources has been delegated responsibility for the establishment of procedures and coordination necessary to carry out the policies and provisions of NEPA.
(b) Deputy Administrators and Area Directors. The Deputy Administrators and Area Directors are responsible to the Administrator for assuring that ARS programs are in compliance with the policies and procedures of NEPA.
§ 520.5 Categorical exclusions.
For the following categories of actions, the preparation of an EA or EIS is not required:
(a) Department of Agriculture categorical exclusions (7 CFR 1b.3). (1) Policy development, planning and implementation which are related to routine activities such as personnel, organizational changes or similar administrative functions;
(2) Activities which deal solely with the functions of programs, such as program budget proposals, disbursement, transfer or reprogramming of funds;
(3) Inventories, research activities and studies, such as resource inventories and routine data collection when such actions are clearly limited in context and intensity;
(4) Educational and information programs and activities;
(5) Activities which are advisory and consultative to other agencies, public and private entities, and
(6) Activities related to trade representation and market development activities overseas.
(b) ARS categorical exclusions. ARS actions which, based on previous experience, have been found to have limited scope and intensity and produce little or no individual or cumulative impacts to the human environment. Some examples are:
(1) Repair, replacement of structural components or equipment, or other routine maintenance of facilities controlled in whole or in part by ARS;
(2) Research programs or projects of limited size and magnitude or with only short-term effects on the environment. Examples are:
(i) Research operations conducted within any laboratory, greenhouse or other contained facility where research practices and safeguards prevent environment impacts such as the release of hazardous materials into the environment;
(ii) Inventories, studies or other such activities that have limited context and minimal intensity in terms of changes in the environment;
(iii) Testing outside of the laboratory, such as in small isolated field plots, which does not involve the use of control agents requiring containment or a special license or a permit from a regulatory agency.
(c) Exceptions to categorical exclusions. An environmental assessment shall be prepared for an activity which is normally within the purview of categorical exclusion if there are extraordinary circumstances which may cause such activity to have a significant environmental effect.
§ 520.6 Preparation of an Environmental Assessment (EA).
(a) Actions requiring EA. The following actions would normally require an EA:
(1) Programs, supported in the majority by ARS, which may assist in the transition of a particular technology from field evaluation stage to large-scale demonstration or simulated commercial phase;
(2) Field work having an impact on the local environment such as earth excavation, explosives, weather modifications, or other such techniques; and
(3) The testing outside the laboratory, such as small isolated field plots, of control agents which require containment precautions or either a special license or a permit from a regulatory agency.
(b) Multiple agencies actions. If more than one Federal agency participates in a program activity, the EA shall be prepared by the lead agency as provided in 40 CFR 1501.5.
(c) Format and conclusion. An EA can be in any format provided it covers in a logical and succinct fashion the information necessary for determining whether a proposed Federal action may have a significant environmental impact and thus warrant preparation of an EIS. The EA will contain the information required by 40 CFR 1508.9. This information will include brief discussions of the need for the project or other proposal, alternatives, environmental impacts of the proposed action and alternatives and a listing of agencies and persons consulted.
(d) Decision notice. Upon completion of an EA, the responsible official will consider the information it contains, decide whether an EIS is required or that no significant environmental impact will occur, and will document the decision and the reasons for it. The decision and the EA shall be available to the public in a manner appropriate to the situation. If there is a finding of no significant impact, the EA may be combined with the decision notice.
§ 520.7 Preparation of an Environmental Impact Statement (EIS).
(a) Actions requiring EIS. An EIS will normally be prepared for:
(1) Proposals for legislation which are determined to be a major Federal action significantly affecting the quality of the human environment; or,
(2) Other major Federal actions significantly affecting the quality of the human environment. In the experience of ARS, an environmental impact statement shall normally be required in situations when a research project has advanced beyond the laboratory and small plot testing to full scale field testing over a very large area and involving the introduction of control agents.
(b) Notice of intent. If the responsible official recommends the preparation of an EIS, then the public shall be apprised of the decision. This notice shall be prepared according to 40 CFR 1508.22.
(c) Draft and final EIS. The process of preparing the draft and final EIS, as well as the format, shall be according to 40 CFR parts 1502-1506.
(d) Decisionmaking and implementation. The responsible official may make a decision no sooner than thirty days after the notice of availability of the final EIS has been published in the
PART 550 – GENERAL ADMINISTRATIVE POLICY FOR NON-ASSISTANCE COOPERATIVE AGREEMENTS
§ 550.100 Purpose and scope.
(a) Purpose. This part adopts the OMB guidance in subparts A through F of 2 CFR part 200, as supplemented by this part, as REE policies and procedures for non-assistance cooperative agreements executed under the authority of Section 1472(b) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C 3318(b)). It thereby makes applicable for REE non-assistance cooperative agreements the OMB guidance, as supplemented by this part.
(b) Scope. The REE Agencies subject to this rule include ARS, National Agricultural Statistics Service (NASS), Economics Research Service (ERS), and the National Institute of Food and Agriculture (NIFA). These agreements are neither procurement nor assistance in nature, and therefore, are not subject to the Federal Grant and Cooperative Agreements Act of 1977.
§ 550.101 Definitions.
As used in this part:
Agency Principal Investigator means the REE Agency technical representative, acting within the scope of delegated authority, who is responsible for participating with the cooperator in the accomplishment of a non-assistance cooperative agreement’s objective(s), and monitoring and evaluating the cooperator’s performance (i.e., ARS PI).
Authorized Departmental Officer (ADO) means the REE Agency’s official with delegated authority to negotiate, award, administer, and terminate non-assistance cooperative agreements.
Award means an executed non-assistance cooperative agreement.
Cooperator means an eligible entity, as defined in 7 U.S.C. 3318(b), who enters into a non-assistance cooperative agreement with a REE Agency to further research, extension, or teaching programs in the food and agricultural sciences.
Cooperator resource contributions means a real and substantial contribution of resources (more than nominal), in furtherance of the objective(s) of the award, in order to evoke a partnership such that all parties to the agreement have a true stake in the project.
Funding period means the period of time when Federal funding is available for obligation by the cooperator (start date through end date).
Non-Assistance Cooperative Agreement (NACA) means a legal instrument which is neither a procurement contract nor an assistance-type cooperative agreement, that furthers agricultural research, extension, or teaching programs in which the objectives of the agreement serve a mutual interest of the parties in agricultural research, extension, and teaching activities and all parties contribute resources to the accomplishment of those objectives.
Peer Review is a process utilized by REE Agencies to determine if agency sponsored research projects have scientific merit and program relevance; to provide peer input, and make improvements to project design and technical approaches; and to provide insight on how to conduct the highest quality research in support of REE Agency missions and programs.
Principle Investigator (PI) means the individual, designated by the cooperator, responsible for directing and monitoring the performance, the day-to-day activities, and the scientific and technical aspects of the cooperator’s portion of a REE funded project. The PI works jointly with the REE Agency PI in the development of project objectives and all other technical and performance related aspects of the program or project. See additional responsibilities of PI in § 550.111 of this part.
REE Agency means the USDA, REE Mission Area agency (ARS, ERS, NASS, or NIFA) that enters into a non-assistance cooperative agreement.
State Cooperative Institution is defined in 7 U.S.C. 3103(18) as institutions designated or receiving funds pursuant to the following eight statutory requirements, as may be amended:
(1) The First Morrill Act – The Land Grant Institutions.
(2) The Second Morrill Act – The 1890 Institutions, including Tuskegee University.
(3) The Hatch Act of March 2, 1887 (24 Stat. 440-442, as amended; 7 U.S.C. 361a-361i) – The State Agricultural Experiment Stations.
(4) The Smith-Lever Act of May 8, 1914 (38 Stat. 372-374, as amended; 7 U.S.C. 341-349) – The State Extension Services.
(5) The McIntire-Stennis Cooperative Forestry Act; 16 U.S.C. 582a et seq. – Cooperating Forestry Schools.
(6) Public Law 95-113, Section 1430 – A college or university having an accredited college of veterinary medicine or a department of veterinary science or animal pathology or similar unit conducting animal health and disease research in a State Agricultural Experiment Station.
(7) Public Law 95-113, Section 1475(b), as added by Public Law 97-98, section 1440 – Colleges, universities, and Federal laboratories having a demonstrated capacity in aquaculture research.
(8) Public Law 95-113, section 1480, as added by Public Law 97-98, section 1440 – Colleges, universities, and Federal laboratories having a demonstrated capacity of rangeland research.
§ 550.102 Applicability.
This part applies to all REE non-assistance cooperative agreements awarded under the authority of 7 U.S.C. 3318(b).
§ 550.103 Eligibility.
REE Agencies may enter into a non-assistance cooperative agreements with eligible entities to further research, extension, or teaching programs in the food and agricultural sciences. Eligible entities are any State agricultural experimental station, State cooperative extension service, any college or university, other research or education institution or organization, Federal or private agency or organization, an individual, or other party, either foreign or domestic.
§ 550.104 Competition.
REE Agencies may enter into non-assistance cooperative agreements, as authorized by this part, without regard to any requirements for competition specified in 2 CFR 200.202 and 200.206. (7 U.S.C. 3318(e)).
§ 550.105 Duration.
REE Agencies may enter into non-assistance cooperative agreements for a period not to exceed five years. (7 U.S.C. 3318(c)).
§ 550.106 Mutuality of interest.
The REE Agency must document all parties’ interest in the project. Mutual interest exists when all parties benefit in the same qualitative way from the objectives of the award. If one party to the non-assistance cooperative agreement would independently have an interest in the project, which is shared by the other party, and all parties contribute resources to obtain the end result of the project, mutual interest exists.
§ 550.107 Exceptions.
This part does not apply to:
(a) USDA Federal Financial Assistance agreements subject to 2 CFR parts 400 and 415;
(b) Procurement contracts or other agreements subject to the Federal Acquisition Regulation (FAR) or the Agriculture Acquisition Regulation (AgAR); or
(c) Agreements providing loans or insurance directly to an individual.
§ 550.108 Conflicting policies and deviations.
This part supersedes and takes precedence over any individual REE regulations and directives dealing with executed and administered non-assistance cooperative agreements entered into under the delegated authority of 7 U.S.C. 3318(b). This part may only be superseded, in whole or in part, by a specifically worded Federal statute, regulation, or Executive Order. Deviations from specific provisions of part 550 must be authorized by the USDA-REE-Administrative and Financial Management (AFM)-Financial Management and Agreements Division (FMAD), or any successor organization, based on a documented justification. In the interest of maximum uniformity, exceptions from any requirements of this Part will be permitted only in unusual circumstances. Responsibility for developing, interpreting, and updating this Part is assigned to the USDA-REE-AFM-FMAD, or any successor organization.
§ 550.109 Formation of non-assistance cooperative agreements.
In lieu of 2 CFR 200.201 through 200.204, 200.206, and 200.306, this section establishes project development, resource contributions, indirect cost reimbursement, and tuition remission provisions for non-assistance cooperative agreements.
(a) Project development. REE Agencies provide partial funding to cooperators to support research projects that contribute to REE program objectives and help carry out the REE mission. The project must consist of a project plan and/or statement of work, and a budget as follows:
(1) Project plan. A project plan must be jointly developed by the Agency PI and the cooperator, and be compliant with a REE program requirement. The REE Agency may include program-specific requirements, as applicable. These requirements should be aligned with Agency strategic goals, strategic objectives, or performance goals that are relevant to the program.
(2) Statement of work. A detailed statement of work must be jointly planned, developed, and prepared by the cooperator’s PI and the Agency PI to address the objective(s), approach, statement of mutual interest, performance responsibilities (which may include specific performance goals, indicators, milestones, or expected outcomes, such as outputs, or services performed or public impacts of any of these, with an expected timeline for accomplishment), and any mutual agreements.
(3) Budget. The budget is a funding plan that must be jointly developed by the Agency PI and the Cooperator PI. The approved budget must identify the cooperator resource contributions, both direct and indirect, by budget line item. The cooperator must provide a budget justification/narrative.
(b) Resource contributions. Each party must contribute resources towards the successful completion of the non-assistance cooperative agreement.
(1) Agency resource contributions. The Agency’s contribution is the Federal share as reflected in the award.
(2) Cooperator resource contributions. The Cooperator’s contribution may consist of funds, services, or in-kind contributions, must be no less than 20 percent of the total funding provided by the REE Agency, and cannot fall below 20 percent of the total Federal funding throughout the period of performance. All cooperator contributions must consist of a sufficient amount of itemized direct costs to demonstrate a true stake in the project, as determined by the ADO. All contributions must be documented in the budget and be consistent with the cooperator’s institution classification of costs.
(i) Cooperator resource contributions must meet all of the following criteria:
(A) Are verifiable from the Cooperator’s records;
(B) Are not included as contributions for any other Federal award;
(C) Are necessary and reasonable for accomplishment of project or program objectives;
(D) Are allowable under 2 CFR part 200, subpart E;
(E) Are not paid by the Federal government under another Federal award, except where the Federal statute authorizing a program specifically provides that Federal funds made available for such program can be applied to cooperator resource contributions of other Federal programs;
(F) Conform to other provisions of this Part, as applicable.
(ii) Cooperator’s share of contributions to the project may include:
(A) Unrecovered indirect costs, including indirect costs of the cooperator’s resource contributions. Unrecovered indirect cost means the difference between the amount charged to the award and the amount which could have been charged to the award under the cooperator’s approved negotiated indirect cost rate.
(B) Values for cooperator’s contributions of services and property, established in accordance with 2 CFR 200.434. If the REE Agency authorizes the cooperator to donate buildings or land for construction/facilities acquisition projects or long term use, the value of the donated property for cooperator contributions must be the lesser of paragraph (b)(2)(ii)(B)(1) or (2) of this section (refer to paragraph (b)(2)(ii)(H) of this section for more on the value of donated property):
(1) The value of the remaining life of the property recorded in the cooperator’s accounting records at the time of donation.
(2) The current fair market value. However, when there is sufficient justification, the REE Agency may approve the use of the current fair market value of the donated property, even if it exceeds the value described in paragraph (b)(2)(ii)(B)(1) of this section at the time of donation.
(C) Volunteer services furnished by third-party professional and technical personnel, consultants, and other skilled and unskilled labor, if the service is an integral and necessary part of an approved project or program. Rates for third-party volunteer services must be consistent with those paid for similar work by the cooperator. In those instances in which the required skills are not found in the cooperator, rates must be consistent with those paid for similar work in the labor market in which the cooperator competes for the kind of services involved. In either case, paid fringe benefits that are reasonable, necessary, allocable, and otherwise allowable may be included in the valuation. (Refer to paragraph (b)(2)(ii)(H) of this section for more on third-party in-kind contributions.)
(D) Donated employee services furnished by third-party organization. These services must be valued at the employee’s regular rate of pay plus an amount of fringe benefits that is reasonable, necessary, allocable, and otherwise allowable, and indirect costs at either the third-party organization’s approved federally negotiated indirect cost rate, or, a rate in accordance with 2 CFR 200.414(d), provided these services employ the same skill(s) for which the employee is normally paid. Where donated services are treated as indirect costs, indirect cost rates will separate the value of the donated services so that reimbursement for the donated services will not be made. (Refer to paragraph (b)(2)(ii)(H) of this section for more on third-party in-kind contributions.)
(E) Donated property from third parties, which may include such items as office supplies, laboratory supplies, or workshop and classroom supplies. Value assessed to donated property included in the cooperator contributions must not exceed the fair market value of the property at the time of the donation. (Refer to paragraph (b)(2)(ii)(H) in this section for more on third-party in-kind contributions.)
(F) Third-party-donated equipment, buildings and land. The method used for determining cooperator contributions for which title passes to the cooperator may differ according to the purpose of the Award, if paragraph (b)(2)(ii)(F)(1) or (2) of this section apply:
(1) If the purpose of the Federal award is to assist the non-Federal entity in the acquisition of equipment, buildings or land, the aggregate value of the donated property may be claimed as cooperator resource contributions.
(2) If the purpose of the Award is to support activities that require the use of equipment, buildings or land, normally only depreciation charges for equipment and buildings may be made. However, the fair market value of equipment or other capital assets and fair rental charges for land may be allowed, provided that the REE Agency has approved the charges. See also 2 CFR 200.420.
(G) The value of donated property must be determined in accordance with the usual accounting policies of the cooperator, with the following qualifications:
(1) The value of donated land and buildings must not exceed its fair market value at the time of donation to the Cooperator as established by an independent appraiser (e.g., certified real property appraiser or General Services Administration representative) and certified by a responsible official of the cooperator as required by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, (42 U.S.C. 4601-4655) (Uniform Act) except as provided in the implementing regulations at 49 CFR part 24.
(2) The value of donated equipment must not exceed the fair market value of equipment of the same age and condition at the time of donation.
(3) The value of donated space must not exceed the fair rental value of comparable space as established by an independent appraisal of comparable space and facilities in a privately-owned building in the same locality.
(4) The value of loaned equipment must not exceed its fair rental value.
(H) For third-party in-kind contributions, the fair market value of these goods and services must be documented and to the extent feasible supported by the same methods used internally by the cooperator.
(c) Indirect costs and tuition remission – (1) Reimbursement of indirect costs. Reimbursement of indirect costs is either prohibited or limited as further described in paragraphs (c)(1)(i) through (iii) of this section, and the limit is identified on the approved budget, when applicable.
(i) State cooperative institutions. Payment of indirect costs to State cooperative institutions in connection with a non-assistance cooperative agreement is prohibited, as described in 7 U.S.C. 3319. This prohibition does not apply to funds for international agricultural programs conducted by a State cooperative institution and administered by the Secretary, or to funds provided by a Federal agency for such cooperative program or project through a fund transfer, advance, or reimbursement.
(ii) Non-profit organizations. Payment of indirect costs to non-profit organizations in connection with a non-assistance cooperative agreement is limited to 10 percent of the total direct cost of the Award. (Annual Appropriations Bill for Agriculture and Related agencies, General Provisions.)
(iii) All other cooperating entities. With the exception of paragraphs (c)(1)(i) and (ii) of this section, payment of indirect costs is allowable in connection with a non-assistance cooperative agreement. Reimbursement of indirect costs is limited to the percentage(s) established in the cooperator’s approved negotiated indirect cost rate or, if applicable, the de minimis indirect cost rate.
(2) Tuition remission. Reimbursement of tuition expenses to State cooperative institutions in connection with non-assistance cooperative agreements is prohibited. (7 U.S.C. 3319)
(d) Terms and conditions. The Agency may impose award-specific terms and conditions or require additional assurances when appropriate.
§ 550.110 Certifications and compliance with statutory and national policy requirements; REE conflict of interest policy.
(a) Federal statutory and national policy requirements. The Cooperator must adhere to and comply with, all statutory and national policy requirements of the Federal Government. All signed certifications and assurances must be received by the REE Agency prior to execution of the award.
(b) REE conflict of interest policy. (1) The Cooperator must disclose in writing any potential conflict of interest to the REE awarding agency, prior to award, and when a potential conflict arises during NACA period of performance.
(2) The Cooperator must maintain written standards of conduct covering conflicts of interest and governing the performance of their employees engaged in the selection, award and administration of contracts, and any subawards.
§ 550.111 Project supervision and responsibilities.
(a) The Cooperator is responsible and accountable for the performance and conduct of all its employees assigned to the project. REE Agencies do not have authority to supervise cooperator employees nor engage in the employer/employee relationship.
(b) The Cooperator PI must:
(1) Work jointly with the Agency PI on developing the project statement of work and budget;
(2) Assure that technical project performance and financial status reports are timely submitted in accordance with the terms and conditions of the award;
(3) Advise the Agency PI of any issues that may affect the timely completion of the project (award);
(4) Assure that appropriate acknowledgements of support are included in all publications and audiovisuals, in accordance with § 550.119 of this part;
(5) Assure that inventions are appropriately reported, in accordance with § 550.124 of this part;
(6) Upon request, provide the Agency a project plan for use during external peer reviews; and
(7) When appropriate, work with the Agency PI to prepare findings for peer-reviewed publication in scientific journals, and make presentations/talks to shareholders, etc.
§ 550.112 Administrative supervision.
The Cooperator is responsible for employer/employee relations such as personnel, performance, and time management issues. The Cooperator is solely responsible for the administrative supervision of its employees, even when its employees are working in Agency facilities.
§ 550.113 Rules of the workplace.
Cooperator employees, while engaged in work at REE facilities, will abide by the Agency’s standard operating procedures with regard to the maintenance of laboratory notebooks, dissemination of information, equipment operation standards, facility access, hours of work, Federal agency required training, and the Rules and Regulations Governing Conduct on Federal Property (41 CFR part 102-74, subpart C). Cooperator employees will also undergo any background investigations/clearances, and submit to any health monitoring medical surveillance requirements associated with the REE facility where they will work.
§ 550.114 Availability of funds.
Unless otherwise stated in the agreement, the funding period will begin on the start date of the period of performance specified on the Award Face Sheet.
§ 550.115 Payment.
Reimbursement is the standard method of payment for non-assistance cooperative agreements. All payments to the Cooperator will be made in U.S. dollars by Electronic Funds Transfer (EFT), utilizing the Cooperator’s DUNS number and current SAM registration information. The method of payment will be identified on the Award Face Sheet and includes:
(a) Electronic payment system. The Agency-accepted electronic payment system is the default method of payment.
(b) EFT/Treasury Check. When the payment method identified on the Award Face Sheet is “EFT/Treasury Check,” the Cooperator must submit invoices to the Agency on the OMB-approved SF-270, “Request for Advance or Reimbursement.” In addition to the SF-270, the Cooperator must provide:
(1) Total dollar amount requested for reimbursement itemized by approved budget categories, including the indirect cost rate for the award, when applicable.
(2) Name, phone number, email address, and the Cooperator’s financial contact, should the ADO or Agency PI have any invoice questions.
§ 550.116 Prior approvals.
(a) Approval. With regard to 2 CFR 200.308(d)(4), prior documented approval from the REE Agency ADO is required for all prior approval requirements described in paragraph 2 CFR 200.308(d)(2).
(b) No cost extensions. With regard to 2 CFR 200.308(d)(2), all time extensions will only be approved by an amendment to the award. The Cooperator shall prepare and submit a written request to the ADO (which must be received no later than 10 days prior to the expiration date of the award). The request must contain, at a minimum, the following information:
(1) The length of additional time required to complete project objectives and a justification for the extension;
(2) A summary of progress to date (a copy of the most recent progress report is acceptable provided the information is current); and,
(3) Signature of the Authorized Representative and the Principal Investigator requesting the extension. Any request received by the ADO that does not meet this requirement will be returned for the necessary signature(s).
(c) Budget revisions. Budget revisions among direct cost categories or programs, functions, and activities for awards in which the Federal share of the project exceeds the Simplified Acquisition Threshold and the cumulative amount of such transfers exceeds or is expected to exceed 10 percent of the total budget as last approved by the REE Agency requires prior documented approval.
(d) Advertising. See § 550.121 of this part.
§ 550.117 Program income.
(a) Use of program income. (1) Program income earned must be added to the non-assistance cooperative agreement, unless otherwise specified in the award.
(2) When specified in the award, program income can be used towards fulfilling the cooperator’s resource contributions for the same award.
(b) Disclosing program income. The Cooperator must disclose program income in financial reports. Refer to § 550.123 of this part.
(c) Program income closeout. The REE Agency and the Cooperator will negotiate appropriate uses of income earned balances, after the period of performance, as part of the agreement closeout process.
§ 550.118 Peer review.
Upon request of the REE Agency, Cooperators may be required to provide documentation in support of peer review activities, and Cooperator’s personnel may be requested to participate in peer review forums to assist the REE Agency with their reviews.
§ 550.119 Publications and audiovisuals.
In addition to 2 CFR 415.2, “Acknowledgement of USDA Support on Publications and Audiovisuals,” the Cooperator must adhere to the following:
(a) The REE Agency acknowledgment of support must read: “This material is based upon work supported by the Department of Agriculture, (type Agency name) under Agreement No. (type the Federal Award Identification Number (FAIN) here).”
(b) All material described in 2 CFR 415.2 must also contain the following disclaimer unless the publication or audiovisual is formally cleared by the REE Agency: “Any opinions, findings, conclusion, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the Department of Agriculture.”
(c) Any public or technical information related to work carried out under a non-assistance cooperative agreement must be submitted by the developing party to the other for advice and comment. Information released to the public must describe the contributions of both parties to the work effort. In the event of a dispute, a separate publication or audiovisual may be made with effective statements of acknowledgment and disclaimer.
(d) The Cooperator must submit to the Agency PI copies of all final publications and audiovisuals resulting from the research conducted under the non-assistance cooperative agreement.
(e) REE Agencies and the Federal Government shall enjoy a royalty-free, nonexclusive, and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, for Federal purposes any materials developed in conjunction with a non-assistance cooperative agreement or contract under such a cooperative agreement.
§ 550.120 Press releases.
Press releases or other forms of public notification for a broad public audience will be submitted to the REE Agency for review, prior to release to the public. The REE Agency will be given the opportunity to review, in advance, all written press releases and any other written information (including web content postings) to be released to the public by the Cooperator, and require changes as deemed necessary, if the material mentions by name the REE Agency, or the USDA, or any REE or USDA employee or research unit or location.
§ 550.121 Advertising.
The Cooperator will not refer in any manner to the USDA or any REE Agency in connection with the use of the results of the award, without prior specific written authorization by the REE Agency. Information obtained as a result of the award will be made available to the public in printed or other forms by the REE Agency at its discretion. The Cooperator will be given due credit for its cooperation in the project. Prior approval is required.
§ 550.122 Vesting of title.
Title to equipment and supplies and other tangible personal property will vest in the Cooperator as described in 2 CFR 200.313 and 200.314, unless otherwise specified in the award. (7 U.S.C. 3318(d))
§ 550.123 Financial reporting.
The Cooperator must submit financial reports at the interval required by the REE Agency, as identified on the Award Face Sheet, and may submit financial reports to the ADO electronically (refer to 2 CFR 200.335 Methods for collection, transmission, and storage of information).
(a) The OMB-approved SF-425, “Federal Financial Report,” may be used to report the financial status of an award; however, a financial report must contain an itemization of actual dollar amounts expended on the project during the reporting period (in line with the approved budget), and cumulative totals expended for each budget category from the start date of the award.
(b) Financial reporting due dates:
(1) Quarterly and semi-annual reports are due no later than 30 calendar days after the reporting period.
(2) Annual reports are due no later than 90 days following the end of the award anniversary date (i.e., one year following the month and day when the period of performance begins, and each year thereafter up until a final report is required).
(c) Final financial report:
(1) Requests for extensions must be submitted to the ADO.
(2) Regardless of Agency-provided extensions for submission of the final financial report, funds will not be available for any drawdowns/payments that exceed statutory limits, as well as any expiring appropriations.
§ 550.124 Technical and property reporting requirements.
(a) Technical performance report. The Cooperator must submit technical performance reports at the interval required by the REE Agency, as identified on the Award Face Sheet, and may submit performance reports to the REE Agency electronically.
(1) The performance report must follow the format of the Government wide Research Performance Progress Report, and must include the information described in 2 CFR 200.328(b)(2)(i) through (iii). (2) The final performance report covers the entire period of performance of the award, and must describe progress made during the entire timeframe of the project.
(b) Intellectual property reporting. Reporting intellectual property resulting from a REE Agency award will be carried out through Interagency Edison (iEdison). The non-Federal entity must submit Invention Reports and Utilization Reports, including other relevant reports, at the iEdison web interface: www.iedison.gov.
(c) Tangible personal property report. Upon termination or expiration of the award, the non-Federal entity must identify personal property/equipment purchased with any Federal funds under the award on the OMB-approved SF-428, “Tangible Personal Property Report and Instructions.”
PARTS 551-599 [RESERVED]
CHAPTER VI – NATURAL RESOURCES CONSERVATION SERVICE, DEPARTMENT OF AGRICULTURE
SUBCHAPTER A – GENERAL
PART 600 – ORGANIZATION
§ 600.1 General.
(a) The Natural Resources Conservation Service (NRCS) was authorized by the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 (Pub. L. 103-354, 7 U.S.C. 6901 note) and established by Secretary’s Memorandum 1010-1 (2.b.6), Reorganization of the Department of Agriculture, to provide national leadership in the conservation, development, and productive use of the Nation’s natural resources. Such leadership encompasses the conservation of soil, water, air, plant, and animal resources with consideration of the many human (economic and sociological) interactions. NRCS is the Federal agency that works with landowners on private lands to help them conserve their natural resources. NRCS employees are highly skilled in many scientific and technical specialties, including soil science, soil conservation, agronomy, biology, agroecology, range conservation, forestry, engineering, geology, hydrology, wetlands science, cultural resources, and economics. NRCS was formerly the Soil Conservation Service (SCS) which was established by the Soil Conservation Act of 1935 (Pub. L. 74-46, 49 Stat. 163 (16 U.S.C. 590 (a-f))). NRCS has responsibility for three major areas:
(1) Soil and water conservation;
(2) Natural resource surveys including soil surveys, resources inventory, snow surveys, and water supply forecasting; and
(3) Community resource protection and management including watershed projects, river basin studies and investigations, resource conservation and development areas, land evaluation and site assessment, and emergency watershed protection. In addition, NRCS has leadership for the Wetlands Reserve Program, Environmental Quality Incentives Program, Grazing Lands Conservation Initiative, Farmland Protection Program, Wildlife Habitat Incentives Program, Forestry Incentives Program, and Conservation Farm Option. NRCS provides technical support for the Conservation Reserve Program.
(b) The NRCS organization consists of a National Headquarters located in Washington, DC; six regional offices; 50 state offices and two equivalent offices in the Caribbean Area and the U.S. Trust Territories of the Pacific Basin Area; approximately 2,500 field offices and 300 specialized offices; 26 plant materials centers; 17 major land resource area soil survey offices; nine national centers; and seven national institutes. A Chief who reports to the USDA Under Secretary for Natural Resources and Environment heads NRCS.
§ 600.2 National headquarters.
(a) Chief. The Chief, with assistance of the Associate Chief, is responsible for administering a coordinated national program of natural resource conservation; planning, directing, and coordinating all program, technical, and administrative activities of NRCS; developing policies and procedures; correlating NRCS conservation programs with other agencies; accepting departmental leadership for programs for other activities assigned by the Secretary of Agriculture; and serving as Equal Employment Opportunity Officer for NRCS.
(b) Deputy chiefs. Five deputy chiefs assist the Chief as follows:
(1) Deputy Chief for Management. The Deputy Chief for Management is responsible for policies, guidelines, and standards for management services, human resources management, financial management, information technology, administrative support (providing a coordinated administrative management program for National Headquarters activities), NRCS outreach, training, and correspondence management. This deputy chief also is responsible for the activities of three national centers: business management, information technology, and employee development.
(2) Deputy Chief for Strategic Planning and Accountability. The Deputy Chief for Strategic Planning and Accountability is responsible for policies, guidelines, and standards for strategic and performance planning, budget planning and analysis, and operations management and oversight.
(3) Deputy Chief for Programs. The Deputy Chief for Programs is responsible for policies, guidelines, and standards for conservation operations, resource conservation and community development, watersheds and wetlands, international programs, conservation compliance activities, conservation programs funded by the Commodity Credit Corporation, and animal husbandry and clean water programs.
(4) Deputy Chief for Soil Survey and Resource Assessment. The Deputy Chief for Soil Survey and Resource Assessment is responsible for policies, guidelines, and standards for NRCS technical activities, and provides leadership for soils, resource inventory, and resource assessment. This deputy chief also is responsible for the activities of two national centers (soil survey and cartography and geospatial) and two national institutes (soil quality and natural resources inventory and analysis).
(5) Deputy Chief for Science and Technology. The Deputy Chief for Science and Technology is responsible for policies, guidelines, and standards for the agency, and provides leadership for resource economics and social sciences, conservation engineering, and ecological sciences. This deputy chief also is responsible for the activities of four national centers (water and climate, water management, soil mechanics, and plant data) and five national institutes (grazing lands technology, social sciences, watershed science, wetlands science, and wildlife habitat management). This deputy chief, working closely with the deputy chiefs for Management and Soil Survey and Resource Assessment, provides overall direction for the National Science and Technology Consortium.
(c) National Science and Technology Consortium. The consortium consists of three divisions, four centers, five technical institutes, and several cooperating scientists under the Deputy Chief for Science and Technology; two divisions, two centers, and two technical institutes under the Deputy Chief for Soil Survey and Resource Assessment; and one division and three centers under the Deputy Chief for Management.
(1) Centers. The nine centers provide specific products and services that maintain and enhance the technical quality of the agency. The centers are: water and climate, water management, soil mechanics, plant data, soil survey, cartography and geospatial, information technology, business management, and employee development.
(2) Institutes. The seven institutes are: soil quality, natural resources inventory and analysis, grazing lands technology, social sciences, watershed science, wetlands science, and wildlife habitat management. The institutes provide training; develop technical materials; and acquire, develop, and transfer needed technology in special emphasis areas so field employees can better serve their customers. The institutes often establish partnerships with other Federal agencies, universities, and public and private organizations.
(3) Cooperating Scientists. Cooperating scientists work in the areas of soil erosion and sedimentation, air quality, and agroforestry. These scientists are located at various universities and research centers.
(d) Civil Rights. The Civil Rights staffs provide coordination, assistance, and recommendations to the Chief on civil rights employment and program compliance issues.
(e) Legislative Affairs. The Legislative Affairs Staff provides coordination and assistance to the Chief on legislative affairs issues and activities.
(f) Conservation Communications. The Conservation Communications Staff is responsible for communications, volunteer programs, conservation education, and public affairs activities.
(g) Strategic Natural Resource Issues. The Strategic Natural Resource Issues Staff is responsible for coordinating priority strategic issues as determined by the Chief.
§ 600.3 Regional offices.
Each regional office is under the direction and supervision of a regional conservationist. Regional offices are responsible for
(1) Providing agency leadership, guidance, coordination, and partnering for solutions to regional resource issues;
(2) Program implementation, consistency, and accountability;
(3) Region-wide strategic planning, performance measurement, and operations management;
(4) Administrative operations and support;
(5) Fund integrity and accountability;
(6) Technical quality of work; and
(7) All NRCS activities in the region. Regional offices are located in Beltsville, Maryland; Atlanta, Georgia; Fort Worth, Texas; Madison, Wisconsin; Lincoln, Nebraska; and Sacramento, California.
§ 600.4 State offices.
Each office is under the direction and supervision of a State conservationist. Each State conservationist is responsible for NRCS programs in a State. The Pacific Basin Area Office, under the direction and supervision of a director, serves the U.S. Trust Territories in that area. The Caribbean Area Office, under the direction and supervision of a director, serves the Commonwealth of Puerto Rico and the U.S. Virgin Islands. Directors of the Pacific Basin and Caribbean areas have the same responsibility and authority as a State conservationist. All references to State conservationists in this chapter include the directors of the Pacific Basin and Caribbean areas.
§ 600.5 Area offices.
Each area office is under the direction and supervision of an area conservationist or assistant State conservationist for field operations who is responsible for NRCS activities in the geographical area served by the area office. Usually the geographical area includes multiple field offices and counties. Many area offices now consist of teams working on a watershed or other geopolitical basis.
§ 600.6 Field offices.
Each field office is under the direction and supervision of a district conservationist who is responsible for NRCS activities in the geographical area served by the field office. Usually the geographical area of a field office includes one or more conservation districts and one or more counties. Field offices are generally collocated with other USDA agencies in USDA Service Centers.
§ 600.7 Specialized field offices.
Other field offices serve specialized activities, such as watershed protection and flood reduction projects, construction projects, resource conservation and development areas, and soil survey activities. State conservationists designate direction and supervision of these offices.
§ 600.8 Plant materials centers.
Plant materials centers (PMC) assemble and test plant species for conservation uses. Usually a PMC serves two or more States, and is under the jurisdiction of the State conservationist where the center is located. Each PMC is directed and supervised by a manager who is responsible to a State office specialist/manager as designated by the State conservationist.
§ 600.9 Major land resource area soil survey offices.
The United States is divided into 17 major land resource areas (MLRA) for the purpose of soil survey production. Major land resource area soil survey offices (MO) provide the technical leadership, coordination, and quality assurance for all soil survey project activities within the respective MLRA. Each MO serves two or more States (except for the MO in Alaska), and is under the jurisdiction of the State conservationist where the office is located. Each MO is directed and supervised by a leader who is designated by the State conservationist.
PART 601 – FUNCTIONS
§ 601.1 Functions assigned.
The Natural Resources Conservation Service (NRCS) is the Federal agency that works with private landowners to conserve their natural resources. NRCS employees help land users and communities approach conservation planning and implementation with an understanding of how natural resources relate to each other and to people – and how human activities affect those resources. The agency emphasizes voluntary, science-based assistance, partnerships, and cooperative problem solving at the community level. The mission of NRCS is to work on the Nation’s non-Federal lands to conserve, improve, and sustain natural resources. The following functions support the mission.
(a) NRCS facilitates and provides conservation technical assistance at the local level that helps people assess their natural resource conditions and needs, set goals, identify programs and other resources to address those needs, develop proposals and recommendations, implement solutions, and measure their success. The agency’s role is to assist with:
(1) Resource inventories,
(2) Resource assessments,
(3) Planning assistance, and/or
(4) Technical assistance.
(b) NRCS provides technical assistance through local conservation districts to land users, communities, watershed groups, Federal and State agencies, other partners, and customers.
(c) NRCS provides assistance on a voluntary basis.
(d) The agency’s work focuses on soil, water, air, plant, and animal conservation including erosion reduction, water quality improvement, wetland restoration and protection, fish and wildlife habitat improvement, range management, stream restoration, water management, and other natural resource issues.
(e) Through the conservation operations program, NRCS maintains a cadre of conservationists and interdisciplinary technical experts who provide landowners with advice and recommendations. Science based procedures and techniques are based on new knowledge and research provided by the Agricultural Research Service and others. NRCS developed and maintains a system of directives – including manuals, handbooks, and technical references – to institutionalize new methods, procedures, and standards used to deliver technical assistance at the field level.
(f) NRCS has general responsibility for administration of the following programs:
(1) Conservation operations, authorized by the Soil Conservation Act of 1935 and the Soil and Water Resources Conservation Act of 1977. Activities include:
(i) Conservation technical assistance to land users, communities, units of State and local government, and other Federal agencies in planning and implementing natural resource solutions to reduce erosion, improve soil and water quantity and quality, improve and conserve wetlands, enhance fish and wildlife habitat, improve air quality, improve pasture and range conditions, reduce upstream flooding, and improve woodlands. Assistance is also provided to implement the highly erodible land (HEL) and wetland conservation (Swampbuster) provisions and – on a reimbursable basis – the Wetlands Reserve Program (WRP) and Conservation Reserve Program (CRP) in the 1985 Food Security Act, as amended by the Food, Agriculture, Conservation and Trade Act of 1990 and Federal Agriculture Improvement and Reform Act of 1996. NRCS technical field staff make HEL and wetland determinations and assist land users to develop and implement conservation plans needed to ensure compliance with the law. NRCS is also the lead Federal agency for delineating wetlands on agricultural lands for purposes of implementing both the provisions of the Food Security Act and Section 404 of the Clean Water Act.
(ii) Soil surveys that provide the public with local information on the uses and capabilities of their soil resource. Soil surveys are based on scientific analysis and classification of the soils and are used to determine land capabilities and conservation treatment needs. Surveys are conducted cooperatively with other Federal agencies, land grant universities, State agencies, and local units of government. NRCS is the world leader in soil classification and soil mapping, and is expanding into soil quality.
(iii) Snow survey and water supply forecasts that provide western States and Alaska with vital information and forecasts of seasonable variable water supplies. NRCS field staff in cooperation with partnering organizations manually collect data from 850 remote high mountain sites. Data is electronically collected from an additional 600 SNOTEL (automated snowpack telemetry network) sites. In cooperation with the National Weather Service, the data is assembled and analyzed. Then, NRCS staff develop seasonal water supply forecasts.
(iv) Plant Material Centers that assemble, test, and encourage increased plant propagation and usefulness of plant species for biomass production, carbon sequestration, erosion reduction, wetland restoration, water quality improvement, streambank and riparian area protection, coastal dune stabilization, and to meet other special conservation treatment needs. The work is carried out cooperatively with State and Federal agencies, private organizations, commercial businesses, and seed and nursery associations. After species are proven, they are released to the private sector for commercial production.
(v) National Resources Inventory (NRI) that is a statistically-based survey designed and implemented using scientific principles to assess conditions and trends of soil, water, and related resources on nonfederal lands in the United States. The NRI captures data on land cover and use, soil erosion, prime farmland, wetlands, habitat diversity, selected conservation practices, and related attributes at thousands of scientifically selected sample sites in all 50 states, Puerto Rico, the U.S. Virgin Islands, and some Pacific Basin locations.
(2) Conservation programs in the Federal Agriculture Improvement and Reform Act of 1996, most of which are funded by the Commodity Credit Corporation (CCC). NRCS provides leadership and technical assistance for the following programs:
(i) Environmental Quality Incentives Program (EQIP). EQIP provides a single, voluntary conservation program for farmers and ranchers who face serious threats to soil, water, and related natural resources. Nationally, it provides technical, financial, and educational assistance, half of it targeted to livestock-related natural resource problems and half to more general conservation priorities.
(ii) Wetlands Reserve Program (WRP). WRP is a voluntary program to restore and protect wetlands on private property. It provides an opportunity for landowners to receive financial incentives to restore wetlands in exchange for retiring marginal agricultural land.
(iii) Wildlife Habitat Incentives Program (WHIP). WHIP is a voluntary program for people who want to develop and improve wildlife habitat on private lands. It provides both technical assistance and cost sharing to help establish and improve fish and wildlife habitat.
(iv) Farmland Protection Program (FPP). This program provides funds to help purchase development rights to keep productive farmland in agricultural use. Working through existing programs, USDA joins with State, tribal, or local governments to acquire voluntary conservation easements or other interests from landowners.
(v) Forestry Incentives Program (FIP). FIP supports good forest management practices on privately owned, non-industrial forest lands nationwide. FIP is designed to benefit the environment while meeting future demands for wood products. Although not funded by CCC, Section 373 of the Federal Agriculture Improvement and Reform Act of 1996 extended the program under discretionary appropriations.
(3) Resource Conservation and Development (RC&D) Program, authorized by Section 102 of the Flood and Agriculture Act of 1962 (Pub. L. 87-702) and Sections 1528-1538 of the Agriculture and Food Act of 1981 (Pub. L. 97-98). This program is initiated and directed at the local level by volunteers who involve multiple communities, various units of government, municipalities, and grassroots organizations. RC&D is a catalyst for civic-oriented groups to share knowledge and resources in a collective attempt to solve common problems. The program offers aid in balancing the environmental, economic, and social needs of an area.
(4) Rural Abandoned Mine Program (RAMP) and other responsibilities assigned under the Surface Mining Control and Reclamation Act of 1977 (Pub. L. 95-87). Under RAMP, NRCS provides technical and financial assistance to landowners to reclaim certain abandoned coal-mined lands. This assistance can be used to reclaim these lands for approved uses, which include pasture, range, woodland, cropland, noncommercial recreation, and wildlife habitat. The program’s first priority is to protect public health, welfare, safety, and property from hazards caused by past surface coal mining or by surface effects of deep mining.
(5) Watershed surveys and planning, authorized by the Watershed Protection and Flood Prevention Act (Pub. L. 83-566, Section 6 (16 U.S.C. 1001-1008)). The 1996 appropriations act combined the Small Watershed Planning and the River Basin Surveys and Investigations programs into a new program called the Watershed Surveys and Planning Program. The program involves cooperation with other Federal, State, and local agencies to conduct watershed planning, river basin surveys and investigations, flood hazard analysis, and floodplain management assistance, which aid in the development of coordinated water resource programs, including the development of guiding principles and procedures.
(6) Watershed and flood prevention operations include several activities. Watershed operations are authorized by the Flood Control Act of 1944 (Public Law 78-534) and the Watershed Protection and Flood Prevention Act of 1954 (Public Law 87-566) and amendments; both of which are addressed by 7 CFR 622. Since 1998, the appropriations act for the Watershed Protection and Flood Prevention Act (Public Law 83-566) has included funds, not to exceed a specified amount, that may be used for Public Law 78-534 projects.
(i) Publc Law 83-566 and Public Law 78-534, jointly called the Small Watershed Program, authorize the Secretary of Agriculture to cooperate with State and local agencies to plan and carry out works of improvement for flood prevention; for the conservation, development, utilization, and disposal of water; and for the conservation and proper use of land in watershed or sub-watershed areas. Under Public Law 83-566, these areas shall not exceed 250,000 acres. There is no acreage limitation under Public Law 78-534.
(ii) The Small Watershed Program provides for cooperation with State and other public agencies (called project sponsors) in the installation of planned works of improvement and land treatment measures in authorized watershed projects. Eligible measures include flood prevention, water conservation, recreation, agricultural water management, floodplain easements, municipal and industrial water, and rural water supply.
(7) Emergency Watershed Protection (EWP) Program, authorized by Section 216 of Public Law 81-516, 33 U.S.C. 701b-1, and Section 403 of the Agriculture Credit Act of 1978 (Public Law 95-334, 16 U.S.C. 2203), as amended by Section 382 of the Federal Agriculture Improvement and Reform Act of 1996 (Public Law 104-127, 110 Stat. 888, 1016). EWP provides assistance to reduce an imminent threat to life and property caused by a sudden impairment of a watershed from a natural disaster. Emergency work includes such measures as removing debris from streams, stabilizing streambanks, repairing levees, critical area stabilization, and purchasing floodplain easements. Technical and financial assistance is available to sponsoring local organizations (units of government, Indian tribes and tribal organizations, and organizations formed by State law) for this disaster recovery work. Sponsors are required to provide the local share of the costs; obtain real property rights, water rights, and permits; and do any needed operation and maintenance.
§ 601.2 Functions reserved to the Secretary of Agriculture.
(a) Designation of new Resource Conservation and Development (RC&D) areas. Once designated, these areas may receive RC&D Program assistance from NRCS.
(b) Administration of the Soil and Water Resources Conservation Act of 1977 (Public Law 95-192) to conduct an appraisal and develop a national conservation program every five years.
§ 601.3 Defense responsibilities.
In the event of nuclear attack, NRCS is responsible for providing:
(a) Technical guidance, based upon results of radiological monitoring and the extent of radiological contamination to farmers, ranchers, and others relating to:
(1) The selection and use of land for agricultural production.
(2) The harvesting of crops.
(3) The use of crops stored on the farm.
(4) The use, conservation, disposal, and control of water to insure adequate usable water for agricultural purposes and to prevent floods.
(5) The safety of livestock.
(b) Basic soil information, land use guides, and onsite technical assistance in selecting land for production and in applying practices to increase production of food and fiber with maximum efficiency.
SUBCHAPTER B – CONSERVATION OPERATIONS
PART 610 – TECHNICAL ASSISTANCE
Subpart A – Conservation Operations
§ 610.1 Purpose.
This subpart sets forth Natural Resource Conservation Service (NRCS) policies and procedures for furnishing technical assistance in conservation operations.
§ 610.2 Scope.
(a) Conservation operations, including technical assistance, is the basic soil and water conservation program of NRCS. This program is designed to:
(1) Reduce soil losses from erosion;
(2) Help solve soil, water, and agricultural waste management problems;
(3) Bring about adjustments in land use as needed;
(4) Reduce damage caused by excess water and sedimentation;
(5) Enhance the quality of fish and wildlife habitat; and
(6) Improve all agricultural lands, including cropland, forestland, and grazing lands that include pastureland, rangeland, and grazed forestland so that the long-term sustainability of the resource base is achieved.
(b) The Natural Resources Conservation Service is USDA’s technical agency for providing assistance to private landowners, conservation districts, and other organizations in planning and carrying out their conservation activities and programs. NRCS works with individuals, groups, and units of government to help them plan and carry out conservation decisions to meet their objectives.
§ 610.3 Assistance through conservation districts.
(a) Technical assistance is provided through and in cooperation with conservation districts in the 50 States, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands. These districts, formed under authority of State laws, are operated and controlled by local citizens. They provide the leadership and the program needed to meet the conservation objectives of the district.
(b) NRCS furnishes technical assistance to conservation districts as specified in memorandums of understanding. Soil conservationists assigned to conservation districts work directly with land users and others according to the program needs and the priorities established by the conservation districts.
(c) The practical experience of land users is combined with the scientific knowledge and skills of professional conservationists to plan and carry out locally formulated conservation programs.
(d) When requested, technical assistance may be provided to owners, operators, or groups using land that is under the jurisdiction of the United States Department of the Interior if such land is included in a conservation district or if assistance is in accordance with memorandums of understanding identifying the coordination of agency activities.
§ 610.4 Technical assistance furnished.
The Natural Resources Conservation Service provides technical assistance to land users and others who are responsible for making decisions and setting policies that influence land use, conservation treatment, and resource management. Technical assistance furnished by NRCS consists of program assistance, planning assistance, application of conservation practices, and assistance in the technical phases of USDA cost-share programs.
(a) Program assistance is provided to conservation districts and other organizations concerned with the conservation of soil, water, plant, and wildlife resources. This assistance includes providing resource inventory data and identifying conservation problems and needs in order for districts to develop long-range soil and water conservation programs. Individuals, groups, and organizations requesting NRCS assistance through conservation districts include:
(1) Farmers, ranchers, and other land users concerned with the conservation of land and water resources.
(2) County and other local government units such as park authorities, departments of public works, planning, zoning (rural, urban, and flood plain), school, and institution boards, highway departments, and tax assessors.
(3) Citizen groups, youth groups, recreation groups, and garden clubs.
(4) State and local units of government (highway, health, recreation, water resources, and regional planning) involved in establishing public policy regarding the use of resources.
(5) Federal departments and agencies such as Defense, Housing and Urban Development, Public Roads, Health and Human Services; and Interior.
(6) Professional consultants who provide services such as engineering, planning, environmental assessment, tax assessment, and forest management.
(b) Planning assistance includes evaluation of soil, water, vegetation, and other resource data needed for making land use, environmental and conservation treatment decisions. NRCS helps land users make conservation plans for farms, ranches, and other land units. This help includes onsite planning assistance in making conservation plans. The plans are based on a soil survey and interpretations for the intended land uses and conservation treatment. Plans may also include other inventories of soil, water, plant, and related resources needed in the planning process. Information about the responses of each kind of soil and the conservation practices and resource management needed for different land uses is provided. The land user’s decisions recorded in the plan are based on his conservation objectives. Conservation plans provide for the orderly installation of conservation practices. Conservation plans reflect changing conditions.
(c) Application assistance is provided to help land users apply and maintain planned conservation work. NRCS assistance for applying the conservation practices in the plan may include:
(1) Designing, constructing, and maintaining conservation practices;
(2) Selecting management alternatives and cultural practices needed to establish and maintain vegetation; and
(3) Other conservation practices needed to protect land and water resources.
(d) The Natural Resources Conservation Service assists in carrying out certain phases of USDA soil and water conservation cost-share programs. NRCS assists individual program participants with conservation plans needed for long-term cost-share agreements. NRCS is assigned responsibility by the Secretary of Agriculture for technical phases of applying conservation practices on the land. This assignment includes:
(1) Determining what practices are needed and feasible to install,
(2) Selecting sites and planning and designing practices,
(3) Providing assistance for installing practices, and
(4) Certifying that the work done is in accordance with NRCS standards and specifications.
§ 610.5 Interdisciplinary assistance.
Technical assistance is based on the principle that soil, water, plant, and related resources are interdependent and must be managed accordingly. Soil conservationists integrate the various technical fields in providing for the conservation of land and water resources. Staff scientists and specialists develop conservation standards, prepare necessary specifications, provide training, and review work performance, NRCS uses consultants for conservation problems that require special expertise.
Subpart B – Soil Erosion Prediction Equations
§ 610.11 Purpose and scope.
This subpart sets forth the equations and rules for utilizing the equations that are used by the Natural Resources Conservation Service (NRCS) to predict soil erosion due to water and wind. Section 301 of the Federal Agriculture Improvement and Reform Act of 1996 (FAIRA) and the Food Security Act, as amended, 16 U.S.C. 3801-3813 specified that the Secretary would publish the universal soil loss equation (USLE) and wind erosion equation (WEQ) used by the Department within 60 days of the enactment of FAIRA. This subpart sets forth the equations, definition of factors, and provides the rules under which NRCS will utilize the USLE, the revised universal soil loss equation (RUSLE), and the WEQ.
§ 610.12 Equations for predicting soil loss due to water erosion.
(a) The equation for predicting soil loss due to erosion for both the USLE and the RUSLE is A = R × K × LS × C × P. (For further information about USLE see the U.S. Department of Agriculture Handbook 537, “Predicting Rainfall Erosion Losses – A Guide to Conservation Planning,” dated 1978. Copies of this document are available from the Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 20013. For further information about RUSLE see the U.S. Department of Agriculture Handbook 703, “Predicting Soil Erosion by Water: A Guide to Conservation Planning with the Revised Universal Soil Loss Equation (RUSLE).” Copies may be purchased from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.)
(b) The factors in the USLE equation are:
(1) A is the estimation of average annual soil loss in tons per acre caused by sheet and rill erosion.
(2) R is the rainfall erosivity factor. Accounts for the energy and intensity of rainstorms.
(3) K is the soil erodibility factor. Measures the susceptibility of a soil to erode under a standard condition.
(4) LS is the slope length and steepness factor. Accounts for the effect of length and steepness of slope on erosion.
(5) C is the cover and management factor. Estimates the soil loss ratio for each of 4 or 5 crop stage periods throughout the year, accounting for the combined effect of all the interrelated cover and management variables.
(6) P is the support practice factor. Accounts for the effect of conservation support practices, such as contouring, contour stripcropping, and terraces on soil erosion.
(c) The factors in the RUSLE equation are defined as follows:
(1) A is the estimation of average annual soil loss in tons per acre caused by sheet and rill erosion.
(2) R is the rainfall erosivity factor. Accounts for the energy and intensity of rainstorms.
(3) K is the soil erodibility factor. Measures the susceptibility of a soil to erode under a standard condition and adjusts it bi-monthly for the effects of freezing and thawing, and soil moisture.
(4) LS is the slope length and steepness factor. Accounts for the effect of length and steepness of slope on erosion based on 4 tables reflecting the relationship of rill to interrill erosion.
(5) C is the cover and management factor. Estimates the soil loss ratio at one-half month intervals throughout the year, accounting for the individual effects of prior land use, crop canopy, surface cover, surface roughness, and soil moisture.
(6) P is the support practice factor. Accounts for the effect of conservation support practices, such as cross-slope farming, stripcropping, buffer strips, and terraces on soil erosion.
§ 610.13 Equations for predicting soil loss due to wind erosion.
(a) The equation for predicting soil loss due to wind in the Wind Erosion Equation (WEQ) is E = f(IKCLV). (For further information on WEQ see the paper by N.P. Woodruff and F.H. Siddaway, 1965. “A Wind Erosion Equation,” Soil Science Society of America Proceedings, Vol. 29, No. 5, pages 602-608, which is available from the American Society of Agronomy, Madison, Wisconsin. In addition, the use of the WEQ in NRCS is explained in the Natural Resources Conservation Service (NRCS) National Agronomy Manual, 190-V-NAM, second ed., Part 502, March, 1988, which is available from the NRCS, P.O. Box 2890, Washington, DC 20013.)
(b) [Reserved]
(c) The factors in the WEQ equation are defined as follows:
(1) E is the estimation of the average annual soil loss in tons per acre.
(2) f indicates the equation includes functional relationships that are not straight-line mathematical calculations.
(3) I is the soil erodibility index. It is the potential for soil loss from a wide, level, unsheltered, isolated field with a bare, smooth, loose and uncrusted surface. Soil erodibility is based on soil surface texture, calcium carbonate content, and percent day.
(4) K is the ridge roughness factor. It is a measure of the effect of ridges formed by tillage and planting implements on wind erosion. The ridge roughness is based on ridge spacing, height, and erosive wind directions in relation to the ridge direction
(5) C is the climatic factor. It is a measure of the erosive potential of the wind speed and surface moisture at a given location compared with the same factors at Garden City, Kansas. The annual climatic factor at Garden City is arbitrarily set at 100. All climatic factor values are expressed as a percentage of that at Garden City.
(6) L is the unsheltered distance. It is the unsheltered distance across an erodible field, measured along the prevailing wind erosion direction. This distance is measured beginning at a stable border on the upwind side and continuing downward to the nonerodible or stable area, or to the downwind edge of the area being evaluated.
(7) V is the vegetative cover factor. It accounts for the kind, amount, and orientation of growing plants or plant residue on the soil surface.
§ 610.14 Use of USLE, RUSLE, and WEQ.
(a) All Highly Erodible Land (HEL) determinations are based on the formulas set forth in 7 CFR § 12.21 using some of the factors from the USLE and WEQ and the factor values that were contained in the local Field Office Technical Guide (FOTG) as of January 1, 1990. In addition, this includes the soil loss tolerance values used in those formulas for determining HEL. The soil loss tolerance value is used as one of the criteria for planning soil conservation systems. These values are available in the FOTG in the local field office of the Natural Resources Conservation Service.
(b) RUSLE will be used to:
(1)(i) Evaluate the soil loss estimates of conservation systems contained in the FOTG.
(ii) Evaluate the soil loss estimates of systems actually applied, where those systems were applied differently than specified in the conservation plan adopted by the producer or where a conservation plan was not developed, in determining whether a producer has complied with the HEL conservation provisions of the Food Security Act of 1985, as amended, 16 U.S.C. 3801 et seq., set forth in 7 CFR part 12; and
(2) Develop new or revised conservation plans.
Subpart C – State Technical Committees
§ 610.21 Purpose and scope.
This subpart sets forth the procedures for establishing and using the advice of State Technical Committees. The Natural Resources Conservation Service (NRCS) will establish in each State a Technical Committee to assist in making recommendations relating to the implementation and technical aspects of natural resource conservation activities and programs. The Department of Agriculture (USDA) will use State Technical Committees in an advisory capacity in the administration of certain conservation programs and initiatives. Pursuant to 16 U.S.C. 3862(d), these State Technical Committees and Local Working Groups are exempt from the provisions of the Federal Advisory Committee Act (5 U.S.C. App. 2).
§ 610.22 State Technical Committee membership.
(a) State Technical Committees will include agricultural producers, nonindustrial private forest land owners, and other professionals who represent a variety of disciplines in soil, water, wetlands, plant, and wildlife sciences. The State Conservationist in each State will serve as chairperson. The State Technical Committee for each State will include representatives from among the following, if willing to serve:
(1) NRCS, USDA;
(2) Farm Service Agency, USDA;
(3) State Farm Service Agency Committee, USDA;
(4) Forest Service, USDA;
(5) National Institute of Food and Agriculture, USDA;
(6) Each of the Federally recognized Indian Tribes in the State;
(7) State departments and agencies within the State, including the:
(i) Fish and wildlife agency;
(ii) Forestry agency;
(iii) Water resources agency;
(iv) Department of agriculture;
(v) Association of soil and water conservation districts; and
(vi) Soil and water conservation agency;
(8) Agricultural producers representing the variety of crops and livestock or poultry raised within the State;
(9) Owners of nonindustrial private forest land;
(10) Nonprofit organizations, within the meaning of section 501(c)(3) of the Internal Revenue Code of 1986, with demonstrable conservation expertise and experience working with agriculture producers in the State;
(11) Agribusiness; and
(12) The State Cooperative Extension Service and land grant universities in the State.
(b) The State Conservationist will invite other relevant Federal, State, and regional agencies, organizations, and persons knowledgeable about economic and environmental impacts of natural resource conservation techniques and programs to participate as needed.
(c) To ensure that recommendations of State Technical Committees take into account the needs of the diverse groups served by USDA, membership will include, to the extent practicable, individuals with demonstrated ability to represent the conservation and related technical concerns of particular historically underserved groups and individuals; i.e., minorities, women, persons with disabilities, socially and economically disadvantaged groups, and beginning farmers and ranchers.
(d) In accordance with the guidelines in paragraphs (a), (b), and (c) of this section, it is the responsibility of the State Conservationist to seek a balanced representation of interests among the membership on the State Technical Committee. Individuals or groups wanting to participate on a State Technical Committee within a specific State may submit a request to the State Conservationist that explains their interest and outlines their credentials which they believe are relevant to becoming a member. Decisions regarding membership are at the discretion of the State Conservationist. State Conservationist decisions on membership are final and not appealable to any other individual or group within USDA.
§ 610.23 State Technical Committee meetings.
(a) The State Conservationist, as Chairperson, schedules and conducts the meetings, although a meeting may be requested by any USDA agency or State Technical Committee member.
(b) NRCS will establish and maintain national standard operating procedures governing the operation of State Technical Committees and Local Working Groups in its directive system. The standard operating procedures will outline items such as: The best practice approach to establishing, organizing, and effectively utilizing State Technical Committees and Local Working Groups; direction on publication of State Technical Committee and Local Working Group meeting notices and agendas; State Technical Committee meeting summaries; how to provide feedback on State Conservationist decisions regarding State Technical Committee recommendations; and other items as determined by the Chief.
(c) In addition to the standard operating procedures established under paragraph (b) of this section, the State Conservationist will provide public notice and allow public attendance at State Technical Committee and Local Working Group meetings. The State Conservationist will publish a meeting notice no later than 14 calendar days prior to a State Technical Committee meeting. Notification may exceed this 14-day minimum where State open meeting laws exist and provide for a longer notification period. This minimum 14-day notice requirement may be waived in the case of exceptional conditions, as determined by the State Conservationist. The State Conservationist will publish this notice in at least one or more newspaper(s), including recommended Tribal publications, to attain statewide circulation.
§ 610.24 Responsibilities of State Technical Committees.
(a) Each State Technical Committee established under this subpart will meet on a regular basis, as determined by the State Conservationist, to provide information, analysis, and recommendations to appropriate officials of the U.S. Department of Agriculture (USDA) who are charged with implementing and establishing priorities and criteria for natural resources conservation activities and programs under Title XII of the Food Security Act of 1985 including, but not limited to, the Agricultural Conservation Easement Program, Conservation Reserve Program, Conservation Security Program, Conservation Stewardship Program, Environmental Quality Incentives Program, Conservation Innovation Grants, Conservation of Private Grazing Land, Grassroots Source Water Protection Program, the Voluntary Public Access and Habitat Incentive Program, and the Regional Conservation Partnership Program. The members of the State Technical Committee may also provide input on other natural resource conservation programs and issues as may be requested by NRCS or other USDA agency heads at the State level as long as they are within the programs authorized by Title XII. Such recommendations may include, but are not limited to, recommendations on:
(1) The criteria to be used in prioritizing program applications;
(2) The State-specific application criteria;
(3) Priority natural resource concerns in the State;
(4) Emerging natural resource concerns and program needs; and
(5) Conservation practice standards and specifications.
(b) The role of the State Technical Committee is advisory in nature, and the committee will have no implementation or enforcement authority. The implementing agency reserves the authority to accept or reject the committee’s recommendations. However, the implementing USDA agency will give strong consideration to the State Technical Committee’s recommendations.
(c) State Technical Committees will review whether Local Working Groups are addressing State priorities.
§ 610.25 Subcommittees and Local Working Groups.
(a) Subcommittees. In some situations, specialized subcommittees, made up of State Technical Committee members, may be needed to analyze and examine specific issues. The State Conservationist may assemble certain members, including members of Local Working Groups and other knowledgeable individuals, to discuss, examine, and focus on a particular technical or programmatic topic. The subcommittee may seek public participation, but it is not required to do so. Nevertheless, recommendations resulting from these subcommittee sessions, other than sessions of Local Working Groups, will be made only in a general session of the State Technical Committee where the public is notified and invited to attend. Decisions resulting from recommendations of Local Working Groups will be communicated to NRCS in accordance with the standard operating procedures described in § 610.23(b).
(b) Local Working Groups. (1) Local Working Groups will be composed of conservation district officials, agricultural producers representing the variety of crops and livestock or poultry raised within the local area, nonindustrial private forest land owners, and other professionals representing relevant agricultural and conservation interests and a variety of disciplines in the soil, water, plant, wetland, and wildlife sciences who are familiar with private land agricultural and natural resource issues in the local community;
(2) Local Working Groups will provide recommendations on local natural resource priorities and criteria for conservation activities and programs; and
(3) Local Working Groups will follow the standard operating procedures described in § 610.23(b).
Subpart D – Conservation of Private Grazing Land
§ 610.31 Purpose and scope.
(a) This subpart sets forth the policies for the Conservation of Private Grazing Land (CPGL) Program, as authorized by Section 386 of the Federal Agriculture Improvement and Reform Act of 1996, (Pub. L. 104-127, April 4, 1996) 16 U.S.C. 2005b. Under the CPGL Program, NRCS will provide technical assistance to landowners and managers who request assistance based on locally-established priorities and resource concerns. The purpose of the CPGL Program is to provide technical assistance to private grazing land owners and managers to voluntarily conserve or enhance grazing land resources to meet ecological, economic, and social demands.
(b) The term “private grazing land” means private, State-owned, tribally owned, and any other non-federally owned rangeland, pastureland, grazed forestland, hayland, and other lands used for grazing.
(c) The NRCS Chief may implement the CPGL Program in any of the 50 States, the District of Columbia, Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, and American Samoa. NRCS will provide assistance in cooperation with conservation districts, or directly to a landowner or operator.
§ 610.32 Technical assistance furnished.
(a) Provide technical assistance to grazing-land owners and managers to plan and implement resource conservation on grazing land. The objective of planning on grazing land is to assist landowners and managers in understanding the basic ecological principles associated with managing their land. This objective can be met by implementing a plan that meets the needs of the resources (soil, water, air, plants, and animals) and management objectives of the owner or manager. NRCS may provide assistance, at the request of the private grazing-land owner or manager to:
(1) Maintain and improve private grazing land resources that provide multiple benefits;
(2) Ensure the long-term sustainability of private grazing land resources;
(3) Implement new grazing land management technologies;
(4) Manage resources on private grazing land through conservation planning, including, but not limited to; grazing management, nutrient management, and weed and invasive species control;
(5) Maintain and improve water quality and quantity, aquatic and wildlife habitat, recreational opportunities, and aesthetics on private grazing land;
(6) Harvest, process, and market private grazing land resources; and
(7) Identify opportunities to diversify private grazing land enterprises.
(b) Refer to 7 CFR 610.4 on other items relating to technical assistance.
(c) To receive technical assistance, a landowner or manager may contact NRCS or the local conservation district to seek assistance to solve identified natural resource problems or opportunities. Participation in this program is voluntary.
PART 611 – SOIL SURVEYS
Subpart A – General
§ 611.1 Purpose and scope.
(a) This part sets forth policy on soil survey operations of the Natural Resources Conservation Service (NRCS).
(b) NRCS is responsible for soil survey activities of the U.S. Department of Agriculture (USDA). A soil survey provides:
(1) An orderly, on-the-ground, scientific inventory of soil resources according to their potentialities and problems of use; and
(2) Information about each kind of soil in sufficient detail to meet all reasonable needs of farmers, agricultural technicians, community planners, engineers, and scientists in planning and transferring the findings of research and experience to specific land areas.
§ 611.2 Cooperative relationships.
(a) Soil surveys on nonfederal lands are carried out cooperatively with State agricultural experiment stations and other State agencies. The cooperative effort is evidenced in a memorandum of understanding setting forth guidelines for actions to be taken by each cooperating party in the performance of soil surveys. Similar cooperative arrangements exist between NRCS and other Federal agencies for soil surveys on Federal lands.
(b) Arrangements for nonfederal financial participation in the cost of soil surveys may be made with States, counties, soil conservation districts, planning agencies, and other local groups.
Subpart B – Soil Survey Operations
§ 611.10 Standards, guidelines, and plans.
(a) NRCS conducts soil surveys under national standards and guidelines for naming, classifying, and interpreting soils and for disseminating soil survey information.
(b) A soil survey Memorandum of Understanding (MOU) is prepared prior to the start of each soil survey project, or a work plan is prepared for soil survey maintenance activities. These documents provide specific details and technical specifications to support the interpretive and data needs of the area to be surveyed. The MOU is signed by representatives of NRCS, land grant universities, and in some States representatives of other State agencies. Federal land administering agencies also sign the MOU if federal lands are included in the survey.
§ 611.11 Soil survey information.
(a) Availability. NRCS disseminates soil survey information to the public by any of the means described in paragraph (d) of this section. NRCS makes soil survey information available as soon as is practicable following field work or other soil survey activity that provides new soil survey information.
(b) Content. Soil survey information conforms with standards and meets the needs identified in the soil survey MOU or work plan as described in § 611.10 of this part. Soil survey information includes:
(1) Soil maps that delineate the location and extent of various soil areas;
(2) Soil characteristics for each of the soil areas shown on soil maps;
(3) Interpretations of the soil characteristics; and
(4) Information about the source, version, and applicability or limitations associated with the soil survey information.
(c) Maintenance. Soil survey information is reviewed on a periodic basis to ensure that the information continues to meet evolving needs.
(d) Distribution. Soil survey information is disseminated to the public through electronically accessible maps and reports, electronic access to data files, or printed documents. To the extent practicable, as limited by commonly accepted technology, soil survey information is disseminated in electronic form.
(e) Resource conservation plan data. Information prepared specifically for use in developing resource conservation plans for soil conservation district cooperators is considered confidential. Soil maps and interpretations prepared for this use will not be made available to others without the consent of the landowner as well as the district governing body. However, soil survey information from which the conservation plan was developed may be disseminated as described in paragraph (a) of this section.
Subpart C – Cartographic Operations
§ 611.20 Function.
The NRCS National Cartography and Geospatial Center provides cartographic services needed to carry out NRCS functions. Cartographic services include general cartography, photogrammetry, aerial photography, planimetric and topographic mapping, drafting, and specialized types of reproduction.
§ 611.21 Availability of aerial photography.
The National Cartography and Geospatial Center obtains necessary clearance for all aerial photography for NRCS. New aerial photography of designated areas in the United States is obtained yearly by NRCS through competitive contracting. This photography is obtained only after it is determined that imagery of these areas available from other sources does not meet NRCS scale and quality requirements. Orders for reproductions of NRCS aerial photography are subject to the fee schedule cited in § 1.2(b) of this title. Order reproductions from the National Cartography and Geospatial center: USDA – National Resources Conservation Service; P.O. Box 6567, FWFC-Bldg. 23; 501 W. Felix Street; Forth Worth, Texas 76115.
§ 611.22 Availability of satellite imagery.
Cloud-free maps of the United States based on imagery received from a satellite are prepared and released to the public by NRCS. The maps offer the first image of the United States not obscured by clouds or distortions. Orders or requests for information should be directed to the National Cartography and Geospatial Center, USDA – Natural Resources Conservation Service; P.O. Box 6567, FWFC-Bldg. 23; 501 W. Felix Street; Forth Worth, Texas 76115. Orders are subject to the fee schedule cited in § 1.2(b) of this title.
PART 612 – SNOW SURVEYS AND WATER SUPPLY FORECASTS
§ 612.1 Purpose and scope.
This part sets forth Natural Resources Conservation Service (NRCS) policy and procedure for the administration of a cooperative snow survey and water supply forecast program. The program provides agricultural water users and other water management groups in the western states area with water supply forecasts to enable them to plan for efficient water management. The program also provides the public and the scientific community with a data base that can be used to accurately determine the extent of the now resource. The western states area comprises Alaska, Arizona, California (east side of the Sierra Nevada mountain range only), Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming.
§ 612.2 Snow survey and water supply forecast activities.
To carry out the cooperative snow survey and water supply forecast program, NRCS:
(a) Establishes, maintains, and operates manual and automated snow course and related hydro meteorological networks. Planning for such networks is carried out in accordance with OMB Circular A-62.
(b) Determines and provides information on the expected water supply, including seasonal streamflow data. If pertinent and appropriate to the needs of cooperators and not otherwise available to them, may provide necessary interpretative analyses and forecasts required for operation of water-control structures and/or agricultural operations.
(c) On request and to the extent NRCS resources and any required cooperator contributions are available, establishes hydrometeorological stations to cllect and provide data and necessary interpretive analyses to the requesting party. By written agreement NRCS may accept cooperators’ funds, materials, equipment, and services for this purpose.
(d) Develops and encourages use of new techniques and improving data collection and processing.
(e) Cooperates with other federal, state, and local agencies, organizations, and Canadian provinces and agencies.
§ 612.3 Data collected and forecasts.
(a) Basic data are currently collected at numerous sites in the western states area. Data sites generally include a snow course where both snow depth and water equivalent of snow are measured. However, special sites may measure only snow depth or water equivalent. Many of these sites also provide related drometeorological data, such as precipitation, temperature, humidity, solar tradiation, and wind.
(b) Water supply forecasts in the western states area are generally made monthly from January through June. Forecasts may be made more frequently for an established need when data are available to NRCS.
§ 612.4 Eligible individuals or groups.
(a) Any individual or group who is a significant water user and who would benefit from a water supply forecast may obtain forecasts from NRCS on a regular basis provided data are available to NRCS to develop a forecast at the desired location.
(b) The program collects and interprets data as a service and an aid to agricultural interests, particularly those served by or affiliated with soil, water, and other conservation districts. Information collected by NRCS for these agricutural users is also made available to other Federal, State, and private agencies and to the general public without charge. Cooperator financial contribution is usually required for special measurements or interpretations beyond the scope of the regular program.
§ 612.5 Dissemination of water supply forecasts and basic data.
Water supply outlook reports prepared by NRCS and its cooperators containing water supply forecasts and basic data are usually issued monthly by each NRCS state office in the western states area for the months of January through June. Other reports jointly issued by NRCS and its cooperators include a fall water supply summary, annual and accumulative summaries of data, and a western states area report covering water supply outlook.
§ 612.6 Application for water supply forecast service.
Requests for obtaining water supply forecasts or related assistance may be directed to any NRCS office in the western states areas. NRCS offices are described in part 600 of this chapter.
§ 612.7 Forecast user responsibility.
The forecast user’s obligation to the federal government is to give appropriate credit and recognition to NRCS for information furnished. The Federal Government does not assume any responsibility for management decisions the user makes which may be based in whole or part on information provided by NRCS.
PART 613 – PLANT MATERIALS CENTERS
§ 613.1 Purpose.
This part provides NRCS policy on the operation of PMCs. The Centers have responsibilities for assembling, testing, releasing, and providing for the commercial production and use of plant materials and plant materials technology for programs of soil, water, and related resource conservation and development.
§ 613.2 Policy and objectives.
(a) It is NRCS policy to assemble, comparatively evaluate, release, and distribute for commercial increase new or improved plant materials and plant materials technology needed for broad programs of resource conservation and development for agriculture, wildlife, urban, recreation, and other land uses and environmental needs. It is the policy of NRCS to conduct plant materials work in cooperation with other agencies of the Department of Agriculture, such as the Agricultural Research Service, and with other Federal and State research agencies, including State agricultural experiment stations. The emphasis of the NRCS plant materials work is to find suitable plants to address conservation needs. In contrast, the emphasis of research agencies and organizations in plant development is to improve economically important crops. The NRCS program of testing and releasing new seed-propagated plant materials follows the guidelines in “Statement of Responsibilities and Policies Relating to the Development, Release, and Multiplication of Publicly Developed Varieties of Seed-Propagated Crops,” which was adopted in June 1972, by Land Grant Colleges and interested Federal agencies. NRCS releases improved conservation plant materials requiring vegetative multiplication in ways appropriate for particular States and particular species by working with experiment stations, crop improvement associations, and other State and Federal agencies.
(b) The objective of the plant materials activity is to select or develop special and improved plants and techniques for their successful establishment and maintenance to solve conservation problems and needs related to:
(1) Controlling soil erosion on all lands;
(2) Conserving water;
(3) Protecting upstream watersheds;
(4) Reducing sediment movement into waterways and reservoirs through the stabilization of critical sediment sources, such as surface mined lands, highway slopes, recreation sites, and urban and industrial development areas;
(5) Stabilizing disposal areas for liquid and solid wastes;
(6) Improving plant diversity and lengthening the grazing season on dryland pastures and rangelands;
(7) Managing brush on mountain slopes with fire-retarding plant cover to reduce the possibility of fires that threaten life and property, or result in serious sediment sources;
(8) Improving the effectiveness of windbreaks and shelterbelts for reducing airborne sediment, controlling snow drifting, and preventing crop damage from wind erosion;
(9) Protecting streambank, pond, and lake waterlines from erosion by scouring and wave action;
(10) Improving wildlife food and cover, including threatened and endangered and pollinator species;
(11) Selecting special purpose plants to meet specific needs for environment protection and enhancement;
(12) Selecting plants that tolerate air pollution agents and toxic soil chemicals;
(13) Selecting plants that mitigate odor, Particulate Matter (PM)-10, and PM-2.5;
(14) Testing plants for biofuels and other energy-related activities; and
(15) Evaluating plants and techniques to combat invasive plant species and for reestablishment of desirable species after eradication.
§ 613.3 NRCS responsibilities in plant materials.
NRCS operates or enters into agreements with State universities or other State organizations to operate PMCs. NRCS also cooperates, both formally and informally, with other Federal, State, county, and nonprofit agencies or organizations on the selection of plants and evaluation of plant technology to increase the capabilities of PMCs. NRCS employs specialists for testing and selecting plant materials for conservation uses and the development of plant materials technology. NRCS’ responsibilities are to:
(a) Identify the resource conservation needs and cultural management methods for environmental protection and enhancement.
(b) Assemble and comparatively evaluate plant materials at PMCs and on sites where soil, climate, or other conditions differ significantly from those at the Centers.
(c) Make comparative field plantings for final testing of promising plants and techniques in cooperation with conservation districts and other interested cooperators.
(d) Release cooperatively improved conservation plants and maintain the breeder or foundation stocks in ways appropriate for particular State and plant species by working with experiment stations, crop improvement associations, and other State and Federal agencies.
(e) Produce limited amounts of foundation or foundation-quality seed and plants available for allocation to conservation districts, experiment stations, other Federal and State research agencies, State seed certifying organizations and directly to commercial growers (if other options do not exist) that will use the material to establish seed fields, seed orchards, or vegetative plantings for large-scale increase.
(f) Encourage and assist conservation districts, commercial seed producers, and commercial and State nurseries to produce needed plant materials for conservation uses.
(g) Encourage the use of improved plant materials and plant materials technology in resource conservation and environmental improvement programs.
§ 613.4 Special production of plant materials.
NRCS can produce plant materials in the quantity required to do a specific conservation job if this production will serve the public welfare and only if the plant materials are not available commercially. This function will be performed only until the plant materials are available commercially. Specific production of plant materials by NRCS requires the approval of the Chief.
§ 613.5 PMCs.
(a) The Norman A. Berg National PMC. The Norman A. Berg National PMC at Beltsville, Maryland, focuses on national initiatives and provides coordination for plant materials work across all 50 States. In addition, the center provides plants and plant technology to address resource concerns in the mid-Atlantic region.
(b) Other PMCs. There are 26 other PMCs. Each serves several major land resource areas. NRCS operates 24 of these Centers, and 2 by cooperating agencies, as follows:
(1) Operated by NRCS: Tucson, AZ, Booneville, AR, Lockeford, CA, Brooksville, FL, Americus, GA, Molokai, HI, Aberdeen, ID, Manhattan, KS, Galliano, LA, East Lansing, MI, Coffeeville, MS, Elsberry, MO, Bridger, MT, Fallon, NV, Cape May Courthouse, NJ, Los Lunas, NM, Big Flats, NY, Bismarck, ND, Corvallis, OR, Kingsville, TX, Knox City, TX, Nacogdoches, TX, Pullman, WA, and Alderson, WV.
(2) Operated by cooperating agencies with financial and technical assistance from NRCS: Meeker, CO – White River and Douglas Creek Soil Conservation Districts with partial funding from NRCS.
(3) Operated by cooperating agencies with technical assistance from NRCS: Palmer, AK – State of Alaska, Department of Natural Resources.
PART 614 – NRCS APPEAL PROCEDURES
§ 614.1 General.
This part sets forth the informal appeal procedures under which a participant may appeal adverse technical determinations or program decisions made by officials of the Natural Resources Conservation Service (NRCS), an agency under the Department of Agriculture (USDA). These regulations reflect NRCS policy to resolve at the agency level, to the greatest extent possible, disputes arising from adverse technical determinations and program decisions made by NRCS. Once a decision is rendered final by NRCS, participants may appeal to the National Appeals Division (NAD) as provided for under 7 CFR part 11, or to the Farm Service Agency (FSA) county committee pursuant to 7 CFR part 780 for decisions rendered under Title XII of the Food Security Act of 1985, as amended, 16 U.S.C. 3801 et seq. (Title XII).
§ 614.2 Definitions.
The following definitions are applicable for the purposes of this part:
Adverse decision means the final technical determination or the program decision issued by NRCS that is adverse to the individual participant and not a matter of general applicability.
Agency means NRCS and its employees.
Agency exhibit means those documents or materials that are used during the hearing to further explain, differentiate, or distinguish a point, concept, or criteria in an appeal but that were not those materials or documents that the agency relied upon in making the adverse decision. Agency exhibits are labeled alphabetically A, B, C, etc., with total pages in each exhibit numbered.
Agency record means all documents and materials, including documents submitted by the participant and those generated by NRCS, which the agency relies upon and bases its program decision or technical determination. The agency record will include all documents relevant to the adverse decision. NRCS maintains the agency record and will, upon request or appeal, make available a copy of the agency record for a specific adverse decision to the participant(s) involved in the dispute. Agency record documents are labeled numerically 1, 2, 3, etc., in the lower right hand of the document.
Appeal means a written request by a participant asking for review (including mediation) of an adverse NRCS technical determination or program decision under this part. An appeal must set out the reason(s) for appeal and include any supporting documentation. An appeal is considered filed when the participant’s request has been received by the accepting official as indicated in the adverse decision notice.
Chief means the Chief of NRCS or his or her designee.
Commodity Credit Corporation means a wholly owned government corporation within USDA.
Conservation district means any district or unit of State or local government developed under State law for the express purpose of developing and carrying out a local soil and water conservation program. Such district or unit of government may be referred to as a conservation district, soil and water conservation district, natural resource district, conservation committee, or similar name.
County committee means a FSA county or area committee established in accordance with section 8(b) of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h(b)).
Designated conservationist means the NRCS official, usually the district conservationist, whom the State Conservationist designates to be responsible for the program or compliance requirement to which this part is applicable.
Final technical determination means a preliminary technical determination issued under the Highly Erodible Land and Wetland Conservation (HELC/WC) provisions found in 7 CFR part 12 that have become final, and thus, appealable under sections 8 or 10 of this final rule.
Hearing means an informal appeal proceeding, either before the NRCS State Conservationist or the FSA county committee that affords a participant opportunity to present testimony and documentary evidence to show why an adverse program decision is in error and why the adverse decision should be reversed.
Mediation means a process in which a neutral third party, the mediator, meets with the disputing parties, usually the participant and the agency. Through mediation, the parties have the opportunity to work together with the assistance of the mediator to: Improve communications, understand the relevant issues, develop and explore alternatives, and reach a mutually satisfactory resolution.
Mediator means a neutral third party who serves as an impartial facilitator between two or more parties to assist them in resolving a dispute. The mediator does not take sides or render decisions on the merits of the dispute. The mediator assists the parties in identifying areas of agreement and encourages the parties to explore potential options toward resolution.
Participant means any individual or entity who has applied for, or whose right to participate in or receive, a payment or other benefit in accordance with any program administered by NRCS to which the regulations in this part apply and is affected by a decision of NRCS. The term does not include those individuals or entities excluded in the definition of participant published at 7 CFR 11.1.
Preliminary technical determination means the initial written decision by NRCS for a technical matter under HELC/WC which has not become final under this part.
Program decision means a written decision by NRCS concerning eligibility for program benefits, program administration, or program implementation and based upon applicable regulations and program instructions and not a technical determination made solely for the HELC/WC provisions. Program decisions may include technical matters relative to the specific conservation program. These are final decisions upon receipt by the program participant.
Qualified mediator means a mediator who is accredited under State law in those States that have a mediation program certified by USDA pursuant to 7 CFR part 785, or in those States that do not have a mediation program certified by USDA, an individual who has attended a minimum of 40 hours of core mediator knowledge and skills training and, to remain in a qualified mediator status, completes a minimum of 20 hours of additional training or education during each 2-year period. Such training or education must be approved by USDA, an accredited college or university, or one of the following organizations: State Bar, a State mediation association, a State approved mediation program, or a society of dispute resolution professionals.
Reconsideration means a subsequent consideration of a preliminary technical determination by the designated conservationist or the State Conservationist.
Secretary means the Secretary of Agriculture.
State Conservationist means the NRCS official, or his or her designee, in charge of NRCS operations within a State.
Title XII means Title XII of the Food Security Act of 1985, as amended, 16 U.S.C. 3801 et seq.
Verbatim transcript means the official, written record of proceedings of a hearing on a decision appealable under this part.
§ 614.3 Decisions subject to informal appeal procedures.
(a) This part applies to NRCS adverse program decisions and technical determinations made with respect to:
(1) Conservation programs and regulatory requirements authorized under Title XII, including:
(i) Conservation Security Program;
(ii) Conservation Stewardship Program;
(iii) Conservation Reserve Program and the Conservation Reserve Enhancement Program;
(iv) Environmental Quality Incentives Program, including the following:
(A) Agricultural Water Enhancement Program,
(B) Conservation Activity Plans,
(C) Colorado River Basin Salinity Control,
(D) Conservation Innovation Grants,
(E) Ground and Surface Water Conservation Program,
(F) Klamath Basin Program, and
(G) Organic Program Initiative;
(v) Farm and Ranch Land Protection Program;
(vi) Grassland Reserve Program;
(vii) Highly Erodible Land Conservation;
(viii) Wetland Conservation;
(ix) Wetlands Reserve Program and Wetlands Reserve Enhancement Program; and
(x) Wildlife Habitat Incentive Program.
(2) Non-Title XII conservation programs or provisions, including:
(i) Agriculture Management Assistance Program;
(ii) Emergency Watershed Protection Program including Flood Plain Easements;
(iii) Great Lakes Restoration Initiative;
(iv) Healthy Forest Reserve Program;
(v) Water Bank Program;
(vi) Watershed Protection and Flood Prevention Program; and
(3) Any other program to which this part is made applicable.
(b) With respect to matters identified in paragraph (a) of this section, participants may appeal adverse decisions concerning:
(1) Denial of participation in a program;
(2) Compliance with program requirements;
(3) Issuance of payments or other program benefits to a participant in a program;
(4) Technical determinations made under Title XII HELC/WC provisions;
(5) Technical determinations or program decisions that affect a participant’s eligibility for USDA program benefits;
(6) The failure of an NRCS official issue a technical determination or program decision subject to this part (“failure to act”); and
(7) Incorrect application of general policies, statutory or regulatory requirements.
(c)(1) Only a participant directly affected by a program decision or a technical determination made by NRCS may invoke the informal appeal procedures contained in this part.
(2) In order for the appeal request to be effective, the participant must personally make a written request for appeal that is signed by the participant identified in paragraph (c)(1) no later than 30 days after receipt of the adverse decision.
(d) Appeals of adverse final technical determinations and program decisions subject to this part are also covered by the NAD rules of procedure, set forth at 7 CFR part 11, and by the FSA county committee appeals process, set forth at 7 CFR parts 11 and 780 for informal appeals of Title XII decisions.
§ 614.4 Decisions not subject to informal appeal procedures.
(a) Decisions that are not appealable under this part include:
(1) Any general program provision, program policy, or any statutory or regulatory requirement that is applicable to all similarly situated participants, such as:
(i) Program application ranking criteria;
(ii) Program application screening criteria;
(iii) Published soil surveys; or
(iv) Conservation practice technical standards included in the local field office technical guide or the electronic FOTG (eFOTG).
(2) Mathematical or scientific formulas established under a statute or program regulation and a program decision or technical determination based solely on the application of those formulas;
(3) Decisions made pursuant to statutory provisions or implementing regulations that expressly make agency program decisions or technical determinations final;
(4) Decisions that are based on technical information provided by another Federal or State agency, e.g., lists of endangered and threatened species;
(5) Corrections by NRCS of errors in data entered on program contracts, easement documents, loan agreements, and other program documents; or
(6) Decisions issued by the Office of the General Counsel, in the exercise of authority delegated to it by the Attorney General, concerning the application of real property title standards issued by the Attorney General.
(b) Complaints involving discrimination in program delivery are not appealable under this part and are handled under the existing USDA civil rights rules and regulations.
(c) Appeals related to contractual issues that are subject to the jurisdiction of the Civilian Board of Contract Appeals are not appealable under the procedures within this part.
(d) Where NRCS is unable to fund an application for program participation due to a lack of funds. The agency may not deny appeal of the underlying computations used to rank and prioritize the application.
The Secretary of Agriculture, Chief of NRCS, if applicable, or designee, reserves the right to make a determination at any time on any question arising under the programs covered under this regulation within their respective authority, including reversing or modifying in writing, with sufficient reason given therefore, any program decision or technical determination made by an NRCS official.
§ 614.6 Agency records and decision notices.
(a) All NRCS decisions under this part are based upon an agency record. NRCS will supplement the agency record, as appropriate, during the informal appeals process.
(b) NRCS notifies participants of the agency’s preliminary and final technical determinations and program decisions through decision notices. By certified mail, return receipt requested, NRCS will send to the participant a decision notice within 10 working days of rendering a technical determination or program decision. In lieu of certified mail, NRCS may hand deliver notices to participants with written acknowledgment of delivery by the participant. Each decision notice contains the following:
(1) The factual basis for the technical determination or program;
(2) The regulatory, statutory, or policy basis for the technical determination or program decision; and
(3) Information regarding any informal appeal rights available under this part; the process for requesting such appeal; and the procedure for requesting further review before the FSA county committee pursuant to 7 CFR part 780 or NAD pursuant to 7 CFR part 11.
§ 614.7 Preliminary technical determinations.
(a) A preliminary technical determination is limited to those determinations made pursuant to the HELC/WC provisions (16 U.S.C. 3801, et seq.) and becomes final 30 days after the participant receives the decision, unless the participant files an appeal with the appropriate NRCS official as indicated in the decision notice requesting:
(1) Reconsideration with a field visit, office visit, or other designated location meeting site in accordance with paragraphs (b) and (c) of this section; or
(2) Mediation as set forth in § 614.11.
(b)(1) If the participant requests reconsideration with a field visit, office visit, or other location visit, the designated conservationist, participant, and at the option of the conservation district, a district representative will make a field or office visit for the purpose of gathering additional information and discussing the facts relating to the preliminary technical determination. The participant may also provide any additional documentation to the designated conservationist.
(2) Within 15 days of the field or office visit, the designated conservationist, based upon the agency record as supplemented by the field visit and any participant submissions, will reconsider his or her preliminary technical determination.
(3) If the reconsidered determination is no longer adverse to the participant, the designated conservationist will issue the reconsidered determination as a final technical determination.
(4) If the preliminary technical determination remains adverse, then the designated conservationist will forward the revised decision and agency record to the State Conservationist for a final determination pursuant to paragraph (c) of this section, unless further appeal is waived in writing by the participant in accordance with paragraph (d) of this section.
(c) The State Conservationist will issue a final technical determination to the participant as soon as is practicable after receiving the reconsideration and agency record from the designated conservationist. The technical determination issued by the State Conservationist becomes a final NRCS technical determination upon receipt by the participant. Receipt triggers the running of the 30-day timeframe to appeal to NAD, or if applicable, to the FSA county committee.
(d) In order to address application needs or resource issues on the ground immediately (expedited finality), a participant may waive, in writing to the State Conservationist, the reconsideration rights stated in paragraph (a) of this section so that a preliminary technical decision becomes final before the expiration of the 30-day appeal period.
§ 614.8 Final technical determinations.
(a) Preliminary HELC/WC technical determinations become final and appealable:
(1) Thirty days after receipt of the preliminary technical decision by the participant unless the determination is appealed in a timely manner as provided for in this regulation.
(2) Thirty calendar days after the beginning of a mediation session if a mutual agreement has not been reached by the parties; or
(3) Upon receipt by the participant of the final technical determination issued on reconsideration as provided in § 614.7(c).
(b) The participant may appeal the final technical determination issued under the HELC/WC provisions to:
(1) The FSA county committee pursuant to 7 CFR part 780; or
(2) NAD pursuant to 7 CFR part 11.
§ 614.9 Program decisions.
(a) Program decisions are final upon receipt of the program decision notice by the participant. Program decisions include all decisions issued by NRCS for programs that NRCS administers separate from the HELC/WC provisions. The participant has the following options for appeal of the program decision:
(1) An informal hearing before NRCS as provided for in paragraph (b) through paragraph (d) of this section;
(2) Mediation as provided for in § 614.11;
(3) An informal hearing before the FSA county committee pursuant to 7 CFR part 780 if the program decision is made under Title XII; or
(4) A hearing before NAD pursuant to 7 CFR part 11.
(b) A program participant must file an appeal request for a hearing with the appropriate State Conservationist as indicated in the decision notice within 30 calendar days from the date the participant received the program decision.
(c) The State Conservationist may accept a hearing request that is untimely filed under paragraph (b) of this section if the State Conservationist determines that circumstances warrant such an action.
(d) The State Conservationist will hold a hearing no later than 30 days from the date the appeal request was received. The State Conservationist will issue a written final decision no later than 30 days from the close of the hearing.
(e) NRCS will provide notice of the right to appeal to NAD on program decisions when equitable relief is denied by the Chief or the State Conservationist.
§ 614.10 Appeals before the Farm Service Agency county committee.
(a) In accordance with 7 CFR part 780, a participant may appeal a final technical determination or a program decision to the FSA county committee for those decisions made under Title XII.
(b) When the FSA county committee hearing the appeal requests review the technical determination by the applicable State Conservationist prior to issuing their decision, the State Conservationist will:
(1) Designate an appropriate NRCS official to gather any additional information necessary for review of the technical determination;
(2) Obtain additional oral and documentary evidence from any party with personal or expert knowledge about the facts under review; and
(3) Conduct a field visit to review and obtain additional information concerning the technical determination.
(c) After the actions set forth in paragraphs (b)(1) through (3) of this section are completed, provide the FSA county committee with a written technical determination in the form required by § 614.6(b)(1) through (2) as well as a copy of the agency record.
§ 614.11 Mediation.
(a) A participant who wishes to pursue mediation must file a request for mediation under this part with the official designated in the decision notice no later than 30 days after the date on which the decision notice was received. Participants in mediation are normally required to pay fees established by the mediation program.
(b) A dispute will be meditated by a qualified mediator as defined at § 614.2(n).
(c) The parties will have 30 days from the date of the first mediation session to reach a settlement agreement. This date can be extended upon agreement of the parties. The mediator will notify the State Conservationist whether the parties have reached an agreement.
(d) Settlement agreement reached during, or as a result of, the mediation process must be in writing, signed by all parties to the mediation, and comply with the statutory and regulatory provisions and policies governing the program. In addition, the participant must waive all appeal and judicial rights as to the issues resolved by the settlement agreement.
(e) At the outset of mediation, the parties must agree to mediate in good faith. NRCS demonstrates good faith in the mediation process by, among other things:
(1) Designating an NRCS representative in the mediation;
(2) Making pertinent records available for review and discussion during the mediation; and
(3) To the extent the NRCS representative does not have authority to bind the agency, directing the NRCS representative to forward, in a timely manner, any written agreement proposed in mediation to the appropriate NRCS official for consideration.
(f) Mediator impartiality. (1) No person may serve as mediator in an adverse program dispute who has previously served as an advocate or representative for any party in the mediation.
(2) No person serving as mediator in an adverse program dispute may thereafter serve as an advocate for a participant in any other proceeding arising from or related to the mediated dispute including, without limitation, representation of a mediation participant before an administrative appeals entity of USDA or any other Federal agency.
(g) Confidentiality. Mediation is a confidential process except for those limited exceptions permitted by the Administrative Dispute Resolution Act at 5 U.S.C. 574. As a condition of participation, the participants and any interested parties joining the mediation must agree to the confidentiality of the mediation process. The mediator will not testify in administrative or judicial proceedings concerning the issues discussed in mediation, nor submit any report or record of the mediation discussions, other than the mediation agreement or the mediation report, except as required by law.
§ 614.12 Transcripts.
(a) No recordings will be made of any informal hearing conducted under § 614.9. In order to obtain an official record of a hearing, a participant may obtain a verbatim transcript as provided in paragraph (b) of this section.
(b) Any party to an informal hearing appeal under § 614.9 may request that a verbatim transcript is made of the hearing proceedings and that such transcript is made the official record of the hearing. The party requesting a verbatim transcript must pay for the transcription service and provide a copy of the transcript to NRCS at no charge.
§ 614.13 Appealability review.
If NRCS states that a decision is not adverse to the individual participant, and thus, no right to appeal exists, NRCS will notify the participant that he may seek review of that determination from the NAD Director.
§ 614.14 Computation of time.
(a) The word “days” as used in this final rule means calendar days, unless specifically stated otherwise.
(b) Deadlines for any action under this part, including deadlines for filing and decisions which fall on a Saturday, Sunday, Federal holiday, or other day on which the relevant NRCS office is closed during normal business hours, will be extended to close of business the next working day.
§ 614.15 Implementation of final NAD determinations.
(a) No later than 30 days after a NAD determination becomes a final administrative decision of USDA, NRCS will implement the determination.
(b) Biannually, NRCS must file a report on the status of implementation of final administrative determinations in accordance with section 14009 of the 2008 Farm Bill.
§ 614.16 Participation of third parties in NRCS proceedings.
When an appeal is filed under this part, NRCS will notify any third party whose interests may be affected of the right to participate as an appellant in the appeal. If the third party declines to participate, then NRCS’ decision will be binding as to that third party as if the party had participated. If a formal hearing is conducted by NAD, third party issues will be decided by NAD.
§ 614.17 Judicial review.
A participant must receive a final determination from NAD pursuant to 7 CFR part 11 prior to seeking judicial review in any U.S. District Court of competent jurisdiction.
SUBCHAPTER C – WATER RESOURCES
PART 621 – RIVER BASIN INVESTIGATIONS AND SURVEYS
Subpart A – General
§ 621.1 Purpose.
This part describes policies, requirements, and procedures governing the Department of Agriculture’s (USDA’s) investigations and surveys of watersheds of rivers and other waterways as a basis for developing coordinated programs. These activities are undertaken in cooperation with other Federal, State, and local agencies. The delegation of authority to the Natural Resources Conservation Service (NRCS) to provide national leadership for the conservation, development, and productive use of the Nation’s soil, water, and related resources, including the activities treated in this part is found at § 2.62 of this title.
§ 621.2 Scope.
USDA river basin activities include:
(a) Cooperative river basin surveys in coordination with Federal, State, and local agencies;
(b) Floodplain management assistance in coordination with the responsible State agency and involved local governments;
(c) Joint investigations and reports with the Department of the Army under Pub. L. 87-639, 76 Statute 438 (16 U.S.C. 1009); and
(d) Interagency coordination of water resources activities.
Subpart B – USDA Cooperative Studies
§ 621.10 Description.
Cooperative river basin studies provide USDA planning assistance to Federal, State, and local governments. The purpose of these studies is to assist in appraising water and related land resources; defining and determining the extent of the problems; and formulating alternative plans, including land treatment, nonstructural or structural measures, or combinations thereof, that would solve existing problems or meet existing and projected needs. These studies concentrate on specific objectives identified by the requesting agencies and citizen groups that are consistent with USDA authorities and responsibilities and current NRCS priorities. The objectives ordinarily include the formulation of a plan but may require only inventories of available resources and associated problems to be used by other agencies in plan formulation. USDA assistance is provided through field advisory committees composed of representatives of the Economic Research Service, Forest Service, and NRCS. The NRCS representative chairs the field advisory committee.
§ 621.11 Who may obtain assistance.
Assistance is available to conservation districts, communities. county governments, regional planning boards, other planning groups, and State and Federal agencies. Local groups express their desires for a cooperative study to the governor or appropriate State agency.
§ 621.12 How to request assistance.
For a cooperative study a governor, or a Federal, State, or local government agency must submit a written request and a Proposal to Study (PTS) through the NRCS State Conservationist to the Chief. Assistance in preparing the proposal may be obtained by contacting the State Conservationist. The State Conservationist sends the request and proposal with comments to the Chief for consideration. The proposal should:
(a) Describe the basin or study area, including a map of the study area;
(b) Explain the need for the study;
(c) Explain the need for USDA participation;
(d) State the responsibility and authority of the requesting agency in the study;
(e) Estimate the extent of participation of other Federal and State agencies;
(f) Discuss views and priorities of affected soil conservation districts regarding the proposed study;
(g) Briefly describe the intended management organization of the study;
(h) Specifically describe the expected results of the study;
(i) Identify primary users of the study results and the manner in which the results will be used;
(j) State the relationship of the study to ongoing and completed river basin studies;
(k) State that procedures for informing clearinghouses and for eliciting public participation will be followed;
(l) Estimate the duration and scope of the study; and
(m) Estimate the study costs by year and agency.
§ 621.13 Conditions for approval.
The Chief may authorize requested cooperative studies recommended by the State Conservationist. Priority for starting cooperative studies is based on the date of application, the readiness of the requesting agency to begin participation, the importance and significance of problems to be studied, the monetary or in-kind contributions toward the study, the sequence of ongoing and future studies, the type of study, the duration of study, the cost of study, the potential for implementation and other factors affecting the effectiveness and efficiency of the study. The number and location of cooperative studies started each year are governed by the availability of USDA funds and personnel.
§ 621.14 Recipient responsibility.
Leadership in arrangements for other needed Federal, State, and local agency participation is responsibility of the requesting agency. Consistent with national objectives and NRCS policy and procedures, the requesting agency has leadership responsibility for developing specific study objectives, providing the necessary study organization, and ensuring public participation in the planning process.
Subpart C – Floodplain Management Assistance
§ 621.20 Description.
Floodplain management studies provide needed information and assistance to local and State entities so that they can implement programs for reducing existing and future flood damages in rural and urban communities. Assistance is targeted to communities where flood damage is a serious concern and local governments are sincerely interested in taking action to reduce damage.
§ 621.21 Who may obtain assistance.
Assistance is available to conservation districts, communities, county governments, regional planning boards, other planning groups, and State and Federal agencies.
§ 621.22 How to request assistance.
(a) A conservation district, local community or other jurisdiction may request floodplain management assistance for a local area for which they are responsible, by letter to the governor or the agency of State government responsible for floodplain management activities. Assistance in making application may be obtained by contacting any NRCS office.
(b) The governor or his designee may request floodplain management assistance for the State by submitting a written request to the State Conservationist.
§ 621.23 Conditions for approval.
(a) USDA floodplain management studies are authorized by the Director of the Basin and Area Planning Division. Priority for starting floodplain management studies is based on the same factors as for USDA Cooperative Studies as described in § 621.13.
(b) A study for an individual community may be started upon completion of a plan of work in which the Director of the Basin and Area Planning Division concurs and for which funds are available. Preparation of the plan of work is the responsibility of and must be approved by the applicant, the responsible State agency, and the State Conservationist. The plan sets forth the responsibilities of the applicant, the State, and USDA in carrying out the study and interpreting and using the data in a local floodplain management program. The State agency responsible for floodplain management activities may establish priorities on which to base the sequence of approval of floodplain management studies within its State. The number of studies started each Federal fiscal year is governed by the availability of funds and personnel and the amount of State and local assistance available.
(c) States and communities are encouraged to make monetary or in-kind contributions toward the floodplain management study. The State and local share may reflect in-kind contributions in lieu of fund transfers.
§ 621.24 NRCS responsibility.
NRCS is responsible for providing leadership for scheduling and implementing the technical phases of the studies and preparing the reports. NRCS assists in interpreting the study results.
§ 621.25 Recipient responsibility.
The State agency is responsible for developing State priorities for floodplain management studies and coordinating this work with related activities in the State. The cooperating local government entity is responsible for obtaining permission for carrying out field surveys. The State and local participants assist in distributing and interpreting the report and providing public information and educational services.
Subpart D – Joint Investigations and Reports With the Department of the Army
§ 621.30 Description.
(a) As provided by Pub. L. 87-639, joint investigations and reports by USDA and the Department of the Army may be authorized by resolutions adopted by the Committee on Environment and Public Works of the U.S. Senate or the Committee on Public Works and Transportation of the U.S. House of Representatives for any watershed area in the 50 States, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands if the nature of the watershed area problems dictates need for a joint effort by the two Departments.
(b) Authorized joint investigations and reports are made to determine works of improvement needed in the study area for flood prevention; for the conservation, development, use, and disposal of water; for flood control; for the conservation and proper use of land; and for allied purposes. The joint report to Congress may include a water and related land resources plan recommended for implementation. Such an implementation plan must be accompanied by an environmental impact statement (EIS) and must be in sufficient detail to permit its implementation.
(c) As mutually agreed by USDA and the Department of the Army Corps of Engineers, the report and EIS are forwarded to Congress through appropriate channels after technical, public, and interagency reviews in accordance with NRCS policy as described in § 622.34, or in accordance with the Corps of Engineers’ policy concerning technical and public review. Implementation of these plans is contingent on congressional action.
§ 621.31 Who may request assistance.
Any organization, group, or State or local government may request assistance.
§ 621.32 How to request assistance.
Applicants for a joint investigation and report should request their congressional representative(s) to initiate appropriate action under Pub. L. 87-639.
§ 621.33 Conditions for approval.
A joint investigation and report is authorized by a resolution of the Committee on Environment and Public Works of the U.S. Senate or the Committee on Public Works and Transportation of the U.S. House of Representatives. Studies are initiated when funds for them are appropriated by the Congress.
§ 621.34 Recipient responsibility.
Participating local and State governments work with USDA and the Department of the Army representatives in developing objectives, collecting data, analyzing problems, planning and formulating proposals, and considering financial plans. Active public participation is solicited in the planning process through means such as questionnaires, public meetings, citizen advisory boards, and technical committees.
Subpart E – Interagency Coordination
§ 621.40 Participation in Federal interagency policy activities at the national level.
(a) Policy development in water and related land resources is coordinated at the Federal level through the Cabinet Council on Natural Resources and Environment. NRCS provides staff support and representation in these activities as requested.
(b) Within the Department, all interested USDA agencies participate in water policy development through the USDA Committee on Natural Resources and Environment and the Water Issues Work Group.
(c) NRCS provides appropriate staff support when requested for committees, work groups, and task forces established for interagency coordination of water resources related activities of Federal agencies.
§ 621.41 Participation in Federal-State policy and planning activities at the regional level.
(a) NRCS has a responsibility to represent the Department when needed to assist regional water planning entities and interagency committees which coordinate water resources planning activities.
(b) For the Arkansas-White-Red Basin Interagency Committee (AWRBIAC) and the Pacific Southwest Interagency Committee (PSIAC), the USDA member periodically serves as chairperson and provides an executive secretary. For the Southeast Basin Interagency Committee (SEBIAC), NRCS periodically provides an executive secretary for the chairperson, who is a State government official.
(c) Under the leadership of NRCS, other USDA agencies, principally the Forest Service and Economic Research Service, also participate.
§ 621.42 Federal-State compacts.
NRCS is designated to represent USDA in assisting the U.S. Commissioners of the Delaware River Basin Commission and the Susquehanna River Basin Commission. In carrying out this responsibility, NRCS provides a liaison officer to work with the U.S. Commissioners on policy level matters, as well as providing the USDA representatives on the Federal field committees to assist the Commissioners.
§ 621.43 Interstate compacts and commissions.
As assigned, an NRCS State Conservationist is the USDA point of contact for governing bodies of interstate compacts and commissions concerned with the conservation, development, and proper use of water, soil, and related resources.
§ 621.44 Special studies.
As designated, NRCS represents USDA on special study groups such as for the Colorado River Basin Salinity Control Program Studies.
§ 621.45 Flood insurance studies.
As requested by the Federal Emergency Management Agency (FEMA), and within the limits of available resources, NRCS carries out flood insurance studies of various types under the National Flood Insurance Program (Pub. L. 90-448, 82 Statute, 574 (42 U.S.C. 4012)), as amended. In this activity, NRCS performs detailed technical studies to determine the extent and frequency of flooding. The flood insurance program is administered by FEMA. NRCS is reimbursed by that agency for actual costs incurred in carrying out the studies. Local entities desiring flood insurance coverage should contact the responsible State agency or FEMA and apply in accordance with procedures of that agency.
PART 622 – WATERSHED PROJECTS
Subpart A – General
§ 622.1 Purpose.
This part sets forth the general policies for planning and carrying out watershed projects under Pub. L. 83-566, 68 Stat. 666 (16 U.S.C. 1001 et seq.) and flood prevention projects under Pub. L. 78-534, 58 Stat. 889 (33 U.S.C. 701b-1).
§ 622.2 Scope.
(a) To assist sponsors in preparing and carrying out watershed plans, the Natural Resources Conservation Service (NRCS) shall conduct investigations and surveys, with the cooperation and assistance of other Federal agencies, to:
(1) Determine the extent of watershed problems and needs, and
(2) Set forth viable alternative solutions consistent with local, regional, and national objectives, including an alternative solution which makes the greatest net contribution to national economic development.
(b) Alternatives will consist of either land treatment, nonstructural or structural measures, or combinations thereof that will help accomplish one or more of the authorized project purposes.
(c) Authorized project purposes are watershed protection, conservation and proper utilization of land, flood prevention, agricultural water management including irrigation and drainage, public recreation, public fish and wildlife, municipal and industrial water supply, hydropower, water quality management, ground water supply, agricultural pollution control, and other water management.
(d) After a final plan for works of improvement is agreed upon between NRCS and the sponsors and the approval processes are completed, NRCS will provide technical and financial assistance to install the project, subject to the availability of funds and the budgeting and fiscal policies of the President.
§ 622.3 Relationship to the Pub. L. 78-534 Program.
(a) General. The purposes and objectives of the programs under Pub. L. 83-566 and Pub. L. 78-534 are the same in most cases. Planning criteria, economic justification, local sponsorship, agency participation, financial assistance, eligible measures, operation and maintenance arrangements for the Pub. L. 78-534 program are consistent with those of the Pub. L. 83-566 program. The differences with the Pub. L. 78-534 program are outlined below.
(b) Initiation. Flood prevention projects are individually authorized by Federal legislation. The state conservationist and the sponsors agree on a plan of action and notify interested parties to solicit their participation. The sponsors keep the public informed and solicit their views and comments.
(c) Subwatershed plans. These plans are administratively approved by the state conservationist. If the plan involves purposes other than flood prevention, clearance must be obtained from the Office of Management and Budget before approval. Financial assistance available differs only in that program funds may be used for the purchase of land rights for single-purpose flood prevention structures and installing land treatment on Federal lands.
(d) Installation. NRCS shall award and administer contracts for the installation of project measures unless the sponsors agree to perform the work. Project agreements between the sponsors and NRCS are not required if the work consists of flood prevention structures built and funded by NRCS.
§ 622.4 Relationship to other agencies.
NRCS will coordinate responsibilities with other water and land resource development agencies on projects that may come under the jurisdictions of various authorities. This will include any land management agencies which may have land which would be affected by project measures. Coordination with the U.S. Department of the Interior’s Fish and Wildlife Service will be in accordance with section 12 of Pub. L. 83-566 (as amended).
§ 622.5 Guidelines.
Guidelines for carrying out programs authorized under Pub. L. 83-566 and Pub. L. 78-534 are contained in miscellaneous instructions, manuals, and handbooks issued by the Natural Resources Conservation Service, Regulations for Implementing NEPA (40 CFR parts 1500-1508) issued by the Council on Environmental Quality, and in Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies issued by the Water Resources Council. Watershed projects are to be planned and carried out in a way that will conform to conditions mandated by the above and other applicable laws, Executive orders, and codified rules.
§ 622.6 Equal opportunity.
The Pub. L. 83-566 and Pub. L. 78-534 programs will be conducted in compliance with all requirements respecting nondiscrimination as contained in the Civil Rights Act of 1964, as amended, and in the regulations of the Secretary of Agriculture (7 CFR Part 15), which provide that no person in the United States shall, on the grounds of race, color, national origin, sex, age, handicap, or religion be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity conducted or assisted by the Department of Agriculture.
§ 622.7 Notification under Executive Order 12372.
This program is covered under Executive Order 12372, “Intergovernmental Review of Federal Programs” and 7 CFR Part 3015, Subpart V, “Intergovernmental Review of the Department of Agriculture Programs and Activities.” State processes or directly affected State, areawide, regional and local officials and entities have 60 days for comment starting from the date of submission of the application to the State Single Point of Contact.
Subpart B – Qualifications
§ 622.10 Sponsors.
(a) Watershed projects are sponsored by one or more local organizations qualifying as sponsors. All watershed plans shall be sponsored by entities legally organized under State law or by any Indian tribe or tribal organization having the authority to carry out, operate and maintain works of improvement. Those plans that incorporate the use of nonstructural or structural measures shall be sponsored by organizations that, individually or collectively, have:
(1) The power of eminent domain,
(2) The authority to levy taxes or use other adequate funding sources, including state, regional, or local appropriations, to finance their share of the project cost and all operation and maintenance costs.
(b) To receive Federal assistance for project installation, sponsors must commit themselves to use their powers and authority to carry out and maintain the project as planned.
§ 622.11 Eligible watershed projects.
(a) To be eligible for Federal assistance, a watershed project must:
(1) Meet the definition of a watershed area as defined in NRCS’s National Watersheds Manual.
(2) Not exceed 250,000 acres in size.
(3) Not include any single structure that provides more than 12,500 acre-feet of floodwater detention capacity nor more than 25,000 acre-feet of total capacity.
(4) Have significant land or water management problems that can be solved or alleviated by measures for watershed protection, flood prevention, drainage, irrigation, recreation, fish and wildlife, municipal or industrial water supply, or other water management.
(5) Produce substantial benefits to the general public, to communities, and to groups of landowners.
(6) Cannot be installed by individual or collective landowners under alternative cost-sharing assistance.
(7) Have strong local citizen and sponsor support through agreement to obtain land rights, contribute the local cost of construction, and carry out operation and maintenance.
(b) Works and improvement that may be included in a watershed project are those that:
(1) Contribute to reducing floodwater, erosion, and sediment damages.
(2) Further the conservation, development, utilization, and disposal of water and the conservation and proper utilization of land.
(3) Have the greatest net national economic benefits consistent with protecting the Nation’s environment (for structural water resource projects) relative to alternative works, unless an exception is granted by the Secretary.
(4) Are implemented pursuant to the Regional Conservation Partnership Program authorized by Subtitle I of Title XII of the Food Security Act of 1985 (Pub. L. 99-198).
Subpart C – Application Procedure
§ 622.20 Application.
Sponsors shall follow State developed procedures (based on Executive Order 12372) for coordination of proposed Federal financial assistance and also USDA’s 7 CFR part 3015 in applying for Pub. L. 83-566 assistance. Standard forms for Federal assistance or other approved forms may be obtained from NRCS State, area, or field offices. These forms should be submitted to the Single Point of Contact in accordance with the State developed procedures.
§ 622.21 State agency approval.
The governor or designated State agency will approve or disapprove the application. If disapproved, no further action is required of NRCS. If approved or not disapproved within 45 days, the application shall be sent to the NRCS state conservationist. After the state conservationist has determined that the application is legally valid, he will notify the sponsor of receipt of the application. If found not legally valid, the state conservationist will return it to the originator with an opinion.
Subpart D – Planning
§ 622.30 General.
(a) Watershed projects are to be planned and carried out in a way that will (1) minimize all adverse impacts, and (2) mitigate unavoidable losses to the maximum practicable degree. Projects must comply with the requirements of the National Environmental Policy Act of 1969 (Pub. L. 91-190, 83 Stat. 852) (42 U.S.C. 4321 et seq.).
(b) Fish and Wildlife enhancement measures proposed by Federal or State fish and wildlife agencies will be included if they are technically and economically feasible and are acceptable to the sponsors and the NRCS. If additional sponsors are needed to carry out the recommended fish and wildlife measures, NRCS will assist fish and wildlife agencies in attempting to obtain such sponsors.
(c) All planning efforts by NRCS and the sponsors must include well publicized public meetings to obtain public input and views on the project.
(d) Sponsors who receive financial assistance awarded after October 1, 2010, must comply with applicable registration and reporting requirements of the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282, as amended), and 2 CFR parts 25 and 170.
§ 622.31 Basic planning efforts.
(a) Upon receipt of an application, the NRCS will make any necessary field studies and develop a report to justify the need for planning effort. Once planning is authorized by the Chief of NRCS, a watershed plan-environmental impact statement (plan-EIS) or a watershed plan-environmental assessment (plan-EA) will be prepared by NRCS to request funding. This effort must be coordinated with other State and Federal agencies.
(b) The Chief of NRCS may waive the watershed plan for works of improvement if the Chief determines that –
(1) The watershed plan is unnecessary or duplicative; and
(2) The works of improvement are otherwise consistent with applicable requirements under this part.
§ 622.32 Reviews and approvals.
(a) The watershed plan-environmental impact statement (or assessment) will be subject to internal technical reviews, sponsor and other local party review, interagency review by other Federal, state, and concerned groups, and a final review as stated in NRCS’s National Watersheds Manual.
(b) After thorough review by NRCS and other agencies, the NRCS and the sponsors shall accept the plan-EIS or plan-EA by signing the watershed agreement. The watershed plan must be approved by the Committees of Congress or the Chief of NRCS. Funding for installation can then be granted by the Chief of NRCS.
PART 623 – EMERGENCY WETLANDS RESERVE PROGRAM
§ 623.1 Purpose and scope.
(a) The regulations in this part set forth the policies, procedures, and requirements for the Emergency Wetlands Reserve Program (EWRP). Under the EWRP, NRCS will make offers to purchase wetland conservation easements from persons owning croplands that were damaged by the 1993 Midwest floods if those lands have the potential for restoration to wetland conditions and if the owner voluntarily agrees to restore and maintain those conditions. The easements are to be purchased to promote the restoration and maintenance of wetland characteristics, such as hydrologic conditions of inundation or saturation of the soil and hydrophytic vegetation. The functions and values of the wetlands for wildlife habitat, water quality improvement, flood water retention, floodway enhancement, ground water recharge, open space, aesthetic values, and environmental education will thus be promoted. The wetland conservation easements will permanently prohibit use of the affected land as cropland. Additionally, the easement shall require permanent maintenance of the wetland conditions, except in the case of natural disaster.
(b) The EWRP is available only in the following States: Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, South Dakota, and Wisconsin. Certain cropland areas within these States have been determined to have been inundated by the Midwest floods of 1993. As more fully defined and described in this part, eligible land may include farmed wetlands or prior converted wetlands (wetlands converted prior to December 23, 1985), together with adjacent lands on which the wetlands are functionally dependent so long as the likelihood of successful restoration of such land and the potential wetland values merit inclusion in the program with reasonable costs.
§ 623.2 Definitions.
The following definitions shall be applicable for the purposes of this part:
(a) Agricultural commodity – means any crop planted and produced by annual tilling of the soil, or on an annual basis by one trip planters, or alfalfa and other multiyear grasses and legumes in rotation as approved by the Secretary. For purposes of determining crop history, as relevant to eligibility to enroll land in the program, land shall be “considered planted to an agricultural commodity” during a crop year if, as determined by ASCS, as action of the Secretary prevented land from being planted to the commodity during the crop year.
(b) Applicant – means a person who submits to NRCS an application to participate in the EWRP.
(c) Commodity Credit Corporation – a wholly owned government corporation within the U.S. Department of Agriculture.
(d) Conservation District (CD) – means a subdivision of a State or local government organized pursuant to applicable State law to promote soil and water conservation practices.
(e) Conservation Reserve Program – means the program under which long-term payments and cost-share assistance is provided to individuals to establish permanent vegetative cover on cropland that is highly erodible or environmentally sensitive.
(f) Prior converted wetland – means wetland that has been drained, dredged, filled, leveled, or otherwise manipulated (including any activity that results in impairing or reducing the flow, circulation, or reach of water) prior to December 23, 1985, for the purpose, or that has the effect, of making the production of agricultural commodities possible if such production would not have been possible but for such action.
(g) Cost-share payment – means the payment made by NRCS to assist program participants in establishing the practices required in a WRPO.
(h) Chief – means the Chief of the Natural Resources Conservation Service, or the Chief’s designee.
(i) Easement – means the real property interest acquired by NRCS under this part for wetland restoration and maintenance and which is properly filed with the appropriate local or State government official.
(j) Easement area – means the land to which the approved wetland restoration practices and wetland conservation restrictions are to be applied.
(k) Fair market value (FMV) – means the price that a willing seller would accept and a willing buyer would pay in an open, informed transaction.
(l) Farmed wetland – means wetland that was drained, dredged, filled, or otherwise manipulated prior to December 23, 1985 to the extent that the production of agricultural commodities was made possible, but which continues to meet wetland criteria [refer to 7 CFR 12.32(a)(3) for descriptions of farmed wetlands].
(m) Floodwater control systems – means dikes, levees, or other similar structural measures for the protection of cropland from flooding.
(n) FWS – means the Fish and Wildlife Service of the United States Department of the Interior.
(o) Local NRCS office – means the office of the Natural Resources Conservation Service serving the county or combination of counties in which the landowner’s farm or ranch is located.
(p) Participant – means a person(s) owning land subject to a perfected easement purchased by the Natural Resources Conservation Service under this part.
(q) Offer – means the total payment NRCS will make to a landowner to purchase an easement.
(r) Permanent easement – means an easement in perpetuity.
(s) Substantially altered lands – means lands which have not been and are not now wetlands but could likely develop wetland characteristics in the future, as a result of the Midwest floods of 1993.
(t) Practice – means the wetland and easement area development restoration measures agreed to in the WRPO to accomplish the desired program objectives.
(u) Technical assistance – means the assistance provided to land owners to facilitate implementation of the WRPO.
(v) Wetland – means land that (1) has a predominance of hydric soils; (2) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and (3) does support a prevalence of such vegetation under normal circumstances.
§ 623.3 Eligible person.
To be eligible to participate in the EWRP, a person must be the owner of eligible land for which enrollment is sought and must have been the owner of such land for at least the preceding 12 months prior to the time the enrollment offer is declared by NRCS, as provided in this part. The person shall provide to NRCS adequate proof of ownership of the land. NRCS may waive the 12 month ownership requirement if:
(a) The land was acquired by will or succession as a result of the death of the previous owner; or
(b) Adequate assurances have been presented that the new owner of such land did not acquire such land for the purpose of placing it in the EWRP.
§ 623.4 Eligible land.
(a) Except as otherwise provided in this section, land is eligible for enrollment in the EWRP only if NRCS determines that the land:
(1) Was inundated by the Midwest floods of 1993;
(2) If restored to productive condition, would have a fair market value that is less than the estimated costs of restoring the land to productive condition and repairing related floodwater control systems;
(3) Is likely to have its wetland value restored with minimal costs; and
(4) Is wetland farmed under natural conditions, a farmed wetland or prior converted wetland, or substantially altered lands which are cropland; or
(5) Is wetland that has been restored on the land under a CRP contract, or under a Federal or State wetland restoration program with an easement for a period of less than 30 years.
(b) To be eligible for enrollment in the EWRP, land must also:
(1) Be determined by ASCS to have been annually planted or considered planted to an agricultural commodity in at least 1 of the 5 previous crop years; or
(2) Be land under a CRP contract, in which case, the land need only to have been planted to an agricultural commodity during 2 of the 1981 through 1985 crop years.
(c) Other lands may be considered eligible if the inclusion of such lands in the EWRP easement would significantly add to the functions and values of the wetlands to be restored under this part, as determined by NRCS.
(d) The criteria and procedures contained in 7 CFR part 12 will be used to identify wetlands, converted wetlands, and farmed wetlands.
§ 623.5 Ineligible land.
Notwithstanding any other provisions of this part, the following land is not eligible for enrollment in the EWRP:
(a) Land that contains either timber stands or trees established in connection with a CRP contract;
(b) Lands owned or acquired by an agency of the Federal Government;
(c) Land already subject to a deed restriction prohibiting the production of agricultural commodities or the alternation of existing wetland hydrologic conditions;
(d) Land located between the pre-flood mainstem levees and the river; or
(e) Land that was restored to wetland conditions, as required under Part 12 of this title, to mitigate the conversion of wetland to cropland use.
§ 623.6 Transfer of lands from the CRP to the EWRP.
Land that is subject to an existing CRP contract administered under 7 CFR parts 704 and 1410 may be transferred into the EWRP only if:
(a) The land and landowner(s) meet the requirements of this part; and
(b) The application for transfer into the EWRP is approved by Commodity Credit Corporation (CCC), if found to be in the interest of the program. If such transfer is requested by the owner and approved by CCC, the CRP contract for the property will be terminated or otherwise modified subject to such terms and conditions as are mutually agreed by the landowner, CCC, and NRCS.
§ 623.7 Terms of the easement.
Landowners will grant to NRCS an easement which shall run with the land and be in favor of NRCS and its assigns or delegates. The easement shall require the land to be monitored as specified by the WRPO to promote the purposes of this part, including but not limited to maintenance of the restored wetland for entire length of the easement. Such easement shall: (a) be a permanent reserve interest easement; (b) require that the maintenance of the land be in accordance with the terms of the easement and with the terms of the WRPO and shall be the responsibility of the owners of the property and their successors of any kind, including, but not limited to, the owners’ heirs and assigns; (c) grant to NRCS a right of access in favor of NRCS and its delegates, assigns and successors of any kind, to the portion of the property which is subject to the provisions of the easement. Maintenance of such access shall be the responsibility of the owner and their successors of any kind; (d) reserve to NRCS the right to permit such compatible uses of the easement area as may be identified in the WRPO; (e) reserve to the landowner those compatible uses identified in the WRPO that are permitted to be pursued by the landowner; (f) be signed by each person with an interest of any kind in the land covered by the easement; (g) permanently prohibit use of the easement area for cropland, except to harvest an agricultural commodity planted before the easement is perfected; and (h) require permanent maintenance of the wetland conditions, except in the case of natural disaster.
§ 623.8 Easement value.
NRCS offers for easements will be based on the fair market value, as determined by the NRCS State Conservationist, of the land covered by the easements. Fair market value will be based on post-flood conditions as if reclaimed. Land easement values will be determined by the State Conservationist in consultation with a technical committee. A technical committee shall included representatives of: ASCS, Extension Service, and FWS. Additionally, the State Conservationist may collect information from other sources as he deems necessary. Coordination between States will be provided by the Chief, NRCS.
§ 623.9 Easement priority.
The State Conservationist, in consultation with the FWS and with input from a technical committee and other interested Federal agencies, will establish a ranking process to establish the priority of parcels offered into the EWRP. This process will rank the floodway enhancement and environmental benefits per dollar of government expenditure on restoration and easement purchase. The factors for determining the priority for selection will consider the following:
(a) Protection and enhancement of habitat for migratory birds and wildlife, including the contribution the restoration may make to the recovery of threatened and endangered species,
(b) Floodway expansion,
(c) Proximity to other protected wetlands,
(d) Level of hydrology restored,
(e) Wetland function or values,
(f) Likelihood of successful restoration of wetland values,
(g) Cost of restoration and easement purchase, and
(h) Other factors as determined appropriate by NRCS.
§ 623.10 Application to participate.
(a) A person seeking to enroll land in the EWRP must apply for enrollment on an approved NRCS form. The application to participate must be filed with the local NRCS field office during an announced period for such submissions.
(b) A person submitting an application to participate shall not be obligated to accept an NRCS offer to purchase an easement if one is forthcoming.
(c) An application to participate must be signed by all owners of the property or their duly authorized representative(s).
§ 623.11 Obligations of the landowner.
(a) All owners of land who accept an EWRP offer from NRCS shall:
(1) Comply with the terms of the easement.
(2) Comply with all terms and conditions of the WRPO for the full life of the easement.
(3) Ensure that the easement granted to NRCS is superior to the interest of all other parties who may have an interest in the easement area, except as authorized by NRCS. Such action shall include, but not be limited to, obtaining a written statement of consent to such a superior easement from those holding a security interest or any other encumbrance or the land covered by the easement. Additionally, the landowner shall perfect the easement with superior NRCS interest in accordance with State law.
(4) Agree to the permanent retirement of the aggregate total of crop acreage bases, and allotment and mandatory quota on the farm or ranch in order to maintain the base allotment on quota acres at or below the number of acres of cropland after the easement has been perfected.
(5) Not allow grazing or commercial use of the land covered by an easement except as provided for in the WRPO, or harvesting of any agricultural commodity produced on the land subject to the EWRP easement.
(6) Comply with Federal or State noxious week laws in the manner specified in the WRPO.
(7) Control other identified weed and pest species, in the manner specified in the WRPO.
(8) Be responsible for repairs, improvements, and inspections of the WRPO practices as necessary to maintain existing public drainage systems when the land is restored to the condition required by the terms of the easement, the contract, and the easement.
(9) Be permitted to control public access, in accordance with the WRPO, on the land enrolled in the program.
(10) Implement any additional provisions that are required by NRCS in consultation with FWS in the contract, WRPO, or easement, in order to, as determined by NRCS, facilitate the administration of the EWRP.
(11) Not alter the vegetation, except to harvest already planted crops or forage, or hydrology on such acres subsequent to perfection of the easement by the landowner, except as provided for in the easement or WRPO.
(12) Be responsible for the long-term management of the easement in accordance with the terms of the easement and related agreements including the WRPO. Owners may enter into agreements with Federal or State agencies or private organizations to assist in the management of the easement area. No NRCS funds will be provided to these agencies or organizations for management expenses. Responsibility for management of the easement shall in all cases remain with the owner and the owner’s successors of any kind regardless of whether arrangements are made for third-party management.
(13) Agree that each person with an interest in the land covered by an easement under EWRP shall be jointly and severally responsible for compliance with the WRPO, the easement, the provisions of this part, and for any refunds or payment adjustment which may be required for violation of any terms or conditions of the WRPO, the easement, or provisions of this part.
(14) Refrain from taking any action on the easement area unless specifically authorized in the reserve interest easement or the WRPO; and
(15) Secure any necessary local, State and Federal permits prior to commencing restoration of the designated area.
(b) In addition, program participants and their successors of any kind may:
(1) Not alter wildlife habitat and other natural land features of the enrolled land unless authorized by the WRPO.
(2) Apply pesticides or fertilizers on enrolled land or mow such land, only as provided for in the WRPO.
(3) Not engage in any activities on other land on the farm on which the easement exists that will, as determined by NRCS; (i) alter the flow of surface or subsurface water into or out of the easement area except as specified in the WRPO; or (ii) be otherwise inconsistent with the terms of the easement.
(c) The activities of any person on the property shall be considered for purposes of this section to be the actions of the program participant. However, if the NRCS determines that the activities of the person were beyond the control of the program participants, NRCS may adjust the remedies provided for in this part to the extent determined consistent with program goals. Obligations created by the easement shall run with the land and shall bind all persons having an interest in the property at any time whether such interest is created by death of the owner, sale, assignment, or otherwise.
§ 623.12 Payments to landowners by NRCS.
(a) NRCS will share the cost with landowners of rehabilitating the enrolled land in the EWRP as provided in the WRPO. The amount of the cost-share assistance shall be specified in the contract. Eligible costs for such cost-share assistance by NRCS shall only include those costs which NRCS determines are appropriate and shall be subject to the following restrictions:
(1) The State Conservationist will establish cost-share rates of between 75 to 100 percent of the historical cost of establishing or installing the practices specified in the WRPO; or pay the average cost of establishing the practices specified in the WRPO, based on the historical cost of establishing the practices in the State;
(2) Cost-share payments may be made only upon a determination that an approved practice or an identifiable unit of the practice has been completed in compliance with NRCS approved standards and specifications; and
(3) Cost-share payments may not be made for the maintenance of the practice except as specifically permitted in writing by the State Conservationist.
(b) Notwithstanding paragraph (a)(3) of this section, cost share payments may be authorized for the replacement or restoration of practices for which cost share assistance has been previously allowed under the EWRP, but only if:
(1) Replacement or restoration of the practice is needed to meet the objectives for which the easement was established; and
(2) The failure of the original practice was due to reasons beyond the control of the participant.
(c)(1) NRCS shall pay the amount agreed upon by NRCS and the landowner for the purchase of the easement in a lump-sum amount after the easement is perfected in compliance with State law, except in the case of paragraph (c)(2) of this section.
(2) For all easements, NRCS shall pay no more than 75 percent of the total easement price pending completion of the practices to restore the wetlands as provided under the WRPO. The remaining amount shall be paid when NRCS determines the restoration is complete.
(d) After an easement is perfected, NRCS will reimburse landowners for fair and reasonable expenses incurred for title searches, filing expenses, and related costs, as determined by NRCS.
§ 623.13 Wetlands reserve plan of operations.
(a) After NRCS has accepted the applicant for enrollment in the program, a WRPO will be developed by the landowner and NRCS, in consultation with FWS.
(b) The WRPO shall:
(1) Include an aerial photo displaying the land offered for enrollment;
(2) Specify the manner in which the eligible land shall be restored, operated, and maintained to accomplish the goal of the program, including, but not limited to: (i) measures to control noxious weeds and insect pests in order to comply with applicable Federal, or State noxious weed and pest control laws; and (ii) measures to control other specified species of weeds, insects or pests;
(3) Specify compatible land uses for personal enjoyment for which the landowner may be compensated. These compatible land uses shall be reserved to the landowner in the easement. Such uses may include, among others: (1) recreational use, hunting and fishing; (ii) manage timber production including harvesting; and (iii) managed haying or grazing consistent with the goals of the program;
(4) Set out cost estimates of the practices required by the WRPO, the offer for the easement, and other reimbursement costs;
(5) Identify access routes to be maintained for wetland restoration activities and future management and easement monitoring in connection with the land to be enrolled;
(6) Make provisions deemed necessary for maintaining public drainage systems if present on lands subject to the WRPO;
(7) Contain scheduled implementation dates for restoration practices;
(8) Contain other provisions or limitations as NRCS, in consultation with the FWS, determines to be necessary.
(c) NRCS in consultation with FWS will collect from State or Federal agencies whatever additional information is deemed necessary for the development of the WRPO with the landowner.
(d) The WRPO must be signed by NRCS, FWS, Conservation District (CD), and the landowner(s). However, if agreement between NRCS and FWS, or CD at the local level is not reached within 20 calendar days, the WRPO shall be developed by the State Conservationist of NRCS in consultation with FWS or CD.
(e) The WRPO may require that a temporary vegetative or water cover be established on the property if immediate establishment of a permanent cover is not practicable or otherwise desirable.
(f) The terms of an approved WRPO shall not relieve the program participant of any obligation or term imposed or provided for in the contract, the easement, or this part.
(g) WRPO, where appropriate, will provide for the development of a tree planting plan with the assistance of the FS or State forestry agency.
(h) The WRPO, where appropriate, will provide for the development by NRCS of detailed plans for weed control, structural measures and their operation, vegetation establishment and management, and other measures as needed.
(i) Revisions of the WRPO to enhance or protect the value for which the easement was established may be made at any time at the request of either NRCS, FWS, the owner and upon the concurrence of all three parties.
§ 623.14 Easement modifications.
After the easement has been perfected, no change will be made in the easement without a written request by the participant and the written consent of the Chief. Approval may be granted to achieve the goals of EWRP or facilitate the practical administration and management of the easement area or the program and the approval will not adversely affect the functions and values for which the easement was established. A modified easement shall be perfected in accordance with State law and NRCS superior interest shall be reserved by the landowner in accordance with §§ 623.7 and 623.11(a)(3).
§ 623.15 Transfer of land.
(a) If a new owner purchases or obtains the right and interest in, or right to occupancy of, the land subject to a EWRP easement, such new owner shall be subject to the terms and conditions of the easement. The participant who is the signatory to the easement shall be entitled to receive all remaining payments, if any, for the purchase of the easement. Eligible cost-share payments shall be made to the participants. with respect to costs actually incurred.
(b) Upon the transfer of the property subject to an EWRP easement, any remaining cost-share payments shall be paid to the new owner or purchaser only if the new owner or purchaser becomes a party to the WRPO within 60 days of the perfection of the deed transferring title to the new owner. Such payments shall be paid in the manner agreed to by the participant and the buyer. The new owner or purchaser shall be responsible for assuring completion of all measures and practices required by the contract and the WRPO.
(c) Any transfer of the property prior to the perfection of the easement shall void any NRCS offer or WRPO unless the new owner agrees to accept the offer within 60 days of the perfection of the deed transferring the land to the new owner.
§ 623.16 Monitoring and enforcement of easement terms and conditions.
(a) NRCS or its representative shall be permitted to inspect each easement area at any and all times determined necessary by NRCS to ensure that:
(1) Structural and vegetative restoration work are properly maintained;
(2) The wetlands and adjacent upland habitat of the easement area is being managed as required in the WRPO and the terms of the easement; and
(3) Uses of the area are consistent with the terms and conditions of the easement and the WRPO.
(b) If an owner or other interested party is unwilling to voluntarily correct, in a timely manner, deficiencies in compliance with the terms of the WRPO, the EWRP easement, or any related agreements, NRCS may at the expense of any person who is subject to the EWRP easement correct such deficiency. Such NRCS action shall be in addition to other remedies available to NRCS.
(c) Monitoring and enforcement responsibilities may be delegated by NRCS at any time to other Federal or State agencies. Landowners may transfer management responsibilities only to Federal, State, or local agencies or private organizations that have been approved by NRCS in advance as having the appropriate authority, expertise, and resources necessary to carry out such delegated responsibilities.
§ 623.17 Violations and remedies.
(a) If a violation of the terms and conditions of the contract, the WRPO, or the recorded EWRP easement occurs, the easement shall remain in force and NRCS may:
(1) Require the owner to fully restore the easement area to fulfill the terms and conditions of the easement and WRPO; and
(2) Require the owner, who received payments from NRCS for any purpose under this part, to refund all or part of such payments received together with interest, as determined appropriate by NRCS.
(b) If an owner fails to carry out the terms and conditions of an easement, appropriate legal action may be initiated. The owner of the property shall reimburse NRCS for all costs incurred including, but not limited to, legal fees.
§ 623.18 Access to land.
In order to determine eligibility and compliance with respect to this part, representatives of the Department, or designee thereof, shall have the right of access to:
(a) Land which is the subject of an application made in accordance with this part,
(b) Land which is subject to an easement made in accordance with this part, and
(c) Records of the participant showing status of all ownership interest in lands subject to this part.
§ 623.19 Assignments.
Any participant entitled to any cash payment under this program may assign the right to receive such cash payments, in whole or in part.
§ 623.20 Appeals.
A participant in the EWRP may obtain a review of any administrative determination concerning land eligibility, development of a WRPO, or any adverse determination under this part in accordance with the administrative appeal regulations provided in part 614 of this title.
§ 623.21 Scheme and device.
(a) If it is determined by NRCS that a landowner has employed a scheme or device to defeat the purposes of this part, any part of any program payment otherwise due or paid such landowner during the applicable period may be withheld or be required to be refunded with interest thereon, as determined appropriate by NRCS, and the contract with the landowner may be terminated. In such a case, NRCS may also continue to hold the easement interest acquired under this part.
(b) A scheme or device includes, but is not limited to, coercion, fraud, misrepresentation, depriving any other person of payments for cost-share practices or easements for the purpose of obtaining a payment to which a person would otherwise not be entitled.
(c) An owner of land subject to this part who succeeds to the responsibilities under this part shall report in writing to NRCS any interest of any kind in the land subject to this part that is retained by a previous participant. Such interest includes a present, future or conditional interest, reversionary interest or any option, future or present, with respect to such land and any interest of any lender in such land where the lender has, will, or can obtain, a right of occupancy to such land or an interest in the equity in such land other than an interest in the appreciation in the value of such land occurring after the loan was made. A failure of full disclosure will be considered a scheme or device under this section.
§ 623.22 Filing of false claims.
If it is determined by NRCS that any participant has knowingly supplied false information or has knowingly filed a false claim, such participant shall be ineligible for any payment under this part. False information or false claims include claims for payment for practices which do not meet the specifications of the applicable WRPO. Any amounts paid under these circumstances shall be refunded, together with interest as determined by NRCS, and any amounts otherwise due such participant shall be withheld.
PART 624 – EMERGENCY WATERSHED PROTECTION
§ 624.1 Purpose.
The Natural Resources Conservation Service (NRCS) and United States Forest Service (FS) are responsible for administering the Emergency Watershed Protection (EWP) Program. This part sets forth the requirements and procedures for Federal assistance, administered by NRCS, under Section 216, Public Law 81-516, 33 U.S.C. 701b-1; and Section 403 of the Agricultural Credit Act of 1978, Public Law 95-334, as amended by Section 382, of the Federal Agriculture Improvement and Reform Act of 1996, Public Law 104-127, 16 U.S.C. 2203. The Secretary of Agriculture has delegated the administration of the EWP Program to the Chief of NRCS on state, tribal, and private lands, and Chief of FS on National Forest Systems lands, including any other lands that are administered under a formal agreement with the FS. The FS administers the EWP Program in accordance with the Forest Service Manuals 1950 and 3540, and the Forest Service Handbook 1909.15
§ 624.2 Objective.
The objective of the EWP Program is to assist sponsors, landowners, and operators in implementing emergency recovery measures for runoff retardation and erosion prevention to relieve imminent hazards to life and property created by a natural disaster that causes a sudden impairment of a watershed.
§ 624.3 Scope.
EWP Program technical and financial assistance may be made available to a qualified sponsor, or landowners when a floodplain easement is the selected alternative by the Secretary of Agriculture, upon a qualified sponsor or landowner’s request when a Federal emergency is declared by the President or when a local emergency is declared by the NRCS State Conservationist. The EWP Program is designed for emergency recovery work, including the purchase of floodplain easements. Emergency watershed protection is authorized in the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa.
§ 624.4 Definitions.
(a) Defensibility means the extent to which an action is:
(1) More beneficial than adverse in the extent and intensity of its environmental and economic effects;
(2) In compliance with Federal, State, and local laws;
(3) Acceptable to affected individuals and communities;
(4) Effective in restoring or protecting the natural resources;
(5) Complete with all necessary components included; and
(6) Efficient in achieving the desired outcome.
(b) Exigency means those situations that demand immediate action to avoid potential loss of life or property, including situations where a second event may occur shortly thereafter that could compound the impairment, cause new damages or the potential loss of life if action to remedy the situation is not taken immediately.
(c) Floodplain easement means a reserved interest easement, which is an interest in land, defined and delineated in a deed whereby the landowner conveys all rights and interest in the property to the grantee, but the landowner retains those rights, title, and interest in the property which are specifically reserved to the landowner in the easement deed.
(d) Imminent threat means a substantial natural occurrence that could cause significant damage to property or threaten human life in the near future.
(e)(1) Limited resource area is defined as a county where:
(i) Housing values are less than 75 percent of the State housing value average; and
(ii) Per capita income is 75 percent or less than the National per capita income; and
(iii) Unemployment is at least twice the U.S. average over the past 3 years based upon the annual unemployment figures.
(2) NRCS will use the most recent National census information available when determining paragraphs (e)(1)(i) and (ii) of this section.
(f) Natural occurrence includes, but is not limited to, floods, fires, windstorms, ice storms, hurricanes, typhoons, tornadoes, earthquakes, volcanic actions, slides, and drought.
(g) Project sponsor means a State government or a State agency or a legal subdivision thereof, local unit of government, or any Native American tribe or tribal organization as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b), with a legal interest in or responsibility for the values threatened by a watershed emergency; is capable of obtaining necessary land rights; and is capable of carrying out any operation and maintenance responsibilities that may be required.
(h) Watershed emergency means adverse impacts to resources exist when a natural occurrence causes a sudden impairment of a watershed and creates an imminent threat to life or property.
(i) Watershed impairment means the situation that exists when the ability of a watershed to carry out its natural functions is reduced to the point where an imminent threat to health, life, or property is created. This impairment can also include sediment and debris deposition in floodplains and upland portions of the watershed.
§ 624.5 Coordination.
(a) If the President declares an area to be a major disaster area, NRCS will provide assistance which will be coordinated with the Federal Emergency Management Agency (FEMA) or its designee. FEMA is the lead federal agency for Presidentially-declared natural disasters.
(b) When an NRCS State Conservationist determines that a watershed impairment exists, but the President does not declare an area to be a major disaster area, FEMA does not coordinate assistance. In this situation, NRCS will assume the lead, provide assistance, and coordinate work with the appropriate State office of emergency preparedness and other Federal, tribal, or local agencies involved with emergency activities, as appropriate.
(c) In the case where the watershed impairment exists solely on FS System lands, the FS will determine the existence of the impairment, assume the lead, provide assistance and coordinate work with the appropriate State office of emergency preparedness and other Federal, tribal, or local agencies involved with emergency activities, as appropriate.
§ 624.6 Program administration.
(a) Sponsors. (1) When the State Conservationist declares that a watershed impairment exists, NRCS may, upon request, make assistance available to a sponsor which must be a State or political subdivision thereof, qualified Indian tribe or tribal organization, or unit of local government. Private entities or individuals may receive assistance only through the sponsorship of a governmental entity.
(2) Sponsors must:
(i) Contribute their share of the project costs, as determined by NRCS, by providing funds or certain services necessary to undertake the activity. Contributions that may be applied towards the sponsor’s applicable cost-share of construction costs include:
(A) Cash;
(B) In-kind services such as labor, equipment, design, surveys, contract administration and construction inspection, and other services as determined by the State Conservationist; or
(C) A combination of cash and in-kind services;
(ii) Obtain any necessary real property rights, water rights, and regulatory permits;
(iii) Agree to provide for any required operation and maintenance of the completed emergency measures; and
(iv) Comply with applicable registration and reporting requirements of the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282, as amended), and 2 CFR parts 25 and 170.
(b) Eligibility. NRCS will provide assistance based upon the NRCS State Conservationist’s determination that the current condition of the land or watershed impairment poses a threat to health, life, or property. This assistance includes EWP practices associated with the removal of public health and safety threats, and restoration of the natural environment after disasters, including acquisition of floodplain easements.
(1) Priority EWP assistance is available to alleviate exigency situations. NRCS may approve assistance for temporary correction practices to relieve an exigency situation until a more acceptable solution can be designed and implemented.
(2) Limitations. (i) In cases where the same type of natural event occurs within a 10-year period and a structural measure has been installed or repaired twice within that period using EWP assistance, then EWP assistance is limited to those sites eligible for the purchase of a floodplain easement as described in § 624.10 of this part.
(ii) EWP assistance will not be used to perform operation or maintenance, such as the periodic work that is necessary to maintain the efficiency and effectiveness of a measure to perform as originally designed and installed.
(iii) EWP assistance will not be used to repair, rebuild, or maintain private or public transportation facilities, public utilities, or similar facilities.
(iv) EWP assistance, funded by NRCS, will not be provided on any Federal lands if such assistance is found to augment the appropriations of other Federal agencies.
(v) EWP assistance is not available for repair or rehabilitation of nonstructural management practices, such as conservation tillage and other similar practices.
(3) Repair of structural, enduring, and long-life conservation practices. (i) Sponsors may receive EWP assistance for structural, enduring, and long-life conservation practices including, but not limited to, grassed waterways, terraces, embankment ponds, diversions, and water conservation systems, except where the recovery measures are eligible for assistance under the Emergency Conservation Program administered by the Farm Service Agency.
(ii) EWP assistance may be available for the repair of certain structural practices (i.e., dams and channels) originally constructed under Public Law 83-566; Public Law 78-534; Subtitle H of Title XV of the Agriculture and Food Act of 1981 (16 U.S.C. 3451 et seq., commonly known as the Resource Conservation and Development Program); and the Pilot Watershed Program of the Department of Agriculture Appropriation Act of 1954 (Pub. L. 83-156; 67 Stat. 214). EWP assistance may not be used to perform operation and maintenance activities specified in the agreement for the covered structure project entered into with the eligible local organization responsible for the works of improvement.
(iii) NRCS may authorize EWP assistance for modifying damaged practices when technology advances or construction techniques warrant modifications, including when modifications are the result of federal permitting or other requirements necessary to implement the recovery measure, and will be cost-shared as described in § 624.7.
(iv) EWP assistance is only available when public or private landowners, land managers, land users, or others document they have exhausted or have insufficient funding or other resources available to provide adequate relief from applicable hazards.
(4) Increased level of protection. In cases other than those described in paragraph (b)(3)(iii) of this section, if the sponsor desires to increase the level of protection that would be provided by the EWP practice, the sponsor will be responsible for paying 100 percent of the costs of the upgrade or additional work.
(c) Eligible practices. NRCS will only provide assistance for measures that:
(1) Provide protection from additional flooding or soil erosion; and,
(2) Reduce threats to life or property from a watershed impairment, including sediment and debris removal in floodplains and uplands; and
(3) Restore the hydraulic capacity to the natural environment to the maximum extent practical; and
(4) Are economically and environmentally defensible and technically sound.
(d) Documentation. NRCS will document the economic rationale of proposed practices in appropriate detail before the allocation of emergency funding, including projects under consideration for floodplain easements in § 624.10. Generally, the expected value of the property restored should exceed the cost of emergency measures, including taking into consideration environmental benefits. Documentation will include, but is not limited to:
(1) Number of locations and extent of damage, including environmental and cultural resources at risk, because of the watershed impairment;
(2) Estimated damages to the values at risk if the threat is imminent but not yet realized;
(3) Events that must occur for any imminent threat to be realized and the estimated probability of their occurrence both individually and collectively;
(4) Estimates of the nature, extent, and costs of the emergency practices to be constructed to recover from an actual threat or relieve an imminent threat;
(5) Thorough description of the beneficial and adverse effects on environmental resources, including fish and wildlife habitat;
(6) Description of water quality and water conservation impacts, as appropriate;
(7) Analysis of effects on downstream water rights; and
(8) Other information deemed appropriate by NRCS to describe adequately the environmental impacts to comply with the National Environmental Policy Act, Endangered Species Act, National Historic Preservation Act, and related requirements.
(e) Implementation. When planning emergency recovery practices, NRCS will emphasize measures that are the most economical and are to be accomplished by using the least damaging practical construction techniques and equipment that retain as much of the existing characteristics of the landscape and habitat as possible. Construction of emergency practices may include, but are not limited to, timing of the construction to avoid impacting fish spawning, clearing of right-of-ways, reshaping spoil, debris removal, use of bioengineering techniques, and revegetation of disturbed areas. Mitigation actions needed to offset potential adverse impacts of the EWP Program practices should be planned for installation before, or concurrent with, the installation of the EWP Program practices. In rare occurrences where mitigation cannot be installed concurrently, plans will require mitigation be accomplished as soon as practical.
(f) NRCS may determine that a measure is not eligible for assistance for any reason, including economic and environmental factors or technical feasibility.
§ 624.7 Cost-sharing.
(a) Except as provided in paragraph (b) of this section, the Federal contribution toward the implementation of emergency measures may not exceed 75 percent of the construction cost of such emergency measures, including work done to offset or mitigate adverse impacts as a result of the emergency measures.
(b) If NRCS determines that an area qualifies as a limited resource area, the Federal contribution toward the implementation of emergency measures may not exceed 90 percent of the construction cost of such emergency measures.
§ 624.8 Assistance.
(a) Sponsors must submit a formal request to the State Conservationist for assistance within 60 days of the natural disaster occurrence, or 60 days from the date when access to the sites becomes available. Requests must include a statement that the sponsors understand their responsibilities and are willing to pay its cost-shared percentage as well as information pertaining to the natural disaster, including the nature, location, and scope of the problems and the assistance needed.
(b) On receipt of a formal request for EWP assistance, the State Conservationist or designee shall immediately investigate the emergency situation to determine whether EWP is applicable and to prepare an initial cost estimation for submission to the NRCS Chief or designee. The cost estimation will be submitted no later than 60 days from receipt of the formal request from the sponsor. The State Conservationist will take into account the funding priorities identified in paragraph (c) (3) of this section. The State Conservationist will forward the damage survey report, which provides the information pertaining to proposed EWP practice(s) and indicates the amount of funds necessary to undertake the Federal portion, to the NRCS Chief or designee. This information will be submitted no later that 60 days from receipt of the formal request from the sponsor, or no later than 60 days from the date funding is made available to the State Conservationist, whichever is later. NRCS may not commit funds until notified by the Chief, or designee, of the availability of funds.
(c) Before the release of financial assistance, NRCS will enter into a Cooperative Agreement with a sponsor that specifies the responsibilities of the sponsor under this part, including any required operation and maintenance responsibilities. NRCS will not provide funding for activities undertaken by a sponsor prior to the signing of the agreement between NRCS and the sponsor.
(1) NRCS will only provide funding for work that is necessary to reduce applicable threats.
(2) Efforts must be made to avoid or minimize adverse environmental impacts associated with the implementation of emergency measures, to the extent practicable, giving special attention to protecting cultural resources and fish and wildlife habitat.
(3) Funding priorities for recovery measures. NRCS will provide EWP assistance based on the following criteria, which are ranked in the order of importance:
(i) Exigency situations;
(ii) Sites where there is a serious, but not immediate threat to human life;
(iii) Sites where buildings, utilities, or other important infrastructure components are threatened;
(iv) When reviewing paragraphs (c)(3)(i) through (iii) of this section, NRCS will take into account the following resources as they may affect the priority, including, but not limited to:
(A) Sites inhabited by federally listed threatened and endangered species or containing federally designated critical habitat where the species or the critical habitat could be jeopardized, destroyed, or adversely modified without the EWP practice;
(B) Sites that contain or are in the proximity to cultural sites listed on the National Register of Historic Places where the listed resource would be jeopardized if the EWP practice were not installed;
(C) Sites where prime farmland supporting high value crops is threatened;
(D) Sites containing wetlands that would be damaged or destroyed without the EWP practice;
(E) Sites that have a major effect on water quality; and
(F) Sites containing unique habitat, including but not limited to, areas inhabited by State-listed threatened and endangered species, fish and wildlife management areas, or State-identified sensitive habitats; and
(v) Other funding priorities established by the Chief of NRCS.
§ 624.9 Time limits.
Funds must be obligated by the State Conservationist and construction completed within 220 calendar days after the date funds are committed to the State Conservationist, except for exigency situations in which case the construction must be completed within 10 days after the date the funds are committed.
§ 624.10 Floodplain easements.
(a) General. NRCS may purchase floodplain easements as an emergency measure. NRCS will only purchase easements from landowners on a voluntary basis.
(b) Floodplain easements. (1) Floodplain easements established under this part will be:
(i) Held by the United States, through the Secretary of Agriculture;
(ii) Administered by NRCS or its designee; and
(iii) Perpetual in duration;
(2) Eligible land. NRCS may determine land is eligible under this section if:
(i) The floodplain lands were damaged by flooding at least once within the previous calendar year or have been subject to flood damage at least twice within the previous 10 years; or
(ii) Other lands within the floodplain would contribute to the restoration of the flood storage and flow, erosion control, or that would improve the practical management of the easement; or
(iii) Lands would be inundated or adversely impacted as a result of a dam breach.
(3) Ineligible land. NRCS may determine that land is ineligible under this section if:
(i) Implementation of restoration practices would be futile due to “on-site” or “off-site” conditions;
(ii) The land is subject to an existing easement or deed restriction that provides sufficient protection or restoration, as determined by the Chief of NRCS, of the floodplain’s functions and values; or
(iii) The purchase of an easement would not meet the purposes of this part.
(4) Compensation for easements. NRCS will determine easement compensation in accordance with applicable regulation and other law.
(5) NRCS will not acquire any easement unless the landowner accepts the amount of the easement payment that is offered by NRCS. NRCS reserves the right not to purchase an easement if the easement compensation for a particular easement would be too expensive, as determined by NRCS.
(6) NRCS may provide up to 100 percent of the restoration and enhancement costs of the easement. NRCS may enter into an agreement with the landowner or another third party to ensure that identified practices are implemented. NRCS, the landowner, or other designee may implement identified practices. Restoration and enhancement efforts may include both structural and non-structural practices. An easement acquired under this part shall provide NRCS with the full authority to restore, protect, manage, maintain, and enhance the functions and values of the floodplain.
(7) The landowner must:
(i) Comply with the terms of the easement;
(ii) Comply with all terms and conditions of any associated agreement; and
(iii) Convey title to the easement that is acceptable to NRCS and warrant that the easement is superior to the rights of all others, except for exceptions to the title that are deemed acceptable by NRCS.
(8) Structures, including buildings, within the floodplain easement may be demolished and removed, or relocated outside the 100-year floodplain or dam breach inundation area.
(c) The Chief of NRCS may modify or terminate an easement if, pursuant to 16 U.S.C. 2203(b), the Chief determines the modification or termination is in the public interest and will address a compelling public need for which there is no practicable alternative.
(d) Enforcement. (1) In the event of a violation of an easement, the violator will be given reasonable notice and an opportunity to correct the violation within 30 days of the date of the notice, or such additional time as NRCS may allow.
(2) NRCS reserves the right to enter upon the easement area at any time to remedy deficiencies or easement violations. Such entry may be made at the discretion of NRCS when such actions are deemed necessary to protect important floodplain functions and values or other rights of the United States under the easement. The landowner will be liable for any costs incurred by the United States as a result of the landowner’s negligence or failure to comply with easement or agreement obligations.
(3) In addition to any and all legal and equitable remedies as may be available to the United States under applicable law, NRCS may withhold any easement and cost-share payments owing to landowners at any time there is a material breach of the easement covenants or any associated agreements. Such withheld funds may be used to offset costs incurred by the United States, in any remedial actions, or retained as damages pursuant to court order or settlement agreement.
(4) NRCS will be entitled to recover any and all administrative and legal costs, including attorney’s fees or expenses, associated with any enforcement or remedial action.
(5) On the violation of the terms or conditions of the easement or related agreement, the easement shall remain in force, and NRCS may require the landowner to refund all or part of any payments received by the landowner under this Part, together with interest thereon as determined appropriate by NRCS.
(6) All the general penal statutes relating to crimes and offenses against the United States shall apply in the administration of floodplain easements acquired under this part.
§ 624.11 Waivers.
To the extent allowed by law, the NRCS Deputy Chief for Programs may waive any provision of these regulations when the agency makes a written determination that such waiver is in the best interest of the Federal government.
PART 625 – HEALTHY FORESTS RESERVE PROGRAM
§ 625.1 Purpose and scope.
(a) The purpose of the Healthy Forests Reserve Program (HFRP) is to assist landowners, on a voluntary basis, in restoring, enhancing, and protecting forestland resources on private lands through easements, 30-year contracts, and 10-year cost-share agreements.
(b) The objectives of HFRP are to:
(1) Promote the recovery of endangered and threatened species under the Endangered Species Act of 1973 (ESA);
(2) Improve plant and animal biodiversity; and
(3) Conserve forest land that provides habitat for species listed under section 4 of ESA, a candidate for such listing, State-listed species or species of greatest conservation need as identified in a State wildlife action plan, or species identified by the Chief for special consideration for funding; and
(4) Enhance carbon sequestration.
(c) The regulations in this part set forth the policies, procedures, and requirements for the HFRP as administered by the Natural Resources Conservation Service (NRCS) for program implementation and processing applications for enrollment.
(d) The Chief may implement HFRP in any of the 50 States, District of Columbia, Commonwealth of Puerto Rico, Guam, Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands.
§ 625.2 Definitions.
The following definitions will be applicable to this part:
30-year Contract means a contract that is limited to acreage owned by Indian tribes. The 30-year contract is not eligible for use on tribal lands held in trust or subject to Federal restrictions against alienation.
Acreage Owned by Indian Tribes means:
(1) Land that is held in trust by the United States for Indian Tribes or individual Indians;
(2) Land, the title to which is held by Indian Tribes or individual Indians subject to Federal restrictions against alienation or encumbrance;
(3) Land that is subject to rights of use, occupancy, and benefit of certain Indian Tribes;
(4) Land that is held in fee title by an Indian Tribe; or
(5) Land that is owned by a native corporation formed under section 17 of the Act of June 18, 1934, (commonly known as the `Indian Reorganization Act’) (25 U.S.C. 477) or section 8 of the Alaska Native Claims Settlement Act (43 U.S.C. 1607); or
(6) A combination of one or more types of land described in paragraphs (1) through (5) of this definition.
Biodiversity (Biological Diversity) means the variety and variability among living organisms and the ecological complexes in which they live.
Candidate Conservation Agreement with Assurances (CCAA) means a voluntary arrangement between the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS), and cooperating non-Federal landowners under the authority of section 10(a)(1) of the Endangered Species Act of 1973, 16 U.S.C. 1539(a)(1). Under the CCAA and an associated enhancement of survival permit, the non-Federal landowner implements actions that are consistent with the conditions of the permit. CCAA with FWS are also subject to regulations at 50 CFR 17.22(d) for endangered species or 50 CFR 17.32(d) for threatened species, or applicable subsequent regulations.
Carbon sequestration means the long-term storage of carbon in soil (as soil organic matter) or in plant material (such as in trees).
Chief means the Chief of the Department of Agriculture (USDA) NRCS, or designee.
Confer means to discuss for the purpose of providing information; to offer an opinion for consideration; or to meet for discussion, while reserving final decision-making authority with NRCS.
Conservation practice means one or more conservation improvements, measures, and activities, including structural practices, and measures, land management practices, vegetative treatments, forest management, practices to increase carbon sequestration, practices to improve biological diversity, and other improvements that benefit the eligible land and optimize environmental benefits, planned and applied according to NRCS standards and specifications.
Conservation treatment means any and all conservation practices, measures, activities, and works of improvement that have the purpose of alleviating resource concerns, solving or reducing the severity of natural resource use problems, or taking advantage of resource opportunities, including the restoration, enhancement, maintenance, or management of habitat conditions for HFRP purposes.
Coordination means to obtain input and involvement from others while reserving final decision-making authority with NRCS.
Cost-share agreement means a legal document that specifies the rights and obligations of any participant accepted into the program. A HFRP cost-share agreement is a binding agreement for the transfer of assistance from USDA to the participant to share in the costs of applying conservation. A cost-share agreement under HFRP has a duration of 10-years.
Cost-share payment means the payment made by NRCS to a program participant or vendor to achieve the restoration, enhancement, and protection goals of enrolled land in accordance with the HFRP restoration plan.
Easement means a conservation easement, which is an interest in land defined and delineated in a deed whereby the landowner conveys certain rights, title, and interests in a property to the United States for the purpose of protecting the forest ecosystem and the conservation values of the property.
Easement area means the land encumbered by an easement.
Easement payment means the consideration paid to a landowner for an easement conveyed to the United States under the HFRP.
Fish and Wildlife Service is an agency of the Department of Interior.
Forest Service is an agency of USDA.
Forest ecosystem means a dynamic set of living organisms, including plants, animals, and microorganisms interacting among themselves and with the environment in which they live. A forest ecosystem is characterized by predominance of trees, and by the fauna, flora, and ecological cycles (energy, water, carbon, and nutrients).
HFRP restoration plan means the document that identifies the conservation treatments that are scheduled for application to land enrolled in HFRP in accordance with NRCS standards and specifications.
Indian Tribe means Indian Tribe, band, Nation, Pueblo, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601-1629h), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
Landowner means an individual or entity having legal ownership of land. The term landowner may also include all forms of collective ownership including joint tenants, tenants in common, and life tenants.
Landowner protections means protections and assurances made available by NRCS to HFRP participants, when requested, and whose voluntary conservation activities result in a net conservation benefit for listed, candidate, or other species and meet other requirements of the program. These Landowner Protections are subject to a HFRP restoration plan and associated cost-share agreement, 30-year contract, or easement being properly implemented. Landowner protections made available by the Secretary of Agriculture to HFRP participants may include an incidental take authorization received by NRCS from FWS or NMFS, or may be provided by a Safe Harbor Agreement (SHA) or CCAA directly between the HFRP participant and FWS or NMFS, as appropriate.
Liquidated damages means a sum of money stipulated in the HFRP restoration agreement that the participant agrees to pay NRCS if the participant fails to adequately complete the terms of the restoration agreement. The sum represents an estimate of the expenses incurred by NRCS to service the restoration agreement, and reflects the difficulties of proof of loss and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy.
Maintenance means work performed to keep the applied conservation practice functioning for the intended purpose during its life span. Maintenance includes work to prevent deterioration of the practice, repairing damage, or replacement of the practice to its original condition if one or more components fail.
Measure means one or more specific actions that is not a conservation practice, but has the effect of alleviating problems or improving the treatment of the resources.
National Marine Fisheries Service is an agency of the United States Department of Commerce.
Natural Resources Conservation Service is an agency of USDA which has the responsibility for administering HFRP.
Participant means a person, entity, or Indian tribe who is a party to a 10-year cost share agreement, 30-year contract, or an agreement to purchase an easement.
Private land means land that is not owned by a local, State, or Federal governmental entity, and includes land that meets the definition of “acreage owned by Indian tribes.”
Restoration means implementing any conservation practice (vegetative, management, or structural) or measure that improves forest ecosystem values and functions (native and natural plant communities).
Restoration agreement means a cost-share agreement between the program participant and NRCS to restore, enhance, and protect the functions and values of a forest ecosystem for the purposes of HFRP under either an easement, 30-year contract, or a 10-year cost-share agreement enrollment option.
Safe Harbor Agreement means a voluntary arrangement between FWS or NMFS and cooperating non-Federal landowners under the authority of section 10(a)(1) of the Endangered Species Act of 1973, 16 U.S.C. 1539(a)(1). Under the SHA and an associated enhancement of survival permit, the private property owner implements actions that are consistent with the conditions of the permit. SHAs with FWS are also subject to regulations at 50 CFR 17.22(c) for endangered species or 50 CFR 17.32(c) for threatened species, or applicable subsequent regulations.
State-listed species means a species listed as threatened or endangered under State endangered species laws, a candidate for such listing, or a species listed in a State Wildlife Action Plan as a Species of Greatest Conservation Need.
Sign-up notice means the public notification document that NRCS provides to describe the particular requirements for a specific HFRP sign-up.
State Conservationist means the NRCS employee authorized to implement HFRP and direct and supervise NRCS activities in a State, Caribbean Area, or Pacific Islands Area.
Technical service provider means an individual, private-sector entity, or public agency certified by NRCS to provide technical services to program participants in lieu of or on behalf of NRCS.
§ 625.3 Administration.
(a) The regulations in this part will be administered under the general supervision and direction of the Chief.
(b) The Chief may modify or waive a provision of this part if the Chief determines that the application of such provision to a particular limited situation is inappropriate and inconsistent with the goals of the program. This authority cannot be further delegated. The Chief may not modify or waive any provision of this part which is required by applicable law.
(c) No delegation in this part to lower organizational levels will preclude the Chief from determining any issue arising under this part or from reversing or modifying any determination arising from this part.
(d) The State Conservationist will develop a list of eligible restoration practices, payment rates and cost-share percentages, a priority ranking process, and any related technical matters.
(e) NRCS will coordinate with FWS and NMFS in the implementation of the program and in establishing program policies. In carrying out this program, NRCS may confer with private forest landowners, including Indian tribes, the Forest Service and other Federal agencies, State fish and wildlife agencies, State forestry agencies, State environmental quality agencies, other State conservation agencies, and nonprofit conservation organizations. No determination by the FWS, NMFS, Forest Service, any Federal, State, or tribal agency, conservation district, or other organization will compel NRCS to take any action which NRCS determines will not serve the purposes of the program established by this part.
§ 625.4 Program requirements.
(a) General. Under HFRP:
(1) NRCS will purchase conservation easements from, or enter into 30-year contracts or 10-year cost-share agreements with, eligible landowners who voluntarily cooperate in the restoration and protection of forestlands and associated lands.
(2) A landowner will participate in HFRP by agreeing to the implementation of an HFRP restoration plan, the effect of which is to restore, protect, enhance, maintain, and manage the habitat conditions necessary to increase the likelihood of recovery of listed species under the ESA, or measurably improve the well-being of species that are candidates for such listing, that is a candidate for listing under section 4 of ESA, State-listed species or species deemed of greatest conservation need by a State wildlife action plan, or species identified by the Chief for special consideration for funding.
(3) NRCS may provide cost-share assistance for the activities that promote the restoration, protection, enhancement, maintenance, and management of forest ecosystem functions and values. Specific restoration, protection, enhancement, maintenance, and management activities may be undertaken by the landowner or other NRCS designee.
(b) Landowner eligibility. To be eligible to enroll an easement in the HFRP, an individual or entity must:
(1) Be the landowner of eligible land for which enrollment is sought; and
(2) Agree to provide such information to NRCS, as the agency deems necessary or desirable, to assist in its determination of eligibility for program benefits and for other program implementation purposes.
(c) Eligible land. (1) NRCS, in coordination with FWS or NMFS, will determine whether land is eligible for enrollment and whether once found eligible, the lands may be included in the program based on the likelihood of successful restoration, enhancement, and protection of forest ecosystem functions and values when considering the cost of acquiring the easement, 30-year contract, or 10-year cost share agreement, and the restoration, protection, enhancement, maintenance, and management costs.
(2) Land will be considered eligible for enrollment in HFRP only if NRCS determines that such private forest land or private land being restored to forest land will contribute to the maintenance, restoration, or enhancement of the habitat or measurably:
(i) Increase the likelihood of recovery for a selected species listed under section 4 of ESA; or
(ii) Improve the well-being of a selected species that is a candidate for listing under section 4 of ESA, or the selected species is a State-listed species, or deemed a species of greatest conservation need by a State wildlife action plan, or is a species identified by the Chief for special consideration for funding.
(3) NRCS may also enroll land adjacent to eligible land if the enrollment of such adjacent land would contribute significantly to the practical administration of the easement area, but not more than it determines is necessary for such contribution.
(4) To be enrolled in the program, eligible land must be configured in a size and with boundaries that allow for the efficient management of the area for easement purposes and otherwise promote and enhance program objectives.
(5) In the case of acreage owned by an Indian tribe, NRCS may enroll acreage into the HFRP which is privately owned by either the tribe or an individual.
(d) Ineligible land. The following land is not eligible for enrollment in the HFRP:
(1) Land owned by the United States, States, or units of local government;
(2) Land subject to an easement or deed restriction that already provides for the protection of fish and wildlife habitat or that would interfere with HFRP purposes, as determined by NRCS;
(3) Land that would not be eligible for HFRP under paragraphs (c)(1) through (c)(5); and
(4) Land where the purposes of HFRP would be undermined due to onsite or offsite conditions, such as risk of hazardous substances, unacceptable encumbrances to title, permitted or existing rights of way, infrastructure development, or adjacent land uses.
§ 625.5 Application procedures.
(a) Sign-up process. As funds are available, the Chief will solicit project proposals from the State Conservationist. The State Conservationist may consult with other agencies at the State, Federal, and local levels to develop proposals. The State Conservationist will submit the proposal(s) to the Chief for funding selection. Upon selection for funding, the State Conservationist will issue a public sign-up notice which will announce and explain the rationale for decisions based on the following information:
(1) The geographic scope of the sign-up;
(2) Any additional program eligibility criteria that are not specifically listed in this part;
(3) Any additional requirements that participants must include in their HFRP applications that are not specifically identified in this part;
(4) Information on the priority order of enrollment for funding;
(5) An estimate of the total funds NRCS expects to obligate during a given sign-up; and
(6) The schedule for the sign-up process, including the deadline(s) for applying.
(b) Application for participation. To apply for enrollment through an easement, 30-year contract, or 10-year cost-share agreement, a landowner must submit an application for participation in the HFRP during an announced period for such sign-up.
(c) Preliminary agency actions. By filing an application for participation, the applicant consents to an NRCS representative entering upon the land for purposes of determining land eligibility, and for other activities that are necessary or desirable for NRCS to make offers of enrollment. The applicant is entitled to accompany an NRCS representative on any site visits.
(d) Voluntary reduction in compensation. In order to enhance the probability of enrollment in HFRP, an applicant may voluntarily offer to accept a lesser payment than is being offered by NRCS. Such offer and subsequent payments may not be less than those rates set forth in § 625.8 and § 625.10 of this part.
§ 625.6 Establishing priority for enrollment in HFRP.
(a) Ranking considerations. Based on the specific criteria set forth in a sign-up announcement and the applications for participation, NRCS, in coordination FWS and NMFS, may consider the following factors to rank properties:
(1) Estimated conservation benefit to habitat required by threatened or endangered species listed under section 4 of the ESA;
(2) Estimated conservation benefit to habitat required by species not listed as endangered or threatened under section 4 of the ESA but that are candidates for such listing, State-listed species, or deemed of greatest conservation need under a State wildlife action plan, or species identified by the Chief for special consideration for funding;
(3) Estimated improvement of biological diversity, if enrolled;
(4) Potential for increased capability of carbon sequestration, if enrolled;
(5) Availability of contribution of non-Federal funds;
(6) Significance of forest ecosystem functions and values;
(7) Estimated cost-effectiveness of the particular restoration cost-share agreement, contract, or easement, and associated HFRP restoration plan; and
(8) Other factors identified in a HFRP sign-up notice.
(b) NRCS may place higher priority on certain forest ecosystems based regions of the State or multi-State area where restoration of forestland may better achieve NRCS programmatic and sign-up goals and objectives.
(c) Notwithstanding any limitation of this part, NRCS may enroll eligible lands at any time in order to encompass project areas subject to multiple land ownership or otherwise to achieve program objectives. Similarly, NRCS may, at any time, exclude otherwise eligible lands if the participation of the adjacent landowners is essential to the successful restoration of the forest ecosystem and those adjacent landowners are unwilling to participate.
(d) If available funds are insufficient to accept the highest ranked application, and the applicant is not interested in reducing the acres offered to match available funding, NRCS may select a lower ranked application that can be fully funded. In cases where HFRP funds are not sufficient to cover the costs of an application selected for funding, the applicant may lower the cost of the application by changing the duration of the easement or agreement or reducing the acreage offered, unless these changes result in a reduction of the application ranking score below that of the score of the next available application on the ranking list.
§ 625.7 Enrollment of easements, contracts, and agreements.
(a) Offers of enrollment. Based on the priority ranking, NRCS will notify an affected landowner of tentative acceptance into the program. This notice of tentative acceptance into the program does not bind NRCS or the United States to enroll the proposed project in HFRP, nor does it bind the landowner to convey an easement, or to contract or agree to HFRP activities. The letter notifies the landowner that NRCS intends to continue the enrollment process on their land unless otherwise notified by the landowner.
(b) Acceptance of offer of enrollment. An agreement to purchase or a restoration cost-share agreement or contract will be presented by NRCS to the landowner which will describe the easement, agreement, or contract area; the easement, agreement, or contract terms and conditions; and other terms and conditions for participation that may be required by NRCS.
(c) Effect of the acceptance of the offer. After the agreement to purchase or restoration cost-share agreement or contract is executed by NRCS and the landowner, the land will be considered enrolled in the HFRP. For easements, NRCS will proceed with various easement acquisition activities, which may include conducting a survey of the easement area, securing necessary subordination agreements, procuring title insurance, and conducting other activities necessary to record the easement or implement the HFRP, as appropriate for the enrollment option being considered. For restoration cost-share agreements and contracts, the landowner will proceed to implement the restoration plan with technical assistance and cost-share from NRCS.
(d) Withdrawal of offers. Prior to execution of an agreement to purchase, a restoration cost-share agreement, or contract between the United States and the landowner, NRCS may withdraw the land from enrollment at any time due to lack of availability of funds, inability to clear title, or other reasons. An agreement to purchase will be void, and the offer withdrawn, if not executed by the landowner within the time specified.
§ 625.8 Compensation for easements and 30-year contracts.
(a) Determination of easement payment rates. (1) NRCS will offer to pay not less than 75 percent, nor more than 100 percent of the fair market value of the enrolled land during the period the land is subject to the easement, less the fair market value of the land encumbered by the easement for permanent easements or easements for the maximum duration allowed under State law.
(2) NRCS will offer to pay not more than 75 percent of the fair market value of the enrolled land, less the fair market value of the land encumbered by the easement for 30-year easements or 30-year contracts.
(b) Acceptance and use of contributions. NRCS may accept and use contributions of non-Federal funds to make payments under this section.
(c) Acceptance of offered easement or 30-year contract compensation. (1) NRCS will not acquire any easement or 30-year contract unless the landowner accepts the amount of the payment that is offered by NRCS. The payment may or may not equal the fair market value of the interests and rights to be conveyed by the landowner under the easement or 30-year contract. By voluntarily participating in the program, a landowner waives any claim to additional compensation based on fair market value.
(2) Payments may be made in a single payment or through annual payment, as agreed to between NRCS and the landowner.
(d) If a landowner believes they may be eligible for a bargain sale tax deduction that is the difference between the fair market value of the easement conveyed to the United States and the easement payment made to the landowner, it is the landowner’s responsibility to discuss those matters with the Internal Revenue Service. NRCS disclaims any representations concerning the tax implications of any easement or cost-share transaction.
(e) The amount, terms, and conditions of the cost-share assistance will be subject to the following restrictions on the costs of establishing or installing NRCS-approved conservation practices or implementing measures specified in the HFRP restoration plan:
(1) On enrolled land subject to a permanent easement or an easement for the maximum duration allowed under State law, NRCS will offer to pay not less than 75 percent nor more than 100 percent of the actual or
(2) On enrolled land subject to a 30-year easement or 30-year contract, NRCS will offer to pay not more than 75 percent of the actual or average cost.
(f) On enrolled land subject to a 10-year cost-share agreement without an associated easement, NRCS will offer to pay not more than 50 percent of the actual or average costs.
(a) The restoration plan developed under § 625.13 forms the basis for the 10-year cost-share agreement and its terms are incorporated therein.
(b) A 10-year cost-share agreement will:
(1) Incorporate all portions of a restoration plan;
(2) Be for a period of 10 years;
(3) Include all provisions as required by law or statute;
(4) Specify the requirements for operation and maintenance of applied conservation practices;
(5) Include any participant reporting and recordkeeping requirements to determine compliance with the agreement and HFRP;
(6) Be signed by the participant;
(7) Identify the amount and extent of cost-share assistance that NRCS will provide for the adoption or implementation of the approved conservation treatment identified in the restoration plan; and
(8) Include any other provision determined necessary or appropriate by the NRCS representative.
(c) Once the participant and NRCS have signed a 10-year cost-share agreement, the land will be considered enrolled in HFRP.
(d) The State Conservationist may, by mutual agreement with the parties to the 10-year cost-share agreement, consent to the termination of the restoration agreement where:
(1) The parties to the 10-year cost-share agreement are unable to comply with the terms of the restoration agreement as the result of conditions beyond their control;
(2) Compliance with the terms of the 10-year cost-share agreement would work a severe hardship on the parties to the agreement; or
(3) Termination of the 10-year cost-share agreement would, as determined by the State Conservationist, be in the public interest.
(e) If a 10-year cost-share agreement is terminated in accordance with the provisions of this section, the State Conservationist may allow the participants to retain any cost-share payments received under the 10-year cost-share agreement where forces beyond the participant’s control prevented compliance with the agreement.
(a) NRCS may share the cost with landowners of restoring land enrolled in HFRP as provided in the HFRP restoration plan. The HFRP restoration plan may include periodic manipulation to maximize fish and wildlife habitat and preserve forest ecosystem functions and values, and measures that are needed to provide the Landowner Protections under section 7(b)(4) or section 10(a)(1) of the ESA, including the cost of any permit.
(b) Landowner Protections may be made available to landowners enrolled in the HFRP who agree, for a specified period, to restore, protect, enhance, maintain, and manage the habitat conditions on their land in a manner that is reasonably expected to result in a net conservation benefit that contributes to the recovery of listed species under the ESA, candidate, or other species covered by this regulation. These protections operate with lands enrolled in the HFRP and are valid for as long as the landowner is in compliance with the terms and conditions of such assurances, any associated permit, the easement, contract, or the restoration agreement.
(c) If the Landowner Protections, or any associated permit, require the adoption of a conservation practice or measure in addition to the conservation practices and measures identified in the applicable HFRP restoration plan, NRCS and the landowner will incorporate the conservation practice or measure into the HFRP restoration plan as an item eligible for cost-share assistance.
(d) Failure to perform planned management activities can result in violation of the easement, 30-year contract, 10-year cost-share agreement, or the agreement under which Landowner Protections have been provided. NRCS will work with landowners to plan appropriate management activities.
(e) The amount and terms and conditions of the cost-share assistance will be subject to the following restrictions on the costs of establishing or installing NRCS approved conservation practices or implementing measures specified in the HFRP restoration plan:
(1) On enrolled land subject to a permanent easement or an easement for the maximum duration allowed under State law, NRCS will offer to pay not less than 75 percent nor more than 100 percent of the average cost, and;
(2) On enrolled land subject to a 30-year easement or 30-year contract, NRCS will offer to pay not more than 75 percent of the average cost.
(f) On enrolled land subject to a 10-year cost-share agreement without an associated easement, NRCS will offer to pay not more than 50 percent of the average costs.
(g) Cost-share payments may be made only upon a determination by NRCS that an eligible conservation practice or measure has been established in compliance with appropriate standards and specifications. Identified conservation practices and measures may be implemented by the landowner or other designee.
(h) Cost-share payments may be made for the establishment and installation of additional eligible conservation practices and measures, or the maintenance or replacement of an eligible conservation practice or measure, but only if NRCS determines the practice or measure is needed to meet the objectives of HFRP, and the failure of the original conservation practices or measures was due to reasons beyond the control of the landowner.
§ 625.11 Easement participation requirements.
(a) To enroll land in HFRP through a permanent easement, an easement for the maximum duration allowed under State law, or 30-year enrollment option, a landowner will grant an easement to the United States. An Indian Tribe may enroll in HFRP through a 10-year cost-share agreement as specified in § 625.9, a 30-year contract as specified in § 625.12, or a permanent easement as specified in this part. The easement deed will require that the easement area be maintained in accordance with HFRP goals and objectives for the duration of the term of the easement, including the restoration, protection, enhancement, maintenance, and management of habitat and forest ecosystem functions and values.
(b) For the duration of its term, the easement will require, at a minimum, that the landowner and the landowner’s heirs, successors, and assignees, will cooperate in the restoration, protection, enhancement, maintenance, and management of the land in accordance with the easement and with the terms of the HFRP restoration plan. In addition, the easement will grant to the United States, through NRCS:
(1) A right of access to the easement area by NRCS or its representative;
(2) The right to determine and permit compatible uses on the easement area and specify the amount, method, timing, intensity, and duration of the compatible use, if such use is consistent with the long-term protection and enhancement of the purposes for which the easement was established;
(3) The rights, title, and interest to the easement area as specified in the conservation easement deed; and
(4) The right to perform restoration, protection, enhancement, maintenance, and management activities on the easement area.
(c) The landowner will convey title to the easement which is acceptable to NRCS. The landowner will warrant that the easement granted to the United States is superior to the rights of all others, except for exceptions to the title which are deemed acceptable by NRCS.
(d) The landowner will:
(1) Comply with the terms of the easement;
(2) Comply with all terms and conditions of any associated agreement or contract;
(3) Agree to the long-term restoration, protection, enhancement, maintenance, and management of the easement in accordance with the terms of the easement and related agreements;
(4) Have the option to enter into an agreement with governmental or private organizations to assist in carrying out any landowner responsibilities on the easement area; and
(5) Agree that each person who is subject to the easement will be jointly and severally responsible for compliance with the easement and the provisions of this part, and for any refunds or payment adjustment which may be required for violation of any terms or conditions of the easement or the provisions of this part.
§ 625.12 30-year contracts.
(a) To enroll land in HFRP through the 30-year contract option, a landowner will sign a 30-year contract with NRCS. The contract will require that the contract area be maintained in accordance with HFRP goals and objectives for the duration of the term of the contract, including the restoration, protection, enhancement, maintenance, and management of habitat and forest ecosystem functions and values.
(b) For the duration of its term, the 30-year contract will require, at a minimum, that the landowner and the landowner’s assignees, will cooperate in the restoration, protection, enhancement, maintenance, and management of the land in accordance with the contract and with the terms of the HFRP restoration plan. In addition, the contract will grant to the United States through NRCS:
(1) A right of access to the contract area by NRCS or its representative;
(2) The right to allow such activities by the landowner as hunting and fishing, managed timber harvest, or periodic haying or grazing, if such use is consistent with the long-term protection and enhancement of the purposes for which the contract was established;
(3) The right to specify the amount, method, timing, intensity, and duration of the activities listed in paragraph (b)(2) of this section, as incorporated into the terms of the contract; and
(4) The right to perform restoration, protection, enhancement, maintenance, and management activities on the contract area.
(c) The landowner will:
(1) Comply with the terms of the contract;
(2) Comply with all terms and conditions of any associated agreement or contract; and
(3) Agree to the long-term restoration, protection, enhancement, maintenance, and management of the contract area in accordance with the terms of the contract and related agreements.
(d) A 30-year contract will:
(1) Be signed by the participant;
(2) Identify the amount and extent of cost-share assistance that NRCS will provide for the adoption or implementation of the approved conservation treatment identified in the restoration plan; and
(3) Include any other provision determined necessary or appropriate by the NRCS representative.
(e) Once the landowner and NRCS have signed a 30-year contract, the land will be considered enrolled in HFRP.
§ 625.13 The HFRP restoration plan development and Landowner Protections.
(a) The development of the HFRP restoration plan will be made through an NRCS representative, who will confer with the program participant and with the FWS and NMFS, as appropriate.
(b) The HFRP restoration plan will specify the manner in which the enrolled land under easement, 30-year contract, or 10-year cost-share agreement will be restored, protected, enhanced, maintained, and managed to accomplish the goals of the program.
(c) Eligible restoration practices and measures may include land management, vegetative, and structural practices and measures that will restore and enhance habitat conditions for listed species, candidate, State-listed, and other species identified by the Chief for special funding consideration. To the extent practicable, eligible practices and measures will improve biodiversity and optimize the sequestration of carbon through management that maintains diverse and high quality native forests to accomplish the goals of the restoration plan. NRCS, in coordination with FWS and NMFS, will determine the conservation practices and measures. The State Conservationist will develop and make available to the public a list of eligible practices, and will determine payment rates and cost-share percentages within statutory limits.
(d) Landowner protections. An HFRP participant who enrolls land in HFRP and whose conservation treatment results in a net conservation benefit for listed, candidate, or other species, may request such Landowner Protections as follows:
(1) Incidental take authorization.
(i) NRCS will extend to participants the incidental take authorization received by NRCS from FWS or NMFS through biological opinions issued as part of the interagency cooperation process under section 7(a)(2) of the ESA;
(ii) NRCS will provide assurances, as a provision of the restoration plan, that when a participant is provided authorization for incidental take of a listed species, NRCS will not require management activities related to that species to be undertaken in addition to or different from those specified in the restoration plan without the participant’s consent;
(iii) The program participant will be covered by the authorization to NRCS for incidental take associated with restoration actions or management activities. The incidental take may include a return to baseline conditions at the end of the applicable period, if the landowner so desires.
(iv) Provided the landowner has acted in good faith and without intent to violate the terms of the HFRP restoration plan, NRCS will pursue all appropriate options with the participant to avoid termination in the event of the need to terminate an HFRP restoration plan that is being properly implemented; and
(v) If the 30-year contract or 10-year restoration cost-share agreement is terminated, any requested assurances, including an incidental take authorization under this section, provided by NRCS will be voided. As such, the landowner will be responsible to FWS or NMFS for any violations of the ESA.
(2) SHA or CCAA.
(i) NRCS will provide technical assistance to help participants design and use their HFRP restoration plan for the dual purposes of qualifying for HFRP financial assistance and as a basis for entering into a SHA or CCAA with FWS or NMFS and receiving an associated permit under section 10(a)(1)(a) of the ESA.
(ii) In exchange for a commitment to undertake conservation measures, the landowner may receive a permit under section 10 of the ESA from FWS or NMFS authorizing incidental take of species covered by the SHA or CCAA that may occur as a result of restoration actions, management activities, and for a listed species covered by a SHA, a return to baseline conditions at the end of the applicable period.
(iii) All SHAs and associated permits issued by FWS or NMFS are subject to the Safe Harbor Policy jointly adopted by FWS and NMFS according to the regulations at 64 FR 32717 or applicable subsequently adopted policy, and SHAs with FWS also are subject to regulations at 50 CFR 17.22(c) for endangered species or 50 CFR 17.32(c) for threatened species, or applicable subsequent regulations.
(iv) All CCAAs and associated permits issued by FWS or NMFS are subject to the CCAAs policy jointly adopted by FWS and NMFS according to the regulations at 64 FR 32706 or applicable subsequently adopted policy, and CCAAs with FWS also are subject to regulations at 50 CFR 17.22(d) for endangered species or 50 CFR 17.32(d) for threatened species, or applicable subsequent regulations.
(v) If the 30-year contract or 10-year restoration cost-share agreement is terminated, the landowner will be responsible to notify and coordinate with FWS and NMFS or any other relevant party to the specific SHA or CCAA, as appropriate, for any modifications related to the SHA or CCAA.
§ 625.14 Modification of the HFRP restoration plan.
The State Conservationist may approve modifications to the HFRP restoration plan that do not modify or void provisions of the easement, contract, restoration agreement, or Landowner Protections, and are consistent with applicable law. NRCS may obtain and receive input from the landowner and coordinate with FWS and NMFS to determine whether a modification to the restoration plan is justified. Any HFRP restoration plan modification must meet HFRP program objectives, and must result in equal or greater wildlife benefits and ecological and economic values to the United States. Modifications to the HFRP restoration plan which are substantial and affect provisions of the contract, restoration cost-share agreement, or Landowner Protections will require agreement from the landowner, any relevant party to a specific SHA or CCAA, FWS, or NMFS, as appropriate, and may require execution of an amended contract or 10-year restoration cost-share agreement and modification to the Landowner Protection provisions.
§ 625.15 Transfer of land.
(a) Offers voided prior to enrollment. Any transfer of the property prior to the applicant’s acceptance into the program will void the offer of enrollment. At the option of the State Conservationist, an offer can be extended to the new landowner if the new landowner agrees to the same or more restrictive easement, agreement, and contract terms and conditions.
(b) Actions following transfer of land. (1) For easements or 30-year contracts with multiple annual payments, any remaining payments will be made to the original landowner unless NRCS receives an assignment of proceeds.
(2) Eligible cost-share payments will be made to the new landowner upon presentation of an assignment of rights or other evidence that title has passed.
(3) Landowner protections will be available to the new landowner, and the new landowner will be held responsible for assuring completion of all measures and conservation practices required by the contract, deed, and incidental take permit.
(4) If a SHA or CCAA is involved, the previous and new landowner may coordinate with FWS or NMFS, as appropriate, to transfer the agreement and associated permits and assurances.
(5) The landowner and NRCS may agree to transfer a 30-year contract. The transferee must be determined by NRCS to be eligible to participate in HFRP and must assume full responsibility under the contract, including operation and maintenance of all conservation practices and measures required by the contract.
(c) Claims to payments. With respect to any and all payments owed to a person, the United States will bear no responsibility for any full payments or partial distributions of funds between the original landowner and the landowner’s successor. In the event of a dispute or claim on the distribution of cost-share payments, NRCS may withhold payments without the accrual of interest pending an agreement or adjudication on the rights to the funds.
§ 625.16 Violations and remedies.
(a) Easement Violations. (1) In the event of a violation of the easement or any associated agreement involving a landowner, the landowner will be given reasonable notice and an opportunity to voluntarily correct the violation within 30 days of the date of the notice, or such additional time as the State Conservationist determines is necessary to correct the violation.
(2) Notwithstanding paragraph (a)(1) of this section, NRCS reserves the right to enter upon the easement area at any time to remedy deficiencies or easement violations. Such entry may be made at the discretion of NRCS when such actions are deemed necessary to protect important listed species, candidate species, and forest ecosystem functions and values or other rights of the United States under the easement. The landowner will be liable for any costs incurred by the United States as a result of the landowner’s negligence or failure to comply with easement or contractual obligations.
(3) In addition to any and all legal and equitable remedies as may be available to the United States under applicable law, NRCS may withhold any easement and cost-share payments owed to landowners at any time there is a material breach of the easement covenants, associated restoration agreement, or any associated contract. Such withheld funds may be used to offset costs incurred by the United States in any remedial actions or retained as damages pursuant to court order or settlement agreement.
(4) The United States will be entitled to recover any and all administrative and legal costs, including attorney’s fees or expenses, associated with any enforcement or remedial action.
(b) 30-year Contract and 10-year Cost-Share Agreement Violations. (1) If NRCS determines that a participant is in violation of the terms of a 30-year contract, or 10-year cost-share agreement, or documents incorporated by reference into the 30-year contract or 10-year cost-share agreement, the landowner will be given reasonable notice and an opportunity to voluntarily correct the violation within 30 days of the date of the notice, or such additional time as the State Conservationist determines is necessary to correct the violation. If the violation continues, the State Conservationist may terminate the 30-year contract or 10-year cost-share agreement.
(2) Notwithstanding the provisions of paragraph (b)(1) of this section, a 10-year cost-share agreement or 30-year contract termination is effective immediately upon a determination by the State Conservationist that the participant has: submitted false information; filed a false claim; engaged in any act for which a finding of ineligibility for payments is permitted under this part; or taken actions NRCS deems to be sufficiently purposeful or negligent to warrant a termination without delay.
(3) If NRCS terminates a 10-year cost-share agreement or 30-year contract, the participant will forfeit all rights for future payments under the 10-year cost-share agreement or 30-year contract, and must refund all or part of the payments received, plus interest, and liquidated damages.
(4) When making any 30-year contract or 10-year cost-share agreement termination decisions, the State Conservationist may provide equitable relief in accordance with 7 CFR part 635.
§ 625.17 Payments not subject to claims.
Any cost-share, contract, or easement payment or portion thereof due any person under this part will be allowed without regard to any claim or lien in favor of any creditor, except agencies of the United States Government.
§ 625.18 Assignments.
Any person entitled to any cash payment under this program may assign the right to receive such cash payments in whole or in part.
§ 625.19 Appeals.
(a) A person participating in the HFRP may obtain a review of any administrative determination concerning eligibility for participation utilizing the administrative appeal regulations provided in 7 CFR parts 11 and 614.
(b) Before a person may seek judicial review of any administrative action concerning eligibility for program participation under this part, the person must exhaust all administrative appeal procedures set forth in paragraph (a) of this section, and for purposes of judicial review, no decision will be a final agency action except a decision of the Chief under these procedures.
(c) Any appraisals, market analysis, or supporting documentation that may be used by NRCS in determining property value are considered confidential information, and will only be disclosed as determined at the sole discretion of NRCS in accordance with applicable law.
(d) Enforcement actions undertaken by NRCS in furtherance of its federally held property rights are under the jurisdiction of the Federal District Court, and are not subject to review under administrative appeal regulations.
§ 625.20 Scheme and device.
(a) If it is determined by NRCS that a person has employed a scheme or device to defeat the purposes of this part, any part of any program payment otherwise due or paid to such person during the applicable period may be withheld or be required to be refunded with interest thereon, as determined appropriate by NRCS.
(b) A scheme or device includes, but is not limited to, coercion, fraud, misrepresentation, depriving any other person of payments for 10-year cost-share agreements, contracts, or easements for the purpose of obtaining a payment to which a person would otherwise not be entitled.
(c) A person who succeeds to the responsibilities under this part will report in writing to NRCS any interest of any kind in enrolled land that is held by a predecessor or any lender. A failure of full disclosure will be considered a scheme or device under this section.
SUBCHAPTER D – LONG TERM CONTRACTING
PART 630 – LONG TERM CONTRACTING
§ 630.1 Purpose.
The purpose of this subchapter is to provide for programs to extend cost sharing and technical assistance through long term contracts to landowners and others for making land use changes and to install measures to conserve, develop, and utilize the soil, water, and related natural resources on their lands.
PART 631 – GREAT PLAINS CONSERVATION PROGRAM
Subpart A – General Provisions
§ 631.1 Purpose.
(a) The Great Plains Conservation Program (GPCP) is a special program targeted to the total conservation treatment of farm or ranch units with the most severe soil and water resources problems. The purpose of the program is to assist farm, ranch and other land users to make changes in their cropping systems and land uses which are needed to conserve, develop, protect, and utilize the soil and water resources of their lands. This purpose is achieved by controlling erosion, conserving water, and adjusting land use to mitigate climatic, soil, topographic, flood, saline and other natural hazards.
(b) Program participation is voluntary and is carried out by applying a conservation plan encompassing an entire operating unit. A conservation plan is developed with the land user in consultation with the local conservation district and is used to establish a GPCP contract. This contract provides for cost sharing between the land user and the Secretary of Agriculture for applying needed land use adjustments and conservation treatment within a specified time schedule. The program is supplemental to, not a substitution for, other programs in the Great Plains area.
§ 631.2 Definitions.
The terms defined shall have the following meaning in this part and in all contracts, forms, documents, instructions, and procedures in connection therewith, unless the contract or subject matter requires otherwise.
Applicant. A land user who has requested in writing to participate in the GPCP.
Area conservationist. The NRCS employee who is the supervisor with primary responsibility for quality control. This person serves as contracting officer if designated by the state conservationist.
Chief. The Chief of the Natural Resources Conservation Service (NRCS), USDA.
Conservation district (CD). A conservation district, soil conservation district, soil and water conservation district, natural resource district, or similar legally constituted body with which the Secretary of Agriculture cooperates pursuant to the Soil Conservation and Domestic Allotment Act. The members of governing bodies of these organizations may be known as supervisors, directors, or commissioners.
Conservation plan. A written record of the land user’s decisions regarding planned land use and treatment, including estimates of extent and cost. The timing of applications for each practice and/or identifiable unit is scheduled in the conservation plan.
Conservation practice. A specific treatment which is planned and applied according to NRCS standards and specifications as a part of a resource management system for land, water, and related resources.
Contract. A legal document that binds both the participants and the federal government to carry out the terms and conditions of the conservation plan. The contract forms the basis for GPCP sharing the costs of implementing the conservation plan.
Contracting officer. The NRCS employee authorized to sign GPCP contracts on behalf of NRCS.
County program committee. A group of Federal, State, and local officials selected by the designated conservationist. The committee provides ideas to the designated conservationist regarding program development and interagency program coordination.
Designated county. A county within a Great Plains state that the Chief has designated for participation.
Designated conservationist. A district conservationist or other NRCS employee who the state conservationist has designated to be responsible for administration of the GPCP in a designated county.
District conservationist. The NRCS employee assigned to direct and supervise NRCS activities in one or more conservation districts.
Great Plains area. The area comprising those counties within the Great Plains states designated for GPCP participation.
Great Plains states. Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming.
Identifiable unit. A discernibly distinct component of a conservation practice.
Land user. An individual, partnership, firm, joint-stock company, corporation, association, trust, estate, or other nonpublic legal entity having control of a unit of land. This definition includes two or more persons having a joint or common interest.
Life span. The period of time specified in the contract and/or operation and maintenance agreement during which the resource management systems of component practices are to be maintained and used for the intended purpose. Most practices will have a useful life beyond the specified life span.
Operation and maintenance agreement. A document signed by both the participant and the contracting officer outlining the operation and maintenance requirements for applied conservation treatment.
Operating unit. A parcel or parcels of land, whether contiguous or noncontiguous, constituting a single management unit for agricultural purposes.
Other land. Nonagricultural land on which erosion must be controlled to protect agricultural land and which can be covered by contract.
Participant. A land user who is a party to a GPCP contract.
Resource management system. A combination of conservation practices identified by the land or water use that, if installed, will protect or improve the soil or water resource base.
Specifications. Minimum guantity or quality requirements established by NRCS to meet the standard for a specific conservation practice.
State conservationist. The NRCS employee authorized to direct and supervise NRCS activities within the state.
State program committee. A group of Federal, state, and local officials selected by the state conservationist. The committee provides ideas to the state conservationist regarding program development, coordination, general policies, and operating procedures of GPCP in the state.
Technical assistance. Guidance provided to land users regarding the use and treatment of soil, water, plant, animal, and related resources. This assistance may include conservation plan formulation, application, and maintenance and is usually confined to those activities which the recipient could not reasonably be expected to do without specialized assistance.
Technical guide. A document containing detailed information on the conservation of soil, water, plant, animal, and related resources applicable specifically to the area for which it is prepared.
§ 631.3 Administration.
(a) NRCS is responsible for the administration of the Great Plains Conservation Program (GPCP).
(b) The program shall be carried out in close cooperation with interested Federal, state, and local government units and organizations. The program in designated counties shall be coordinated with the long-range program of conservation districts operating in such counties and with other USDA activities.
(c) Applicants who have USDA-Farmers Home Administration (FmHA) loans must furnish to NRCS satisfactory evidence that the conservation plan used as a basis for the GPCP contract is compatible with assistance provided by FmHA. Such evidence may consist of written acknowledgement by the authorized FmHA official that the GPCP conservation plan is compatible with the farm management plan prepared for FmHA program purposes.
§ 631.4 Program applicability.
The program is applicable only to designated counties within the Great Plains states. County designation is a responsibility of the NRCS Chief.
§ 631.5 Land user eligibility.
Any land user in a designated county may file an application for participation in the GPCP with the NRCS field office. A land user who develops an acceptable conservation plan in cooperation with NRCS and the conservation district that is in compliance with the terms and conditions of the program is eligible to sign a contract.
§ 631.6 Land eligible for the program.
The program is applicable to:
(a) Privately owned land,
(b) Nonfederally owned public land under private control for the contract period and included in the participant’s operating unit, and
(c) Federally owned land, if installation of conservation practices would directly benefit nearby or adjoining privately owned land of persons who maintain and use the Federal land.
§ 631.7 Conservation treatment eligible for cost sharing.
(a) The state conservationist, in consultation with the state program committee, shall select the resource management systems, conservation practices, or identifiable units eligible for GPCP cost sharing in the state.
(b) The designated conservationist, in consultation with the county program committee, shall select from the state list the eligible conservation systems, practices, or identifiable units eligible for GPCP cost sharing in the county.
(a) The Federal rate may not exceed 80 percent.
(b) The maximum Federal rate (percentage) within each state for each practice or identifiable unit shall be established by the state conservationist.
(c) The maximum rate (percentage) for each county is established by the designated conservationist not to exceed the state rate (percentage).
(d) The rate (percentage) established by a state conservationist or a designated conservationist shall not exceed the amount necessary and appropriate to apply conservation treatment.
§ 631.9 Conservation plan.
(a) An applicant is responsible for developing a conservation plan, in cooperation with the conservation district, that protects the resource base in a manner acceptable to NRCS. This plan will be used as a basis for developing a contract. Conservation treatment is to be planned and implemented as a resource management system.
(b) The applicant decides how the land will be used and selects the resource management systems that will achieve the applicant’s objectives and provide protection of soil, water, and related resources acceptable to NRCS. Eligible practices may be included in the conservation plan to enhance fish and wildlife and recreation resources, promote the economic use of land, and reduce or control agriculture-related pollution.
(c) Technical assistance will be provided by NRCS, as needed by the land user. NRCS may utilize the services of private, local, state, and other Federal agencies in discharging its responsibilities for technical assistance.
(d) Participants are responsible for accomplishing the conservation plan and may use all available sources of assistance, including other USDA programs that are consistent with the conservation plan.
(e) All conservation practices scheduled in the conservation plan are to be carried out in accordance with the applicable NRCS technical guide.
Subpart B – Contracts
§ 631.10 Contracts.
(a) To participate in the program, an applicant must enter into a contract agreeing to implement a conservation plan. All persons who control or share control of the operating unit for the proposed contract period must sign the contract or one person with power-of-attorney may sign the contract for all persons. The applicant must provide the contracting officer with satisfactory evidence of control of the operating unit for the life of the proposed contract.
(b) Contracts may be entered into not later than September 30, 1991. The contract shall be for a period needed to establish the conservation treatment scheduled in the conservation plan and must extend at least 3 years but not more than 10 years.
(c) Contracts may be transferred or modified by mutual consent. The transferee assumes full responsibility for the contract including operation and maintenance of all land treatment installed under the contract. Also included are payments made under the contract to the participant or preceding participants before and after the transfer.
(d) Contracts may be terminated by mutual consent or by NRCS for cause.
§ 631.11 Conservation practice maintenance.
(a) Each participant is obligated to maintain the resource management systems or conservation practices applied under the contract for the duration of the contract. Practices installed before execution of the contract are to be maintained as specified in the contract.
(b) If the life span of the practices or resource management systems extends beyond the period of the contract, state conservationists may make the operation and maintenance of those practices or systems a condition of the contract. The length of such operation and maintenance shall extend for the expected life span.
(a) Federal cost sharing shall be adjusted so that the combined cost share by Federal and state government or subdivision of a state shall not exceed 100 percent of the cost.
(b) Cost-share payments for completing resource management systems or a practice or an identifiable unit according to specifications will be made by NRCS as specified in the contract or as adjusted according to § 631.12(a).
§ 631.13 Disputes and appeals for matters other than contract violations.
Applicants or participants may appeal decisions regarding matters other than contract disputes under this part in accordance with part 614 of this title.
§ 631.14 Contract violations.
Contract violations, determinations and appeals will be handled in accordance with the terms of the contract and attachments thereto. Violations involving fraud are to be handled in accordance with current USDA regulations.
Subpart C – Miscellaneous
§ 631.20 Setoffs.
(a) If any participant to whom compensation is payable under the program is indebted to U.S. Department of Agriculture (USDA), or any agency thereof, or is indebted to any other agency of the United States, and such indebtedness is listed on the county claim control record maintained in the office of the county ASC committee, the compensation due the participant shall be set off against the indebtedness. Indebtedness owing to USDA, or any agency thereof, shall be given first consideration. Setoffs made pursuant to this section shall not deprive the participant of any right to contest the justness of the indebtedness involved either by administrative appeal or by legal action.
(b) Participants who are indebted to this program for any reason will be placed on the USDA claim control record promptly by the state conservationist after the participant has been given opportunity to pay the debt.
§ 631.21 Compliance with regulatory measures.
Participants who carry out conservation practices shall be responsible for obtaining the authorities, rights, easements, or other approvals necessary for the implementation and maintenance of the conservation practices in keeping with applicable laws and regulations. Participants shall save the United States harmless from any infringements upon the rights of others or from any failure to comply with applicable laws or regulations.
§ 631.22 Access to operating unit.
Any authorized NRCS representative shall have the right to enter an operating unit for the purpose of ascertaining the accuracy of any representations made in a contract or leading up to a contract, and as to the performance of the terms and conditions of the contract. Access shall include the right to measure acreages, render technical assistance, and inspect any work undertaken under the contract.
The state conservationist may take the initiative to revise or require revision of any determination made by the contracting officer or the district conservationist in connection with the program, except that the state conservationist may not revise any executed contract other than as may specifically be authorized herein.
PART 632 – RURAL ABANDONED MINE PROGRAM
Subpart A – General
§ 632.1 Purpose and scope.
(a) The purpose of this part is to set forth the Natural Resources Conservation Service (NRCS) rules and regulations to carry out the Rural Abandoned Mine Program under section 406, Pub. L. 95-87; 91 Stat. 460 (30 U.S.C. 1236).
(b) The Rural Abandoned Mine Program:
(1) Through the NRCS delivery system, assists land users to voluntarily develop reclamation plans and apply conservation treatment for the reclamation, conservation, and development of eligible coal-mined lands and water, and
(2) Provides cost sharing through long-term contracts according to an approved reclamation plan, to land users for establishing land use and conservation treatment on these lands.
§ 632.2 Objectives.
(a) The objectives of the program are to protect people and the environment from the adverse effects of past coal-mining practices and to promote the development of the soil and water resources of unreclaimed mined lands by:
(1) Stabilizing mined lands.
(2) Controlling erosion and sediment on mined areas and areas affected by mining.
(3) Reclaiming lands and water for useful purposes.
(4) Enhancing water quality or quantity where it has been disturbed by past coal-mining practices.
§ 632.3 Responsibilities.
(a) The Rural Abandoned Mine Program is administered by the U.S. Department of Agriculture (USDA) through NRCS in accordance with the delegation of responsibility contained in § 601.1(h) of this chapter.
(1) The Chief of NRCS is responsible for national program management and administration and for coordinating program operations with the Office of Surface Mining (OSM), U.S. Department of the Interior.
(2) State conservationists (Responsible Federal Officials) are responsible for program operations within a State including program coordination with the State reclamation agency and the representatives of OSM.
(b) The primary public contacts for program assistance are the district conservationists located in local NRCS field offices.
(c) NRCS is assisted by other USDA agencies in accordance with existing authorities and agreements in carrying out the program.
(d) NRCS is to coordinate Rural Abandoned Mine Program activities with NRCS programs and the other reclamation programs authorized by Pub. L. 95-87 that are carried out by the Office of Surface Mining of the U.S. Department of the Interior, State reclamation agencies, and Indian tribes. Coordination includes program development, development of reclamation standards, preparation of special reports, requests for funding, and related actions required to achieve coordination between programs.
(e) NRCS is to consult with State and local reclamation committees to obtain recommendations on program operation, evaluation of applications for reclamation assistance, and public participation. The NRCS State Conservationist is to use existing reclamation committees or encourage the organization of a new State committee for this purpose. The State Conservationist is to serve as a member when the committee is functioning for the purposes of this program. Representatives of the Office of Surface Mining, State reclamation agency, State water quality agency, State conservation agency, and other agencies or groups are to be invited to participate as members. Individual citizens may participate through the State committee. Local committees, if needed, are to be organized on a multicounty, county, conservation district, or other appropriate area with a local membership structure similar to the State committee. The district conservationist is to be a member of a local reclamation committee organized to provide program guidance.
§ 632.4 Definitions.
Abandoned mined lands. Unreclaimed coal-mined lands that existed before August 3, 1977, and for which there is no continuing reclamation responsibility on the part of a mine operator, permittee, or agent under State or Federal law or on the part of the State as a result of a bond forfeiture. See § 632.13.
Average costs. The calculated cost, determined by recent actual costs and current cost estimates, considered necessary for a land user to carry out a conservation practice or an identifiable unit of a conservation practice.
Conservation district. A legal subdivision of State government responsible for developing and carrying out programs of soil and water conservation with which the Secretary of Agriculture cooperates under the Soil Conservation and Domestic Allotment Act of 1935.
Conservation treatment. Specific conservation or reclamation practices applied to the land according to current standards and specifications in NRCS technical guides.
Contract. A binding agreement between NRCS and the land user that includes the reclamation plan and provides for cost sharing the conservation treatment.
Contracting officer. The NRCS official authorized to enter into and administer contracts for the Rural Abandoned Mine Program.
Cost. The monetary amount actually paid or obligated to be paid by the land user for equipment use, materials, and services for carrying out a conservation practice or identifiable unit. If the land user uses his own resources, it includes the computed value of his labor, equipment use, and materials.
Cost-share payments. Payments made to or on behalf of land users at established rates as specified in contracts for carrying out a conservation practice or an identifiable unit of such practices according to the contract.
Financial burden. The land user’s cost of reclamation that cannot be expected to be recovered within the contract period and that would probably prevent participation in the program. The land user must sign a statement to substantiate financial burden.
Identifiable unit. A component of a conservation practice that can be clearly identified as a step in carrying out the conservation practice.
Inadequately reclaimed. Lands or water that are mined for coal or are affected by mining conducted before August 3, 1977, which continue in their present condition to substantially degrade the quality of the environment, prevent or damage beneficial use of land or water resources, or endanger the health or safety of the public.
Landrights. An interest acquired by fee simple title, easements, and rights-of-way to occupy or use land, buildings, structures, or other improvements.
Land user. Any person, partnership, firm, company, corporation, association, trust, estate, other entity, or agent that owns or has management control of the surface rights of the land during the contract period or owns water rights on eligible lands. Also included are State or local public entities that own or control eligible land and water.
Main benefits. The principal values or benefits that can be identified and/or quantified as a result of reclamation. Main offsite benefits are those values that accrue to surrounding land users or the public in general as a result of the reclamation. Main onsite benefits are those that accrue to the participant. Examples of principal values or benefits include but are not limited to human lives and property protected, reduction of erosion or sediment damage, elimination of public safety or health hazards, improvement of water quality, improved visual quality, improved fish or wildlife habitat, or restoration of beneficial uses of reclaimed areas.
Reclamation committee. A committee on a local or State level consisting of representatives of Federal and State agencies and other organizations or individuals that have responsibilities or interest in abandoned mine reclamation. The committee provides guidance to NRCS on the operation of the Rural Abandoned Mine Program.
Reclamation plan. A conservation and development plan as referred to in Pub. L. 95-87, consisting of a written record of land user decisions on proposed use, conservation treatment, and maintenance of eligible lands and water that will protect, enhance, and maintain the resource base. A reclamation plan contains pertinent soils data, a planned land use map or drawing, a record of use and treatment decisions including a schedule of conservation treatment, and other resource data as appropriate.
Specified maximum costs. The maximum amount of cost-share money that is to be paid to a land user for carrying out a conservation practice or an identifiable unit of a conservation practice.
Standards and specifications. Requirements that establish the acceptable quality level for planning, designing, and installing a conservation practice so it achieves its intended purpose. NRCS standards and specifications are contained in the NRCS field office technical guides and are designed to be sound and practicable under local conditions. Technical guides are on file in local NRCS field offices.
Water rights. Any interest acquired in, priority established for, or permission obtained for the use of water.
Subpart B – Qualifications
§ 632.10 Applicability.
This program applies to any county or other designated area within a State that had abandoned or inadequately reclaimed coal-mined lands within its borders before August 3, 1977.
§ 632.11 Availability of funds.
(a) The provisions of the program are subject to the annual appropriation by Congress of funds from the Abandoned Mine Reclamation Fund and the transfer of as much as 20 percent of these funds from the Office to Surface Mining to NRCS for program operation.
(b) Allotments of Rural Abandoned Mine Program funds to state conservationists are to reflect the national program needs, the geographic areas from which the funds were derived, the funding priority assigned to applications for program assistance, including benefits expected to be derived, and the practicability and feasibility of the reclamation work proposed.
§ 632.12 Funding priorities.
(a) All eligible applications within a State are to be assigned a funding priority and subpriority. Assignment of a priority and subpriority establishes the order in which the proposed reclamation work will be selected and evaluated for funding. (See § 632.20(b) for additional selection criteria.) Applications for individual, joint, or special projects (See § 632.18) for areas of different priorities or subpriorities are to be assigned the highest applicable priority or subpriority. The funding priorities are as follows:
(1) Priority 1. Protection of public health, safety, general welfare, and property from extreme danger of adverse effects of coal-mining practices. Extreme danger means a condition that could be expected to cause substantial physical harm to persons, property, or the environment and to which persons or improvements on real property are exposed.
(2) Priority 2. Protection of public health, safety, and general welfare from the adverse effects of coal-mining practices that do not constitute an extreme danger.
(3) Priority 3. Restoration of the land and water resources and the environment where previously degraded by the adverse effects of coal-mining practices, including measures for the conservation and development of soil, water (excluding channelization), woodland, fish and wildlife, recreation resources, and agricultural productivity. First consideration in this priority is to be the reduction of offsite damage affecting the public. Second consideration is to be given to restoring to beneficial uses for the main benefit of the land user.
(b) Eligible and feasible applications for program assistance within each priority category (§ 632.12(a)) are to be funded in the following order:
(1) Individual persons or public entities who owned the eligible area before May 2, 1977, and who neither consented to nor exercised control over the mining operation.
(2) Individual persons who would actively use the area, if reclaimed, for agricultural or silvicultural purposes.
(3) All other participants.
§ 632.13 Eligible lands and water.
Lands and water eligible for reclamation are those that were mined for coal or were affected by coal-mining processes and were abandoned or inadequately reclaimed before August 3, 1977. These lands and water are not eligible if:
(a) There is continuing reclamation responsibility on the part of a mine operator, permittee, or agent under State or Federal law or on the part of the State as a result of bond forfeiture. However, if the amount of the bond forfeiture was insufficient to reclaim the area covered by the bond, the area will be considered eligible.
(b) They are under Federal ownership and control.
(c) The surface rights are under easement or lease to be remined for coal or other minerals.
§ 632.14 Eligible land users.
Landowners holding surface land and water rights, residents, tenants, or their agents who own or have management control of eligible land and/or water are eligible to participate in the program. Residents or tenants who do not own the land must have control of the land for the period of the proposed contract and have the written consent of the landowner. Land users may participate by operating as persons, partnerships, associations, corporations, estates, trusts, or non-Federal public entities, and by acting individually or jointly with other eligible land users. However, joint participation with other eligible land users is required if the primary purpose of reclamation is enhancement of water quality or quantity.
§ 632.15 Eligible uses and treatment of reclaimed lands.
(a) Reclaimed lands and water may be used for cropland, hayland, pasture land, rangeland, woodland, wildlife land, natural areas, noncommercial recreation land, and the supporting uses associated with these land uses. Other land uses proposed by public entities for public use and benefit such as open space, conservation uses, natural areas, and recreation sites may be approved by the NRCS State conservationist in accordance with the priorities stated in § 632.12. However, development of public sites, such as the installation of recreation facilities, is not eligible for cost sharing.
(b) Reclaimed land use is determined by the objectives of the land user, compatibility of the land use with surrounding land use, and the practicability and feasibility of restoring the soil and water resources to support the use selected.
(c) The maximum acreage of eligible lands and water that may be offered for contract under one ownership is 320 acres for the life of the program.
(d) Conservation treatment eligible for Federal cost sharing includes the combination of practices needed and feasible to achieve:
(1) Protection of life, property, and elimination of public health and safety hazards, including land stabilization.
(2) Restoration of the environment where degraded by past mining, including water quality, visual quality, recreation resources, fish and wildlife habitat, and erosion and sediment control.
(3) A site that can be developed for a beneficial use as specified in § 632.15(a). Examples of eligible treatment that may be cost shared include but are not limited to: Land shaping and grading, critical area planting or other plantings for stabilization, improving visual quality, wildlife food and cover, diversions or terraces, waterways or lined ditches, grade stabilization structures, sediment basins, and special practices for sealing shafts and tunnels, correcting subsidence problems, or other unusual situations. Practices not eligible for cost sharing are those that are solely applied to develop a reclamation site (including sites developed by public entities for public use), increase the production of crops, or for the recurring maintenance of applied reclamation.
(e) Applied conservation treatment is to meet the applicable Federal and State standards for the reclamation and conservation treatment of abandoned or inadequately reclaimed coal-mined lands and water. Where needed, these standards are incorporated in local NRCS technical guides as the NRCS standards and specifications applicable to the program. Special practices as specified in § 632.15(d) are to be developed in cooperation with appropriate State or Federal agencies having the expertise or responsibility for the practices.
(f) NRCS State conservationists, in consultation with the State reclamation committee, are to:
(1) Develop a list of practices that are eligible for cost sharing, and
(2) Maintain, as applicable, lists of average costs of applying conservation treatment to eligible lands and waters.
§ 632.16 Methods of applying planned land use and treatment.
(a) Land users may arrange to apply the planned land uses and conservation treatment specified in the contract by one or more of the following methods:
(1) By performing the required treatment with his own labor and equipment.
(2) By hiring a qualified contractor to install the required treatment.
(3) By requesting NRCS to award and administer a contract to perform the required treatment in accordance with 41 CFR chapters I and IV.
(b) State conservationists are to develop criteria specifying the conditions for which NRCS will award and administer a contract. Criteria will consider: Type of equipment required, type and amount of conservation treatment required, costs of the required reclamation, needs of the land user, and the applicable cost-share rate. If the Federal share is less than 100 percent, a land user must put up his estimated share of the cost before NRCS awards the contract.
(a) Cost-share rates paid by the Federal Government are to be established and issued as instructions by the NRCS Administrator in accordance with the following criteria:
(1) For 120 acres or less, the cost-share rate is to provide up to 80 percent of the costs of land use and conservation treatment depending on the income-producing potential of the land after reclamation. However, this rate may be increased to a level required to obtain participation if the main benefits of reclamation are offsite (in the public interest) and there is a declaration of financial burden by the participant.
(2) The rate on acreage in excess of 120 acres up to 320 acres maximum is to be reduced by up to 0.5 percent per acre. This reduced rate applies to the entire acreage offered for contract.
§ 632.18 Special projects.
(a) The NRCS State conservationist may approve the following types of special projects subject to the eligibility requirements, funding priorities, and cost-share rates as stated in §§ 632.12, 632.13, 632.14, 632.15, and 632.17:
(1) Field trials or demonstration projects recommended by the State reclamation committee.
(2) Projects to enhance water quality and quantity where past coal-mining practices disturbed local water supplies and where joint action by a group of eligible land users in cooperation with Federal and State agencies is needed to restore the water resource.
§ 632.19 Crop history and allotments.
(a) Most crop history and allotments on eligible lands were discontinued at the time of mining. However, if eligible lands are classified as cropland at the time the contract is signed, the cropland crop history and allotment, if any, may be:
(1) Preserved for a period not to exceed twice the length of the contract as provided in 7 CFR part 719, or
(2) Voluntarily surrendered by the land user.
Subpart C – Participation
§ 632.20 Application for assistance.
(a) Land users must submit an application for program assistance through the local conservation district or NRCS field office. NRCS is to announce dates for receiving applications through local media. Applications are to be reviewed by the conservation district and/or local reclamation committee, which is to verify eligibility and recommend funding priorities to the NRCS district conservationist. The NRCS district conservationist is to assign funding priorities according to the recommendations unless he determines that applications are incomplete, ineligible, or unfeasible. Low priority applications that cannot be serviced within specific time periods established by the State conservationist are to be returned to the applicant with an appropriate explanation. These applicants may reapply at a later date if they are still interested.
(b) Eligible applicants are serviced within each subpriority according to the following criteria:
(1) The specific type, amount, and relative importance of benefits to be derived. (Public benefits and offsite environmental improvement will take precedence over onsite benefits.)
(2) Feasibility and practicability of reclaiming for the proposed uses.
(3) Land user’s ability to proceed.
(4) Date of the application.
§ 632.21 Reclamation plan.
(a) Responsibility. Land users are responsible for developing a reclamation plan that will serve as a basis for a contract. Normally, a land user will need the technical services of NRCS and the conservation district or another professional to develop an acceptable plan.
(b) Objectives and priorities. The reclamation plan is to provide for the appropriate program objectives and priorities as stated in §§ 632.2 and 632.12 and meet the definition of a reclamation plan as defined in § 632.4.
(c) Review. (1) In areas served by conservation districts, reclamation plans are to be reviewed and signed by the district board to insure that planned land use and treatment is compatible with surrounding land uses and that proposed assistance is consistent with the district plan of work and priorities. In areas not served by conservation districts, the land use compatibility review may be performed by the local reclamation committee.
(2) If reclamation plans include lands within or adjacent to Federal lands, the plan is to be reviewed with the appropriate Federal land management agency to insure that the planned land use is compatible with that of the surrounding area.
(3) Land users are responsible for insuring that the proposed land use and treatment is compatible with local land use ordinances.
(d) Approval. Proposed land use, conservation treatment, and sequence of application contained in the plan are to be agreed to by both NRCS and the land user. The district conservationist is to sign the reclamation plan to indicate technical approval.
§ 632.22 Contracts.
(a) Cost-sharing contracts. A land user who has an approved reclamation plan may enter into a contract with NRCS to receive Federal cost-share assistance. All land users are to sign the contract. A land user is required to furnish evidence of management control, such as a long-term lease, recorded deed, or land contract, and must have the written consent of the landowner. The NRCS contracting officer is to sign the contract after determining that all documents meet program requirements.
(b) Effect of contract. A land user who signs a contract is obligated to apply or arrange for the application of the land use and conservation treatment as scheduled in the reclamation plan according to approved standards and specifications. A land user may request NRCS to award and administer a contract to apply the conservation treatment as scheduled in the reclamation plan in accordance with § 632.16(a)(3).
(c) Permits, landrights, and water rights. The land user is responsible for obtaining the permits, surface land- rights, and water rights that may be required to perform the planned work. NRCS is to assist land users in identifying the specific permit, landright, or water right required.
(d) Operation and maintenance. During the contract period the land user is responsible for the operation and maintenance of applied conservation treatment. Operation and maintenance requirements are to be included in the contract.
(e) Period of contract. The contract period is to be no less than 5 nor more than 10 years. A contract is to extend for at least 3 years after the application of the last cost-shared conservation treatment to insure adequate establishment of vegetation and other treatment. Exceptions to the 3-year provision may be granted by the state conservationist for unusual circumstances.
(f) Transfer of contract. (1) If during the contract period all or part of the right and interest in the land is transferred by sale or other action, the contract is terminated on the land unit that was transferred and the land user:
(i) Forfeits all right to any future cost-share payments on the transferred land unit, and
(ii) Must refund cost-share payments that have been made on the transferred land unit not to exceed the difference between the estimated value of the land at the time of entering into the contract and at the time of transfer, unless the new land user becomes a party to the contract as provided in paragraph (f)(2) of this section.
(2) If the new land user becomes a party to the contract:
(i) He is to assume all obligations of the previous land user on the transferred land unit.
(ii) The contract with the new land user is to remain in effect with the original terms and conditions.
(iii) The contract is to be modified in writing to show the changes caused by the transfer. If the modification is not acceptable to the contracting officer, the provisions of paragraphs (f)(1) (i) and (ii) of this section apply.
(3) The transfer of all or part of a land unit by a land user does not affect the rights and obligations of other land users who have signed the contract.
(g) Modification of contract. (1) A contract previously entered into with a land user may be modified only with the approval of the State conservationist or as authorized under established policies. No contract may be modified unless it is determined that the modification is desirable to carry out the program.
(2) Contracts may be modified to add, delete, substitute, or reapply conservation treatment if:
(i) Applied conservation treatment failed to achieve the desired results through no fault of the land user,
(ii) Applied treatment deteriorated because of conditions beyond the control of the land user, or
(iii) Other treatment is substituted that will achieve the desired results.
(h) Joint contract. A land user may enter a contract jointly with other land users subject to the 320 acres maximum limitation per landowner. However, joint participation is permitted only if it will result in better land use and treatment than individual participation or if it is required by §§ 632.14 and 632.18(a)(2).
(i) Termination of contract. Contracts may be terminated by mutual consent of the signatories only if the State conservationist determines that the termination is authorized under established policies and is in the public interest. In this case, the State conservationist is to determine the amount of refund.
§ 632.23 Access to land unit and records.
Any authorized NRCS employee or agent is to have the right of access to land under application or contract and the right to examine any program records to ascertain the accuracy of any representations made in the application or contract. This includes the right to furnish technical assistance and to inspect work done under the contract.
§ 632.30 Applicability.
This subpart contains procedures for making cost-share payments to a land user when land use and conservation treatment is applied as specified in § 632.16(a)(1) or (2).
(a) Amount of cost-share payment. Cost-share payments are to be made at rates specified in the contract. The cost-share payment is to be determined by one of the following methods:
(1) Average cost.
(2) Actual cost but not more than the average cost.
(3) Specified maximum cost. If the average cost or the specified maximum cost at the time of starting the installation of a conservation practice or identifiable unit is less than the cost specified in the contract, payment is to be made at the lower rate. If the cost at the start of installation is higher, payment may be made at the higher rate. A contract modification is necessary if NRCS determines that the higher cost is a significant increase in the total cost-share obligation. If costs are significant, cost-share payment is not to be made until the modification reflecting the increase is approved. If the higher costs are not significant, cost-share payments may be made if funds are available.
(b) Time of payment. Cost-share payments are to be made to the land user after a practice or an identifiable unit has been satisfactorily applied. The land user is to submit claims for payment to the district conservationist no later than September 30 of the year after application. Late claims require approval of the State conservationist before payment can be made. A claim is to show the proportion of each land user’s contribution to the applied practice or identifiable unit.
(c) Approval. The district conservationist must certify that a practice or identifiable unit has been satisfactorily applied before NRCS can make cost-share payments.
(d) Ineligible claim. A land user is not eligible to receive cost-share payments for a practice or an identifiable unit that was not carried out under program requirements.
(e) Authorization for payment. (1) Materials or services needed to carry out contracts are to be obtained by land users. Contracts may provide for part or all of the cost-share payment for a practice or identifiable unit to be made directly to suppliers of materials or services. The materials or services must be delivered or performed before payment is made.
(2) The contracting officer is to authorize payment for materials or services not exceeding:
(i) The cost share of the material or service used, or
(ii) The total cost share of the practices or identifiable unit if requested by the land user.
(3) The land user who purchases materials or services to carry out a contract is responsible for them until the district conservationist determines that the material or service was used for the intended purpose. If a material or service cost-shared by NRCS is used for a purpose other than to carry out the contract, the land user is indebted to the United States for the cost of the misused material or service. This indebtedness is to be repaid to NRCS as a refund or withheld from cost-share payments otherwise due the land user under the contract.
(4) NRCS has the right to inspect materials or services and to take samples for testing. Inspections by NRCS will not be necessary if NRCS considers State inspection regulations adequate.
(5) Materials or services must meet the quality standards as specified. NRCS may make exceptions for materials or services that do not meet the standards only if they will satisfactorily serve the intended purpose. NRCS is to deduct from the cost-share payment the difference between the price of the materials or services specified and the actual value of the different materials or services.
(f) Division of cost-share payments. Federal cost-share payments made directly to suppliers of materials or services are credited to the land user who was issued the authorization. The remainder of the cost share is credited to the land user who carried out the remainder of the practice or identifiable unit. If more than one land user contributed to carrying out a practice or identifiable unit, the cost-share payment is to be divided proportionately according to the contribution made by each of the land users. Furnishing a landright or water right is not a contribution for cost-share payment purposes.
(g) Other aid. Non-Federal public entities may furnish all or part of the land user’s portion of the cost of applying a practice or identifiable unit with no reduction in the Federal cost share.
(h) Assignments and claims. Land users may not assign cost-share payments except as provided under the authority of 31 U.S.C. 203, as amended by 41 U.S.C. 15. Federal cost-share payments due any land user are not subject to claims for advances except as provided in this section.
Subpart E – Appeals and Violations
§ 632.40 Appeals.
Land users may appeal decisions under this part in accordance with part 614 of this title.
§ 632.41 Violations.
(a) Actions causing violation. The following actions constitute violation of a contract by a land user:
(1) Knowingly or negligently damaging or causing conservation treatment to be impaired.
(2) Adopting land use or treatment that tends to defeat the program purposes during the period of the contract.
(3) Failing to comply with the terms of the contract.
(4) Filing a false claim.
(5) Misusing an authorization.
(b) Effect of violation – (1) Contract to be terminated. (i) By signing a contract, the land user agrees to forfeit all rights to further cost-share payments under a contract and to refund cost-share payments received not to exceed the difference between the estimated value of the land at time of entering into the contract and the value at time of termination, if the contracting officer, with approval of the State conservationist, determines that:
(A) There was a violation of the contract during the time the land user had control of the land, and
(B) The violation was of a nature as to warrant termination of the contract.
(ii) The land user is to be obligated to refund cost-share payments and cost shares paid under authorizations not to exceed the difference between the estimated value of the land at time of entering into the contract and the value at time of termination.
(2) Contract not terminated. (i) By signing a contract, the land user agrees to refund cost-share payments received under the contract or to accept payment adjustment if the contracting officer, with the approval of the State conservationist, determines that:
(A) There was a violation of the contract during the time the land user had control of the land, and
(B) The nature of the violation does not warrant termination of the contract.
(ii) Payment adjustments may include decreasing the rate of a cost share, deleting a cost-share commitment from the contract, or withholding cost-share payments earned but not paid. The land user who signs the contract may be obligated to refund cost-share payments and cost shares paid under authorizations.
§ 632.42 Violation procedures.
(a) Scope. This section prescribes the regulations dealing with contract violations. The Chief reserves the right to revise or supplement any of the provisions of this section at any time if the action does not adversely affect the land user, or if the land user has been officially notified before this action is taken. No cost-share payment shall be made pending the decision on whether a contract violation has occurred.
(b) Determination by contracting officer. On notification that a contract violation may have occurred, the contracting officer is to:
(1) Determine, with the approval of the State conservationist, that a violation did not occur or that the violation was of such a nature that no penalty of forfeiture, refund, or payment adjustment is necessary. No notice is issued to the land user, and no further action is to be taken; or
(2) Determine that a violation did occur, but the land user agrees to accept the penalty. If the land user agrees in writing to accept a penalty of forfeiture, refund, payment adjustment or termination, no further action is to be taken. The land user’s agreement to accept the penalty must be approved by the contracting officer and State conservationist.
(c) Notice of possible violation. (1) When the State conservationist is notified that a contract violation may have occurred that may warrant a penalty of forfeiture, refund, payment adjustment, or termination, he is to notify, in writing, each land user who signed the agreement of the alleged violation. This notice may be personally delivered or sent by certified or registered mail. A land user is considered to have received the notice at the time of personal receipt acknowledged in writing, at the time of the delivery of a certified or registered letter, or at the time of the return of a certified or registered letter where delivery was refused.
(2) The notice setting forth the nature of the alleged violation is to give the land user an opportunity to appear at a hearing before a hearing officer designated by the State conservationist. The land user’s request for a hearing is to be submitted in writing and must be received in the NRCS field office within 30 days after receipt of the notice. The land user is to be notified in writing by the hearing officer of the time, date, and place for the hearing. The land user is to have no right to a hearing if he does not file a written request for a hearing, or if he or his representative does not appear at the appointed time, unless the hearing officer, at his discretion, permits an appearance. A request for a hearing filed by a land user is considered to be a request by all land users who signed the contract.
(d) Hearing. A public hearing is to be conducted to obtain the facts about the alleged violation. The hearing officer is to limit the hearing to relevant facts and evidence and is not to be bound by the strict rules of evidence as required in courts of law. Witnesses may be sworn in at the discretion of the hearing officer.
(1) The land user or his representative is to be given full opportunity to present oral or documentary evidence about the alleged violation. Likewise, the United States may submit statements and evidence. Individuals not otherwise represented at the hearing may be permitted, at the discretion of the hearing officer, to give information of evidence. The hearing officer, at his discretion, may permit witnesses to be cross-examined.
(2) The hearing officer is to make a record of the hearing so that the testimony can be summarized. A summary of the testimony may be made if both the land user and the State conservationist agree. A transcript of the hearing is to be made if requested by either the State conservationist or the land user within 10 days of the hearing. If a transcript is requested by the land user, the land user may be assessed the cost of a copy of the transcript.
(3) The hearing officer is to close the hearing after a reasonable period of time if the land user or his representative is not present at the scheduled time. The hearing officer may, at his discretion, accept information and evidence submitted by others present for the hearing.
(4) The hearing officer is to furnish the State conservationist with a written report setting forth his findings, conclusions, and recommendations. The report is to include the summary of testimony or transcript made of the hearing and any other information that would aid the State conservationist in reaching his decision.
(e) Decision by State conservationist. The State conservationist is to make a decision after considering the hearing officer’s report, including recommendations of the conservation district board if any, and any other information available to him, including, if applicable, the amount of the forfeiture, refund, or payment adjustment. The decision is to state whether the violation is of such a nature as to warrant termination of the contract. The State conservationist is to notify, in writing, each land user who signed the contract of his decision. The State conservationist may authorize or require the reopening of any hearing before a hearing officer for any reason at any time before his decision.
(f) Appeal to Chief. Any land user affected by a decision of the State conservationist has the right of appeal to the Chief. The appeal and any briefs or statements must be received in the Office of the Chief within 30 days after the land user has received notice of the State conservationist’s decision. The State conservationist is to file a brief or statement in the Office of the Chief within 20 days after the land user’s brief or statement is received there. The appeal is to be limited to the records and the issues made before the State conservationist. The Chief’s decision is final. The decision is to be determined by the record before him and the issues presented in the appeal, and the land user is to be notified in writing.
(1) If the decision provides for termination of the contract, it is to state that the contract is terminated, that all rights to further cost-share payments under the contract are forfeited, and that cost-share payments received under the contract are to be refunded, but the refund is not to exceed the difference between the estimated value of the land at time of entering into the contract and the value at time of termination. The decision is to state the amount of refund and method of payment.
(2) If the decision does not provide for termination of the contract, the land user may be required to make a refund of cost-share payments or to accept payment adjustments. The decision is to state the amount of refunds of cost-share payments or payment adjustments. In determining amounts of refund or payment adjustments, the following are to be considered:
(i) The extent of the violation.
(ii) Whether the violation was deliberate or the result of negligence or was caused by circumstances beyond the control of the land user.
(iii) The effect on the program if no refund or payment adjustment is required.
(iv) The extent to which the land user benefited by the violation.
(v) The effect of the violation on the contract as a whole.
(vi) Other considerations including the appropriateness and reasonableness of the refund or payment adjustment.
Subpart F – Environment
§ 632.50 Environmental evaluation.
(a) Environmental evaluation is an integral part of planning used by NRCS in developing each reclamation plan under this program. Planning includes site inventory and analysis, evaluation of reasonable alternatives, and identification of significant environmental impacts. Major points in planning when NRCS or the land user can make decisions concerning further action are:
(1) After an evaluation of the application for program assistance to verify eligibility, land user objectives, and priorities for funding.
(2) After a site-specific inventory and analysis to evaluate feasible treatment alternatives, costs, and environmental impacts.
(3) After development of an acceptable reclamation plan as a basis for contract.
(4) Before the signing of a mutually acceptable contract for financial cost-share assistance.
(b) The scope and complexity of the assessment is to be consistent with the scope and complexity of the proposed reclamation.
(c) An interdisciplinary team, consisting of NRCS and/or other cooperating agency personnel as needed, is used in making the assessment.
(d) The Responsible Federal Official (RFO) is to use the environmental evaluation to make a decision concerning the need to prepare an environmental impact statement (EIS) in accordance with § 632.52.
§ 632.51 Accord with environmental laws and orders.
(a) A final program EIS is available in compliance with section 102(2)(c) of the National Environmental Policy Act of 1969 (NEPA). This statement discloses the cumulative program impacts that significantly affect the quality of the human environment.
(b) The program is to be conducted in accordance with other laws and Executive orders concerning environmental protection.
(c) Channelization of streams is prohibited under this program. Channelization as used herein means the overall widening, deepening, realining, or constructing a nonvegetative protective lining over all or part of the perimeter of a perennial stream channel as described in NRCS Channel Modification Guidelines, Part B, Items 4, 5, 6, and 7, as published in the
§ 632.52 Identifying typical classes of action.
(a) The RFO will analyze the environmental assessment of the proposed action to determine which of the following classes of action applies. This determination will be recorded and will be available to the public on request.
(1) Actions not requiring a site-specific EIS. All proposed actions and their impacts that are determined to be adequately discussed in the program EIS or determined not to be major Federal actions will not require a site-specific EIS. However, if the assessment reveals that these proposed actions will have significant adverse effects on the quality of the human environment, the RFO will:
(i) Modify the action to eliminate or mitigate the significant adverse impacts, or
(ii) Withdraw further Federal assistance if significant adverse impacts cannot be eliminated or mitigated.
(2) Actions requiring a site-specific EIS. A site-specific EIS is required for proposed actions if their impacts are not adequately discussed in the program EIS, and the proposal is determined to be a major Federal action significantly affecting the quality of the human environment in accordance with § 650.7(b) of this chapter. When a decision is made to prepare an EIS, a Notice of Intent will be published in the
(3) Actions excluded from the EIS requirements. Those actions taken to prevent loss of life or property under the extreme danger provisions of priority 1 as described in § 632.12. These actions are determined by a limited environmental assessment that reasonably identifies the possible loss of life or property.
PART 633 – WATER BANK PROGRAM
§ 633.1 Purpose and scope.
The regulations in this part set forth the policies, procedures, and requirements for the Water Bank Program (WBP) as administered by the Natural Resources Conservation Service (NRCS) for program implementation.
§ 633.2 Definitions.
The following definitions shall be applicable to this part:
Adjacent land means land on a farm which adjoins designated types 1 through 7 wetlands and is considered essential for the protection of the wetland or for the nesting, breeding, or feeding of migratory waterfowl. Adjacent land need not be contiguous to the land designated as wetland, but cannot be located more than one quarter of a mile away.
Agreement means the document that specifies the obligations and rights of any person who has been accepted for participation in the WBP.
Annual payment means the consideration paid to a participant each year for entering an agreement with the NRCS under the WBP.
Chief means the Chief of the Natural Resources Conservation Service or the person delegated authority to act for the Chief.
Conservation District is a subdivision of a State government organized pursuant to applicable State law to promote and undertake actions for the conservation of soil, water, and other natural resources.
Conservation plan means a written record of the land user’s decision on the use and management of the wetland and adjacent areas covered by the agreement.
Cost-share payment means the payment made by the NRCS to achieve the protection of the wetland functions and values of the agreement area in accordance with the conservation plan.
Landowner means a person or persons having legal ownership of farmland, including those who may be buying farmland under a purchase agreement. Landowner may include all forms of collective ownership including joint tenants, tenants in common, and life tenants and remaindermen in a farm property.
Natural Resources Conservation Service (NRCS) is an agency of the United States Department of Agriculture, formerly called the Soil Conservation Service.
Operator means the person who is in general control of the farming operations on the farm during the crop year.
Person means one or more individuals, partnerships, associations, corporations, estates or trusts, or other business enterprises or other legal entities and, whenever applicable, an Indian tribe, a State, a political subdivision of a State, or any agency thereof.
Practice means a measure necessary or desirable to accomplish the desired program objectives.
Privately-owned means owned or operated by a person other than a State, a political subdivision of a State, or any agency thereof.
State Technical Committee means a committee established by the Secretary of the United States Department of Agriculture in a State pursuant to 16 U.S.C. 3861. The State Conservationist will be the chairperson of the State Technical Committee.
U.S. Fish and Wildlife Service is an agency of the United States Department of the Interior.
Wetlands mean the inland fresh areas defined under 16 U.S.C. 1302 and described as types 1 through 7 in Circular 39, Wetlands of the United States, as published by the United States Department of the Interior.
Wetlands functions and values mean the hydrological and biological characteristics of wetlands and the social worth placed upon these characteristics, including:
(1) Habitat for migratory birds and other wildlife, in particular at risk species;
(2) Protection and improvement of water quality;
(3) Attenuation of water flows due to flooding;
(4) The recharge of ground water;
(5) Protection and enhancement of open space and aesthetic quality;
(6) Protection of flora and fauna which contributes to the Nation’s natural heritage; and
(7) Contribution to educational and scientific scholarship.
WBP means the Water Bank Program.
§ 633.3 Administration.
(a) The regulations in this part will be administered under the general supervision and direction of the Chief.
(b) As determined by the Chief and the Administrator of the Farm Service Agency, the NRCS will seek the agreement of the Farm Service Agency in establishing policies, priorities, and guidelines related to the implementation of this part.
(c) The State Conservationist will consultation with the State Technical Committee, on program administration and related policy matters. No determination by the State Technical Committee shall compel the NRCS to take any action which the NRCS determines will not serve the purposes of the program established by this part.
(d) The NRCS may enter into cooperative agreements with Federal or State agencies and with private conservation organizations to assist the NRCS with educational efforts, agreement management and monitoring, program implementation assistance, and to assure a solid technical foundation for the program.
(e) The NRCS shall consult with the U.S. Fish and Wildlife Service in the implementation of the program and in establishing program policies.
(f) The Chief may allocate funds for such purposes related to special pilot programs for wetland management and monitoring, emergencies, cooperative agreements with other Federal or State agencies for program implementation, coordination of enrollment across State boundaries, or for other goals of the WBP found in this part.
§ 633.4 Program requirements.
(a) General. Under the WBP, the NRCS will enter 10-year agreements with eligible persons who voluntarily cooperate in the protection of wetlands and associated lands. To participate in WBP, a person will agree to the implementation of a conservation plan, the effect of which is to protect, enhance, maintain, and manage the hydrologic conditions of inundation or saturation of the soil, native vegetation, and natural topography of eligible lands. The NRCS may provide cost-share assistance for the activities that promote the protection of wetland functions and values. Specific protection actions may be undertaken by the participant or other NRCS designee.
(b) Participant eligibility. To be eligible to participate in the WBP, a person must:
(1) Be the landowner of eligible land for which enrollment is sought; or
(2) Have possession of the land by written lease over all designated acreage in the agreement for at least two years preceding the date of the agreement and will have possession over the all designated acreage for the agreement period.
(c) Eligible land. (1) The NRCS shall determine whether land is eligible for enrollment and whether, once found eligible, the lands may be included in the program based on the likelihood of successful protection of wetland functions and values when considering the cost of entering the agreement and protection costs. Land placed under an agreement shall be specifically identified and designated for the period of the agreement.
(2) The following land is eligible for enrollment in the WBP:
(i) Privately owned inland fresh wetland areas of types 1 through 7.
(ii) Privately owned inland fresh wetland areas of types 1 through 7 which are under a drainage easement with the U.S. Department of the Interior or with a State government which permits agricultural use; or
(iii) Other privately owned land which is adjacent to or within one quarter mile of designated types 1 through 7 wetlands and which is determined by the State Conservationist to be essential for the nesting, breeding, or feeding of migratory waterfowl, or for the protection of wetland.
(d) Ineligible land. The following land is not eligible for enrollment in the WBP:
(1) Converted wetlands if the conversion was in violation of 16 U.S.C. 3821 et seq.;
(2) Lands owned by an agency of the United States other than land held in trust for Indian Tribes;
(3) Land which is set aside or diverted under any other program administered by the Department of Agriculture;
(4) Land which is harvested in the first year of the agreement period prior to being designated, except for land on which timber is harvested in accordance with a Forest Management Plan which is included in the conservation plan and is approved by the State forester or equivalent State official;
(5) Lands where implementation of agreement practices would be futile due to on-site or off-site conditions; and
(6) Land on which the ownership has changed during the 2-year period preceding the first year of the agreement period unless:
(i) The new ownership was acquired by will or succession as a result of the death of the previous owner,
(ii) The land was acquired by the owner or operator to replace eligible land from which he was displaced because of its acquisition by any Federal, State, or other agency having the right of eminent domain, or
(iii) The new owner operated the land to be designated for as long as 2 years preceding the first year of the agreement and has control of such land for the agreement period.
§ 633.5 Application procedures.
(a) Application for participation. To apply for enrollment, a person must submit an application for participation in the WBP.
(b) Preliminary agency actions. The NRCS must certify that the designated acreage that would be placed under an agreement constitutes a viable wetland unit, contains sufficient adjacent land to protect the wetland, and provides essential habitat for the nesting, breeding or feeding of migratory waterfowl.
(c) Where funds allocated to the State do not permit accepting all requests which are filed, the State Conservationist, in consultation with the State Technical Committee, may establish ranking criteria and limit the approval of requests for agreements in accordance with the ranking scheme. Any ranking scheme shall consider estimated costs of the agreement, costs of protection, availability of matching funds, significance of wetland functions and values, and estimated success of protection measures.
(d) The NRCS may place higher priority on certain geographic regions of the State where the protection of wetlands may better achieve NRCS State and regional goals and objectives.
(e) Notwithstanding any limitation of this part, the State Conservationist may enroll eligible lands at any time in order to encompass total wetland areas subject to multiple ownership or otherwise to achieve program objectives. Similarly, the State Conservationist may, at any time, exclude otherwise eligible lands if the participation of the adjacent landowners is essential to the successful protection of the wetlands and those adjacent landowners are unwilling to participate.
§ 633.6 Program participation requirements.
(a) WBP Agreement. An agreement shall be executed for each participating farm. The agreement shall be signed by the owner of the designated acreage and any other person who, as landlord, tenant, or share cropper, will share in the payment or has an interest in the designated acreage. There may be more than one agreement for a farm.
(b) Agreement period. The agreement period shall:
(1) Be for a term of 10 years;
(2) Become effective on January 1 of the year in which the agreement is approved except that the agreement shall become effective on January 1 of the next succeeding year in cases where, at the time the agreement is approved, the NRCS determines that the agreement signers will be unable to comply with the provisions of paragraph (c) of this section in the year in which such agreement is approved.
(c) Agreement terms and conditions. The acreage designated under an agreement shall:
(1) Be maintained for the agreement period in a manner which will preserve, restore, or improve the wetland character of the land;
(2) Not be drained, burned, filled, or otherwise used in a manner which would destroy the wetland character of the acreage, except that the provisions of this paragraph shall not prohibit the carrying out of management practices which are specified in a conservation plan for the farm;
(3) Not be used as a dumping area for draining other wetlands, except where the State Conservationist determines that such use is consistent with the sound management of wetlands and is specified in the conservation plan;
(4) Not be used as a source of irrigation water;
(5) Not be used for the harvesting of a crop;
(6) Not be hayed except for during periods of severe drought and only under conditions prescribed by the State Conservationist in consultation with the Secretary of the Interior or his designee; and
(7) Not be grazed, except as may be specified in the conservation plan.
§ 633.7 Annual payments.
(a) Person on the farm having an interest in the designated acreage, including tenants and sharecroppers, shall be eligible for an annual payment in the manner agreed upon by them as representing their respective contributions to compliance with the agreement. The State Conservationist shall not approve an agreement if it is determined that the proposed division of payment is not fair and equitable.
(b) The annual per acre payment rates for wetlands and for adjacent land shall be determined for each county by the State Conservationist, based on recommendations of the State Technical Committee.
(c) Maximum payments. In order to ensure that limited program funds are expended to maximize program benefits, the State Conservationist, in consultation with the State Technical Committee, may establish uniform maximum annual payment limits for agreements within a State or for geographic areas within a State.
(d) Preliminary estimates of annual payments. Upon request prior to filing an application for enrollment, a person may be apprised of the maximum annual payment rates.
(e) Adjustment of annual rates. (1) The State Conservationist, in consultation with the State Technical Committee, shall reexamine the payment rates with respect to each agreement at the beginning of the fifth year of any ten-year initial or renewal period and before the renewal expires.
(2) An adjustment in the payment rates shall be made for any initial or renewal period taking into consideration the current land rental rates and crop values in the area. No adjustment shall be made in a payment rate which will result in a reduction of an annual payment rate from the rate which is specified in the initial or renewal agreement.
(3) The rate or rates of annual payments may be increased if the program participant permits access by the general public to the designated acreage for hunting, trapping, fishing, and hiking, subject to applicable State and Federal regulations.
(a) In addition to annual payments, the NRCS may share the cost with program participants of protecting the wetland functions and values of the enrolled land as provided in the conservation plan. The NRCS may pay up to 75 percent of such costs.
(b) Cost-share payments may be made only upon a determination by the NRCS that an eligible practice or an identifiable unit of the practice has been established in compliance with appropriate standards and specifications. Identified practices may be implemented by the program participant or other designee.
(c) A program participant may seek additional cost-share assistance from other public or private organizations as long as the activities funded are in compliance with this part. In no event shall the program participant receive an amount which exceeds 100 percent of the total actual cost of the practices.
§ 633.9 Conservation plan.
(a) The program participant, with assistance from NRCS and in consultation with the Conservation District, shall prepare a conservation plan for the acreage designated under an agreement.
(b) The conservation plan is the basis for the agreement and is incorporated therein. It includes a schedule of conservation treatment and management required to protect and to maintain the wetland and adjacent land as a functional wetland unit for the life of the agreement.
(c) Conservation treatment and management of the vegetation for wetland protection, wildlife habitat, or other authorized objectives are consistent with the program objectives and priorities.
§ 633.10 Modifications.
The NRCS may approve modifications to the agreement or associated conservation plan after consultation with the Conservation District. Any modification must meet WBP program objectives, and must be in compliance with this part.
§ 633.11 Transfer of interest in an agreement.
(a) If the ownership or operation of a farm changes in such a manner that the agreement no longer contains the signatures of the persons required by § 633.6(a) to sign the agreement, the agreement shall be modified to reflect the new interested persons and new divisions of payments.
(b) If such persons are not willing to become parties to the modified agreement or for any other reason a modified agreement is not executed, the agreement shall be terminated and all unearned payments shall be forfeited or refunded.
(c) The annual payment for the year in which the change of ownership or operation occurs shall not be considered to have been earned unless the designated acreage is continued in the program and there is compliance with the agreement for the full agreement year.
(d) The signatories to the agreement prior to the change of ownership or operation shall be jointly and severally responsible for refunding the unearned payments previously made.
§ 633.12 Termination of agreements.
(a) The State Conservationist may, by mutual agreement with the parties to the agreement, consent to the termination of the agreement where:
(1) The parties to the agreement are unable to comply with the terms of the agreement as the result of conditions beyond their control;
(2) Compliance with the terms of the agreement would work a severe hardship on the parties to the agreement; or
(3) Termination of the agreement would be in the public interest.
(b) If an agreement is terminated in accordance with the provisions of this section, the annual payment for the year in which the agreement is terminated shall not be considered to have been earned unless there is compliance with the terms and conditions of the agreement for the entire calendar year.
§ 633.13 Violations and remedies.
(a) In the event of a violation of an agreement or any associated conservation plan, the parties to the agreement shall be given reasonable notice and an opportunity to voluntarily correct the violation within 30 days of the date of the notice, or such additional time as the State Conservationist may allow.
(b) In addition to any and all legal and equitable remedies as may be available to the NRCS under applicable law, the NRCS may withhold any annual or cost-share payments owing to the parties of the agreement at any time there is a material breach of the agreement or any conservation plan. Such withheld funds may be used to offset costs incurred by the NRCS in any remedial actions or retained as damages pursuant to court order or settlement agreement.
(c) The NRCS shall be entitled to recover any and all administrative and legal costs, including attorney’s fees or expenses, associated with any enforcement or remedial action.
§ 633.14 Debt collection.
Any debts arising under this program are governed with respect to their collection by the Federal Claims Collection Act of 1966 (31 U.S.C. 3701) and the regulations found in 4 CFR chapter II.
§ 633.15 Payments not subject to claims.
(a) Any payments due any person shall be determined and allowed without regard to State land and without regard to any claim or lien against any crop, or proceeds thereof, which may be asserted by any creditor, except as provided in paragraph (b) of this section.
(b) The regulations governing setoffs and withholdings, in part 13 of this title, as amended, shall be applicable to this program.
§ 633.16 Assignments.
Any person entitled to any cash payment under this program may assign the right to receive such cash payments, in whole or in part.
§ 633.17 Appeals.
(a) Any person may obtain reconsideration and review of determinations affecting participation in this program in accordance with part 614 of this chapter.
(b) Before a person may seek judicial review of any action taken under this part, the person must exhaust all administrative appeal procedures set forth in paragraph (a) of this section, and for purposes of judicial review, no decision shall be a final agency action except a decision of the Chief of NRCS under these procedures.
§ 633.18 Scheme and device.
(a) If it is determined by the NRCS that a person has employed a scheme or device to defeat the purposes of this part, any part of any program payment otherwise due or paid such person during the applicable period may be withheld or be required to be refunded with interest thereon, as determined appropriate by the NRCS.
(b) A scheme or device includes, but is not limited to, coercion, fraud, misrepresentation, depriving any other person of an annual payment or payments for cost-share practices for the purpose of obtaining a payment to which a person would otherwise not be entitled.
(c) A program participant who succeeds to the responsibilities under this part shall report in writing to the NRCS any interest of any kind in enrolled land that is held by a predecessor or any lender. A failure of full disclosure will be considered a scheme or device under this section.
PART 634 – RURAL CLEAN WATER PROGRAM
Subpart A – General
§ 634.1 Purpose and scope.
(a) The purpose of this part is for the U.S. Department of Agriculture (USDA), with the concurrence of the U.S. Environmental Protection Agency (EPA), to set forth regulations to carry out a Rural Clean Water Program (RCWP) under section 35, Pub. L. 95-217; 91 Stat. 1579; 33 U.S.C. 1288.
(b) The Rural Clean Water Program provides financial and technical assistance to private landowners and operators (participants) having control of rural land. The assistance is provided through long-term contracts (5 to 10 years) to install best management practices (BMP’s) in project areas which have critical water quality problems resulting from agricultural activities. The proposed project area must be within a high priority area in an approved agricultural portion of a 208 water quality management plan. Participation in RCWP is voluntary.
(c) The program is a new USDA program and an extension of existing water-quality management programs of EPA.
§ 634.2 Objective.
The RCWP is designed to reduce agricultural nonpoint source pollutants to improve water quality in rural areas to meet water quality standards or water quality goals. The objective is to be achieved in the most cost-effective manner possible in keeping with the provision of adequate supplies of food and fiber and a quality environment.
§ 634.3 Administration.
At the national level, the Secretary of Agriculture, with the concurrence of the Administrator, EPA, administers RCWP. The Secretary of Agiculture has delegated responsibility for administration of the program (43 FR 8252) to the Administrator, Natural Resources Conservation Service (NRCS). NRCS will be assisted by other USDA agencies in accordance with existing authorities.
(a) A National Rural Clean Water Coordinating Committee (NRCWCC), chaired by the Administrator, NRCS, is to assist in carrying out the Rural Clean Water Program.
(b) At the State level, a State Rural Clean Water Coordinating Committee (SRCWCC) is to assist the State Conservationist, NRCS, in administering the program. The State Conservationist will chair the SRCWCC.
(c) To assure coordination at the project level, a local Rural Clean Water Coordinating Committee is to be established at the time the application is developed. An existing local committee may be used, where practicable, to perform the functions of this committee.
(d) The Administrator, NRCS, through the State Conservationists, NRCS, is to enter into agreements, where practicable, with soil conservation districts, State soil and water conservation agencies, or State water quality agencies to administer all or part of the program for a project area. That portion of program administration to be conducted by these agencies will be defined in the project application and grant agreement. Where this is not practicable, USDA will administer the program in a project area. In those instances where USDA retains administration of the program in a project area, NRCS will enter into agreements for the transfer of funds to the Agricultural Stabilization and Conservation Service (ASCS) for the administration of part of the program.
§ 634.4 Responsibilities.
(a) Environmental Protection Agency (EPA) will –
(1) Approve 208 water quality management plans,
(2) Participate in the National and State Rural Clean Water Coordinating Committees,
(3) Review and concur in project applications approved for funding in accordance with § 634.14,
(4) Advise the Secretary of Agriculture of practices which tend to defeat the purposes of contracts with rural landowners or operators in accordance with section 208(j)(1)(iv) of the act,
(5) Assist USDA in evaluating the effectiveness of the program in improving water quality, and
(6) Concur in the selection of project areas and the criteria for comprehensive, joint USDA-EPA water quality monitoring, evaluation, and analysis in accordance with § 634.50.
(b) U.S. Department of Agriculture (USDA) will –
(1) With the concurrence of EPA, administer a program to enter into contracts to install and maintain best management practices to control agricultural nonpoint source pollution for improved water quality,
(2) Act through NRCS and such other USDA agencies as the Secretary may designate,
(3) Provide technical assistance and share the cost of carrying out best management practices that are set forth in the contracts,
(4) Where practicable, enter into agreements with soil conservation districts, State soil and water conservation agencies, or State water quality agencies to administer all or part of the program for a project area,
(5) Administer the program where it is not practicable for soil conservation districts, State soil and water conservation agencies, or State water quality agencies to administer all or part of the program for a project area,
(6) Together with local soil conservation districts, determine the priorities for assistance to individual participants to assure that the most critical water quality problems are addressed,
(7) Assist in evaluating the overall effectiveness of the program in improving water quality, and
(8) Within the framework of the 208 planning process, make additional investigations or plans, where necessary, to supplement information contained in the approved agricultural portion of 208 water quality management plans for the purpose of selecting among projects to be funded.
(c) Natural Resources Conservation Service (NRCS) will –
(1) Provide RCWP leadership,
(2) Retain major technical responsibility for RCWP, and provide leadership to assure the adequacy of standards and specifications for use by all administering agencies,
(3) Manage budgeting, accounting, and reporting,
(4) Chair NRCWCC and assure that RCWP applications are distributed to the NRCWCC, including EPA, for review,
(5) For the Secretary of Agriculture, with the concurrence of the Administrator, EPA, approve RCWP projects for funding,
(6) For the Secretary of Agriculture, select and enter into agreements with either soil conservation districts, State soil and water conservation agencies, or State water quality agencies, where practicable, to adminster all or part of the program,
(7) Enter into fund transfer agreements to transfer funds to ASCS in those instances where the administration of contracts is retained by USDA,
(8) Enter into agreements with other USDA agencies, as appropriate, for support which they are to provide,
(9) Chair SRCWCC,
(10) For the Secretary of Agriculture, in coordination with NRCWCC, determine the maximum Federal contribution to the total cost of the project,
(11) Provide technical assistance through soil conservation districts or arrange for other Federal, State, local agencies, or private individuals or firms to provide technical assistance as appropriate,
(12) Provide technical assistance to soil conservation districts and County Agricultural Stabilization and Conservation (ASC) Committees to assist them in determining priorities of assistance among individual participants,
(13) Develop appropriate technical and administrative training programs,
(14) Provide leadership for USDA for comprehensive joint USDA-EPA water quality monitoring, evaluation, and analysis in selected project areas,
(15) Provide leadership for USDA in evaluating the effectiveness of the program in improving water quality,
(16) Carry out the function of soil conservation districts for approving water quality plans where no soil conservation district exists, and
(17) Through the State Conservationist, after considering recommendations of the SRCWCC, reach agreement with the Governor on the recommended administering agency to be included in the project application.
(d) The Agricultural Stabilization and Conservation Service (ASCS) will –
(1) Participate on the National, State, and local coordinating committees.
(2) Provide guidance to State and County ASC Committees and coordinate the Agricultural Conservation Program (ACP) and the Forestry Incentives Program (FIP) with RCWP,
(3) Where the administration of contracts is retained by USDA, enter into agreements with NRCS for the transfer of funds to be allocated to County ASC Committees,
(4) Consolidate reports of the annual cost-share disbursements made by the State ASC Committee, and report these disbursements to NRCS,
(5) Furnish data on land use, crop history, and cost-shared conservation measures,
(6) Review plans and contracts to assure coordination with other farm programs, and
(e) The Forest Service (FS) will –
(1) Retain technical responsibility for forestry,
(2) Provide technical assistance through the State forestry agency (State Forester as appropriate) for planning, applying, and maintaining forestry best management practices, and
(3) Participate on the National, and as appropriate, State, and local coordinating committees.
(f) The Science and Education Administration (SEA) will –
(1) Develop, implement, and coordinate educational programs for agricultural nonpoint source water pollution control,
(2) Participate on the National, and as appropriate, State, and local coordinating committees, and
(3) Provide technical assistance for appropriate BMP’s.
(g) The Economics, Statistics, and Cooperatives Service (ESCS) will:
(1) Participate on the National coordinating committee and, as appropriate, participate in State, and local coordinating committee activities,
(2) Assist in the economic evaluation of best management practices and RCWP projects,
(3) Make data available from existing and planned ESCS surveys relating to water quality and related matters,
(4) Assist in RCWP evaluation by making available the ESCS land and water resource economic modeling systems, and
(5) Conduct socioeconomic research, within ESCS authorities and funds, on relevant policy and program issues pertinent to RCWP.
(h) The Farmers Home Administration (FmHA) will –
(1) Participate on the National, and as appropriate, State and local coordinating committees, and
(2) Provide assistance and coordinate their farm loan and grant programs with RCWP.
(i) The NRCWCC is chaired by the Administrator, NRCS. Other members of the National Committee are the Administrators of ASCS, FmHA, and ESCS; the Chief of FS; the Director of SEA; and the Assistant Administrator for Water and Waste Management, EPA. Non-Federal agencies such as conservation districts, State soil and water conservation agencies, State water quality agencies, and other organizations are invited to attend as observers. The duties of the Committee are to:
(1) Coordinate individual agency programs with the Rural Clean Water Program,
(2) Recommend to the Administrator, NRCS, the project applications to be funded,
(3) Advise the Administrator, NRCS, on the maximum Federal contribution to the total cost of the project,
(4) Assist the Administrator, NRCS, in mediating agency differences at the State level,
(5) Periodically advise the Secretary and Assistant Secretary for Conservation, Research and Education of program and policy issues, and
(6) Recommend project areas and criteria for comprehensive, joint USDA/EPA water quality monitoring, evaluation, and analyses.
(j) The SRCWCC is chaired by the State Conservationist, NRCS. Other members of the State committee are the State 208 water quality agency, a designated representative of the areawide agencies, the State soil and water conservation agency, a designated representative of soil and water conservation districts, other State and local agencies or individuals as the Governor deems appropriate, and representatives of the agency members of the NRCWCC. The duties of the committee are to insure that a process exists:
(1) To consult with the Governor or his designee on the Governor’s determination of priority project areas,
(2) To assure coordination of activities at the project level by assisting in determining the composition and responsibilities of the local rural clean water coordinating committee,
(3) To prepare the RCWP applications for the Governor to submit to the State Conservationist, NRCS, based on priorities established by the Governor,
(4) To incorporate adequate public participation, including public meeting(s), and appropriate environmental assessment in the preparation of RCWP applications,
(5) To monitor and evaluate the RCWP in the State and to assist USDA and EPA in their comprehensive, joint water quality monitoring and evaluation of selected project areas in accordance with § 634.50,
(6) To develop procedures for coordination between conservation districts and county ASC committees and between RCWP and other water quality programs at the local level,
(7) To assist the State Conservationist, NRCS, in mediating agency differences at the local level,
(8) To initiate a written agreement setting forth any or all of the above activities when the Governor and the Secretary of Agriculture or his designee deem it appropriate, and
(9) To make recommendations to the State Conservationist, NRCS, concerning the selection of the administering agency to be included in the project application.
(k) The State soil and water conservation agency will, as appropriate:
(1) Assist in preparing and submitting applications for RCWP,
(2) Administer all or part of the RCWP for a project area,
(3) Carry out the responsibilities of soil conservation districts for determining priority for assistance among individual participants where no soil conservation district exists, and
(4) Participate on the State and local coordinating committees.
(l) The State 208 water quality agency will, as appropriate:
(1) Assist in preparing and submitting applications for rural clean water projects,
(2) Administer all or part of the RCWP for a project area,
(3) Participate on the State and local coordinating committees, and
(4) Assist in monitoring and evaluating the water quality effectiveness of projects.
(m) The soil conservation district will:
(1) As appropriate, assist in the preparation and submission of applications for rural clean water projects,
(2) As appropriate, administer all or part of the RCWP in a project area.
(3) As appropriate, participate on the local coordinating committees,
(4) Approve participants’ water quality plans, and
(5) Together with the county ASC Committee, determine the priority for assistance among individual participants to assure that the most critical water quality problems are addressed.
(n) The county ASC committee will:
(1) Together with the soil conservation district, determine the priorty for assistance among individual participants to assure that the most critical water quality problems are addressed,
(2) Receive applications for assistance for individual participants where USDA retains administration of the program,
(3) Make cost-share payments to individual participants where USDA retains administration of the program, and
(4) As appropriate, participate on the local coordinating committees.
(o) The designated management agency(s) for the agricultural portion of a 208 plan for the project area will:
(1) Assist in preparing and submitting an application for a rural clean water project in an area for which they were designated,
(2) Submit a letter, as part of the project application, certifying that the BMP’s proposed for cost sharing are consistent with the BMP’s in the approved 208 plan,
(3) Submit a letter, including a schedule, giving assurance that an adequate level of participation in the project will be achieved within 5 years, and
(4) As appropriate, serve as the administering agency.
(p) The administering agency will:
(1) As appropriate, enter into a grant agreement or fund transfer agreement with the Natural Resources Conservation Service for:
(i) Receiving funds from the Natural Resources Conservation Service for administrative costs, cost sharing, and technical assistance, as appropriate, associated with carrying out the project,
(ii) Establishing detailed work schedules in accordance with the approved project application,
(iii) Establishing the maximum amount of administrative costs chargeable to the grant,
(iv) Establishing an adequate financial management system,
(v) Preparing a cost allocation plan,
(vi) Monitoring and reporting performance,
(vii) Reviewing applications for assistance from landowners or operators,
(viii) Certifying availability of funds, and
(ix) Complying with OMB Circular A-102 and other appropriate regulations,
(2) Enter into contracts with participants for the installation and maintenance of BMP’s based on water quality plans developed by participants,
(3) Make cost-share payments to participants upon receipt of certification by NRCS,
(4) Issue modifications to participant RCWP contracts,
(5) Develop average cost rates for each practice applicable in the project area.
(6) Sample and inspect materials used in the installation of BMP’s,
(7) Establish a contract violations and appeals and collections process,
(8) Provide for public involvement in the implementation of RCWP in a project area, and maintain a mailing list of interested individuals and organizations for informing the public about the activities contemplated and carried out in the project area, and
(9) Maintain records, provide necessary facilities, personnel, and legal counsel for carrying out these responsibilities.
(q) The Governor of each State will:
(1) In order to qualify for assistance under RCWP:
(i) Establish priorities for RCWP project areas in the State,
(ii) Coordinate the development of RCWP project applications with the SRCWCC and local agencies,
(iii) Submit, in order of priority, RCWP project applications to the Administrator, NRCS, through the State Conservationist, NRCS, and
(iv) Recommend an eligible State or local agency to serve as the administering agency of the project, or request USDA to be the administering agency.
(2) Where appropriate, with the State Conservationist, NRCS, set forth the activities of the SRCWCC in a written agreement,
(3) Assign additional State and local agencies or individuals to membership on the SRCWCC, as appropriate, and
(4) Reach agreement with the State Conservationist, NRCS, in selecting the administering agency.
§ 634.5 Definitions.
(a) Adequate level of participation. An adequate level of participation is reached when participants, having control of 75 percent of the identified critical area or source of the pollution problem in the project area, are under contract. Exceptions may be made where the approved agricultural portion of the 208 plan provides data and analyses which indicate that a greater or lesser percentage of the critical area or source treated is needed to attain water quality standards or water quality goals. Fifty (50) percent of the adequate level of participation is to be achieved within 3 years; the remainder within 5 years.
(b) Administering agency. A soil conservation district, State soil and water conservation agency, or State water quality agency that enters into an agreement with the State Conservationist, NRCS, to administer assigned responsibilities for RCWP projects; or ASCS, when USDA retains contract administration.
(c) Administrative cost. Grant and fund transfer costs, including allowable costs incurred by the Administering agency in contract administration. These costs, indirect and direct, include charges for personnel, travel, materials, and supplies. The costs are limited to a maximum of 5 percent of the Federal share for BMP cost.
(d) Agreement. A legal instrument reflecting the relationship between NRCS and the administering agency for performance of RCWP activities.
(e) Agricultural nonpoint source pollution. Pollution originating from existing nonpoint sources that are (a) agriculturally related, including runoff from animal waste disposal areas and from land used for livestock and crop production, or (b) silviculturally related pollution.
(f) Agricultural portion of a 208 plan. That portion of the 208 plan that deals with agriculture and those silvicultural activities related to farming and ranching enterprises.
(g) Appeals board. A group of three or more individuals, including a hearing officer, established by the administering agency with the concurrence of the State conservationist, NRCS, to review asserted contract violations, hear associated appeals, and report its findings, conclusions, decisions, and recommendations in State or locally administered projects.
(h) Average cost. The calculated cost, determined by recent actual local costs and current cost estimates, considered necessary for carrying out BMP’s or an identifiable unit thereof.
(i) Best Management Practice (BMP). A single practice or a system of practices included in the approved RCWP application that reduces or prevents agricultural nonpoint source pollution to improve water quality.
(j) BMP cost. The amount of money actually paid or obligated to be paid by the participant for equipment use, materials, and services for carrying out BMP’s or an identifiable unit of a BMP. If the participant uses his or her own resources, the cost includes the computed value of his or her own labor, equipment use, and materials.
(k) Contract. The legal document, that includes the water-quality plan and is executed by the participant and the administering agency. It details the agreement between parties for carrying out BMP’s on the participant’s land.
(l) Cost-share level. The percentage of the total cost of installing BMP’s included in the participant’s contract that is paid by the administering agency.
(m) Critical areas or sources. Those finite areas or sources of agricultural nonpoint source pollutants identified as having the most significant impact on the quality of the receiving waters.
(n) Federal Management Circular FMC 74-4. “Cost Principles Applicable to Grants and Contracts with State and Local Governments.”
(o) Financal burden. The participant’s contribution to the total cost of BMP’s that would be inequitable or probably prevent participation in RCWP.
(p) Identifiable unit. A component of a BMP that can be clearly identified in carrying out BMP’s in the water quality plan.
(q) Letter of Credit – Treasury Regional Disbursing Officer System. The system whereby the letters of credit are maintained and serviced by Treasury disbursing centers and Treasury regional disbursing officers.
(r) Management agency. The Federal, State, interstate, regional, or local agency designated by the Governor to carry out the approved agricultural portion of the 208 water-quality management plan.
(s) OMB Circular A-34. “Instructions on Budget Execution.”
(t) OMB Circular A-102 (Rev.) Office of Management and Budget Uniform Administrative Requirements for Grants-in-Aid to State and local governments.
(u) Offsite benefits. Those favorable effects of BMP’s that occur away from the land of the participant receiving RCWP assistance and accrue to the public as a result of improved water quality.
(v) Participant. A landowner or operator who applies for and receives assistance under RCWP.
(w) Participants water quality plan. The plan which identifies critical agricultural nonpoint source(s) of water quality problems and sets forth BMP’s which contribute to meeting the water quality objectives of the project.
(x) Privately owned rural land. Those lands not held by Federal, State, or local governments which include cropland, pastureland, forest land, rangeland, and other associated lands.
(y) RCWP projects. The total system of BMP’s, institutional arrangements, and technical, cost-sharing, and administrative assistance activities that are authorized in a RCWP project area.
(z) Standards and specifications. Requirements that establish the minimum acceptable quality level for planning, designing, installing, and maintaining BMP’s.
(aa) State. Any of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Marianas, and the Trust Territory of the Pacific Islands.
(bb) Technical assistance cost. Those direct and indirect costs associated with the preparation and review of participant water quality plans; design, layout and application of BMP’s; and investigations associated with monitoring and evaluating progress toward meeting project objectives.
(cc) Treasury Circular 1075 (Rev.). Uniform Administrative Requirements for Grants-in-Aid to State and local governments.
Subpart B – Project Authorization and Funding
§ 634.10 Applicability.
RCWP is applicable in project areas that meet the criteria for eligibility contained in § 634.12 and are authorized for funding by the Administrator, NRCS.
§ 634.11 Availability of funds.
(a) The provisions of the program are subject to the appropriation of funds by Congress to the U.S. Department of Agriculture.
(b) The allocation of funds to the administering agencies is to be made on the basis of the total funds needed to carry out the project.
(c) The obligation of Federal funds for RCWP contracts with participants is to be made on the basis of the total contract costs.
§ 634.12 Eligible project areas.
(a) Only those project areas which are included in an approved agricultural portion of a 208 water quality management plan, or revised portions thereof, and have identified agricultural nonpoint source water quality problems are eligible for authorization under RCWP. Those critical areas or sources of pollutants significantly contributing to the water quality problems are eligible for financial and technical assistance.
(b) The management agency designated by the Governor under section 208(c)(1) of the Act to implement the agricultural portion of the 208 plan must assure in writing in the project application that there will be an adequate level of participation by land owners or operators with critical areas or sources in a project area.
(c) An RCWP project area is a hydrologically related land area. Exceptions may be made for ease of administration, or to focus on concentrated critical areas. To be designated as an RCWP project area eligible for authorization, the area’s water quality problems must be related to agricultural nonpoint source pollutants, including sediment animal waste, irrigation return flows, runoff, or leachate that contain high concentrations of nitrogen, phosphorus, dissolved solids, toxics (pesticides and heavy metals), or high pathogen levels. Generally, the project areas will be less than 200,000 acres.
§ 634.13 Project applications.
(a) The SRCWCC is to assure that a process exists to prepare the RCWP project applications for submission by the Governor in order of priority to the Administrator, NRCS, through the State Conservationst, NRCS. This process must include the opportunity for public participation, especially participation by potential RCWP participants. Applications will be submitted in conformance with OMB Circular A-95.
(b) The preparation and submission of applications are to be based on the priorities established by the Governor and data and information in the approved agricultural portion of the State or areawide 208 water quality management plan.
(c) Applications shall contain the following components. Additional material may be added when, in the judgment of the applicant, it is needed to fully support the application and/or would enhance the probability of project authorization. Information provided under each component shall be in sufficient detail to permit the NRCWCC to evaluate the application using priority criteria in § 634.14.
(1) Description of the project area,
(2) Severity of the water quality problem
(3) Objectives and planned action,
(4) Schedule for carrying out the plan, and
(5) Estimated cost. This component is to identify and show the basis for those costs associated with completing the project. The project application shall include an estimate of the total cost of the project, the Federal contribution, and the non-Federal contribution. The Federal contribution shall not exceed 50 percent unless the application, based on offsite benefits and financial burden, show that a higher level is appropriate.
(6) Estimated water quality benefits and effects.
(7) Arrangements for project administration. This component is to set out the applicant’s plan for carrying out the program in the project area. The plan should:
(i) Identify the administering agency and document the capability of the agency to carry out the responsibilities described in § 634.4(p). In addition, information should be included to describe the administering agency staff, the location of that staff relative to the project area, and the experience of the agency in administering comparable grant programs.
(ii) Where appropriate, describe the specific arrangements that have been made, or that are anticipated, for local, State, and Federal agency participation such as technical assistance and other cost-sharing programs.
(8) Attachments. The following attachments are the minimum required with each application:
(i) A letter from the water-quality management agency designated by the Governor to carry out the approved agricultural portion of the 208 water quality management plan for the area or source certifying that the BMPs to be cost shared are consistent with the BMP’s in the 208 plan,
(ii) A letter from the designated management agency which assures and sets out a strategy for reaching an adequate level of participation (§ 634.5(a)).
(iii) As appropriate, the preapplication for Federal assistance (OMB Circular A-102) from the identified administering agency, and
(iv) A listing of the prevailing cost-share levels of other programs in the project area.
§ 634.14 Review and approval of project applications.
(a) In reviewing applications and recommending priorities, the NRCWCC will consider the following:
(1) Severity of the water quality problem caused by agricultural and silvicultural related pollutants, including:
(i) State designated uses of the water affected,
(ii) Kinds, sources, and effects of pollutants, and
(iii) Miles of stream or acres of water bodies affected,
(2) Demonstration of public benefits from the project, including:
(i) Effects on human health,
(ii) Population benefited by improved water quality,
(iii) Effects on the natural environment, and
(iv) Additional beneficial uses of the waters that result from improvement of the water quality,
(3) Economic, and technical feasibility to control water quality problems within the life of the project, including:
(i) Cost effectiveness of BMP’s,
(ii) Size of the area and BMP’s needed, and
(iii) Cost per participant and cost per acre for solution of problem,
(4) State and local input in the project area, including:
(i) Funds for cost-sharing, technical, and administrative costs. States or local governments with their own cost-share programs may receive greater consideration for the funding of RCWP projects,
(ii) Commitment of local leadership to promote the program, and
(5) The project area’s contribution to meeting the national water quality goals.
(b) Based on the project applications, the NRCWCC is to recommend an upper limit of the Federal contribution to the total cost of the project.
(c) All project applications will be reviewed by EPA. Project applications approval for funding require written EPA concurrence, except that the Administrator, NRCS, may assume EPA’s concurrence if EPA does not act within 45 days following receipt of the project application. EPA review of project applications will occur concurrently with review by the NRCWCC.
(d) The Administrator, NRCS, will approve projects for funding. The NRCWCC acting through the Chairman will announce the approval of the project. The State Conservationist, NRCS, through the SRCWCC, will also inform the other involved Federal, State, and local agencies of the approval.
§ 634.15 Agreements.
The State Conservationist, NRCS, upon receiving notice of an approved project, is to enter into a grant agreement with the administering agency, except in those cases where USDA is to administer the program. When USDA retains administration, the State Conservationist, NRCS, is to enter into a fund transfer agreement with the State Executive Director, ASCS.
(a) Grant agreements. Grant agreements detail the working arrangements and applicable operating regulations between NRCS and the administering agency. A written grant agreement identifying the parties involved, their responsibilities for carrying out the program, and the amount of program funds to be encumbered by NRCS is to be executed by the parties. This agreement is the fund obligating document. It also sets out the necessary working arrangements between parties for determining and allocating the administering agency’s costs. All grants to administering agencies are to be in accordance with OMB Circular No. A-102, Department of the Treasury Circular No. 1075, and Federal Management Circular No. 74-4. State or local administering agency grants will be funded under Letter-of-Credit serviced by the U.S. Treasury Regional Disbursing Office, or by NRCS approved advance/reimbursement financing arrangements subject to the terms and conditions of the grant agreement.
(1) The grant agreement will provide for payment of cost-sharing for BMP (§ 634.5(j)) and administrative costs (§ 634.5(c)).
(2) The grant agreement may provide for payment of technical assistance costs when the administering agency has the capability, and the NRCS designates that agency to provide this assistance to RCWP participants.
(3) The administering agency is to monitor the performance of activities supported by RCWP grant funds to assure that time schedules and participant RCWP contract requirements are being met. Performance goals are to be measured against the terms of the grant agreement and program directives. When NRCS determines that onsite technical inspections, certified completion data, and financial status reports do not provide adequate grant evaluation data, the following information may be requested:
(i) A comparison of actual accomplishments with the objectives established for the plan,
(ii) Reasons why established objectives were not met, and
(iii) Objectives established for the next reporting period.
(4) Grant agreements may be amended by mutural agreement of the parties to the agreement. NRCS may unilaterally amend agreements when the sole consideration is a change in the cost and the Administrator, NRCS, based on NRCWCC recommendations, determines that such an adjustment is necessary to carry out the program efficiently and effectively.
(b) Fund transfer agreements. When it is impractical for NRCS to enter into agreements with local soil conservation districts, State soil and water conservation agencies, or State water quality agencies to administer the program in a project area, USDA will retain program administration. In this case, the State Executive Director, ASCS, and the State Conservationist, NRCS, are to enter into an agreement for the transfer of funds to ASCS through county ASC committees for activities included in administrative cost (§ 634.5(c)) and BMP cost (§ 634.5(j)). The following general working arrangements are to apply:
(1) Administering contracts, making cost-share payment, and program reporting are to be provided by ASCS as the administering agency.
(2) NRCS, or its designee, with appropriate Federal or State agency support, will provide technical assistance to participants in preparing RCWP contracts and in carrying out their water-quality plans.
(c) Agreements for services. NRCS may enter into an agreement for services with a State or local agency. The designee must meet the requirements of OMB Circular No. A-102.
(d) Contracts for services. NRCS may enter into contracts for services with individuals or firms for providing technical assistance.
§ 634.16 Suspension of grants.
(a) Suspension orders. Work on a project or on a portion or phase of a project for which a grant has been awarded, may be suspended by order of the State Conservationist, NRCS. Suspension does not affect RCWP contracts existing at the time the suspension order is issued, or the administering agency’s responsibility to make payments under such contracts unless specifically provided for in the suspend order. In no event will the participant’s right to cost-share payment be diminished by action taken under this section.
(b) Use of suspension orders. Suspension may be required for good cause, such as default by the administering agency, failure to comply with the terms and conditions of the grant, realignment of programs, or advancements in the state of the art.
(c) Contents of suspension orders. Prior to issuance, suspension orders will be discussed with the administering agency and may be appropriately modified, in the light of such discussions. Suspension orders are to include:
(1) A clear description of the work to be suspended,
(2) Instructions as to the issuance of further orders by the administering agency for materials or services,
(3) Instructions as to the administering agency entering into new RCWP contracts in the project area,
(4) Instructions as to the administering agency servicing existing RCWP contracts in the project area, and
(5) Other instructions to the administering agency for minimizing Federal costs.
(d) Issuance of suspension order. Suspension orders are issued by the State Conservationist, NRCS, by letter to the administering agency (certified mail, return receipt requested). A suspension order may not exceed forty-five (45) calendar days.
(e) Effect of suspension order. (1) Upon receipt of a suspension order, the administering agency shall promptly comply with its terms and take all reasonable steps to minimize costs allocable to the work covered by the order during the period of work suspension. During the suspension period, NRCS shall either:
(i) Cancel the suspension order, in full or in part, and authorize resumption of work, or
(ii) Take action to terminate the work covered by such order as provided by § 634.17.
(2) If a suspension order is canceled, or the period of the order expires, the administering agency shall promptly resume the suspended work. An equitable adjustment shall be made in the grant period, the project period, or grant amount, or all of these, and the grant agreement may be amended:
(i) The suspension order results in an increase in the time, or cost properly allocable to, the performance of any part of the project; and
(ii) The administering agency asserts a written claim for such adjustment within thirty (30) days after the end of the period of work suspension. If no written claim is made, NRCS may unilaterally make such adjustments.
(iii) Reasonable costs resulting from the suspension order shall be allowed in arriving at any terminations settlement.
(3) Costs incurred by the administering agency after a suspension order is delivered that are not authorized by this section or specifically authorized in writing by the State Conservationist, NRCS, shall not be allowable costs.
§ 634.17 Termination of grant agreement.
(a) Termination agreement or notice. (1) The State Conservationist, NRCS, may, based on evidence of failure to comply with the terms of the grant agreement, issue a notice of intent to terminate the grant agreement. The notice of intent to terminate has the force and effect of extending or modifying the conditions of the suspend order. Any modification of the conditions of the suspend order shall be shown in the notice and discussed with the administering agency. The State Conservationist shall give not less than ten (10) days written notice to the administering agency (certified mail, return receipt requested) of intent to terminate the grant in whole or in part.
(2) After the administering agency has been afforded an opportunity for consultation, the State Conservationist, NRCS, may request authorization from the Administrator, NRCS, to terminate the grant in whole or in part. If the Administrator, NRCS, concurs in the termination action, the proposed termination notice will be forwarded to the Administrator, EPA, for concurrence.
(3) After the Administrators, NRCS and EPA, have been informed of any expressed views of the administering agency and concurred in the proposed termination, the State Conservationist, NRCS, may, in writing (certified mail, return receipt requested), terminate the grant in whole or in part.
(4) Termination of all or part of the grant agreement may be carried out by either execution of a termination agreement by the State Conservationist, NRCS, or issuance of a grant termination notice by the State Conservationist, NRCS. The agreement or notice shall establish the effective date of termination of the grant, the basis for settlement of grant termination costs, and the amount and date of payment of any sums due either party.
(b) Basis for termination. A grant may be terminated by NRCS for good cause subject to negotiation and payment of appropriate termination settlement costs. Cause for termination by NRCS includes:
(1) Failure by the administering agency to make satisfactory progress toward achieving an adequate level of participation; or other evidence satisfactory to the NRCWCC, Administrator, EPA, and the Administrator, NRCS, that the administering agency has failed or is unable to perform in accordance with the provisions of the grant agreement; or
(2) Failure through no fault of the administering agency to achieve an adequate level of participation; or other evidence satisfactory to the NRCWCC, Administrator, EPA, and the Administrator, NRCS, that the planned actions approved in the project application cannot be achieved.
(c) Effect of grant termination. (1)(i) In those cases where cause for grant termination is based on the administering agency’s failure or inability to perform (§ 634.17(b)(1)), upon termination, the administering agency must refund or credit to the United States that portion of the grant funds paid or owed to the administering agency and allocable to the terminated project work. Funds needed to meet unavoidable commitments may be retained. All other funds, including unexpended cost-sharing monies for existing RCWP contracts executed prior to the termination date, shall be refunded to the United States. The administering agency shall not make any new commitments or enter into any new RCWP contracts. The administering agency shall reduce the amount of other outstanding commitments insofar as possible and report to the State Conservationist, NRCS, the uncommitted balance of funds awarded under the grant. The allowability of termination costs will be determined in conformance with applicable Federal cost principles.
(ii) Upon termination of a grant agreement, existing RCWP contracts and their related obligations will immediately, and in no case later than 5 calendar days be transferred to the ASCS county office to assure continuity in payments to participants. The State Conservationist, NRCS, will immediately initiate action under § 634.15 to establish a new administering agency for completion of the project.
(2) In those cases where cause for grant termination is based on failure to achieve the planned actions through no fault of the administering agency, the termination agreement and amended grant agreement are to permit the administering agency to fulfill the obligations of its existing RCWP contracts. The administering agency shall not make any new commitments or enter into any new RCWP contracts without NRCS approval.
§ 634.18 Termination of project.
(a) An RCWP project is terminated by the State Conservationist because an adequate level of participation cannot be achieved. Upon this determination, the State Conservationist shall publish in a newspaper of public record in the project area a notice of intent to terminate all or part of the grant agreement and the project (§ 634.7(c)), and an announcement of the time and place of a public hearing.
(b) No sooner than 15 days from the publication of the notice of intent to terminate all or part of the project and grant agreement, the State Conservationist will conduct a public hearing in the project area.
(c) If, based on the hearing record, the performance record of the administering agency, and the recommendations of the SRCWCC, the State Conservationist determines that the project will be terminated pursuant to § 634.17(c), the State Conservationist will enter into a grant termination agreement or issue a grant termination notice.
(d) The existing RCWP contracts will be transferred to the ASCS county office pursuant to § 634.17(c)(1)(ii).
(e) The State Conservationist will prepare a project close-out report summarizing the actions accomplished.
§ 634.19 Project completion and closeout.
(a) The maximum total life of a project shall be fifteen (15) years or less.
(b) The allowable contracting period may be increased if an adequate level of participation has been achieved and the designated management agency assures a significant increase in participation can be reached in a reasonable time.
(c) The grant or fund transfer agreement with an administering agency shall expire when the administering agency has fulfilled all of its obligations in the long-term RCWP contracts.
(d) When a project is completed, the administering agency is to provide the State Conservationist, NRCS, a closeout report which summarizes the actions accomplished.
Subpart C – Participant RCWP Contracts
§ 634.20 Eligible land.
RCWP is only applicable to privately owned land. Land owned by corporations whose ownership is public (i.e., their stock is publicly traded over the market) is eligible for program assistance only if the corporation can document that the installation of BMP’s places an inappropriate financial burden on the corporation.
§ 634.21 Eligible participants.
(a) Any landowner or operator whose land or activities in a project area is contributing to the area’s agricultural nonpoint source water quality problems and who has an approved water quality plan is eligible to enter into an RCWP contract.
(b) This program will be conducted in compliance with all nondiscrimination requirements as contained in the Civil Rights Act of 1964 and amendments thereto and the Regulations of the Secretary of Agriculture (7 CFR 15.1 through 15.12).
§ 634.22 Application for assistance.
(a) Landowners or operators must apply for RCWP assistance through the office of the administering agency or its designee(s) by completing the prescribed application form.
(b) The priority for assistance among landowners and operators in developing water quality plans is to be determined jointly, through an agreed-to process, by the county ASC committee and the soil conservation district, with technical assistance from NRCS.
(c) Applications that are ineligible or technically infeasible are to be returned to the applicant with a letter stating the reasons for disapproval. Applications that are of a low priority will be retained and the applicant will be sent a notice that the application is being held for a period to be determined locally for future consideration.
§ 634.23 Water quality plan.
(a) The participant’s water quality plan, developed with technical assistance by the NRCS or its designee, is to include appropriate BMP’s identified in the approved agricultural portion of the 208 water quality management plan. Such BMP’s must reduce the amount of pollutants that enter a stream or lake by:
(1) Methods, such as reducing the application rates or changing the application methods of potential pollutants, and
(2) Methods, such as practices or combinations of practices which prevent potential pollutants from leaving source areas or reduce the amount of potential pollutants that reach a stream or lake after leaving a source area.
(b) Participant’s water quality plans shall as a minimum include BMP’s for all critical areas or sources. The plans will include BMP’s which are required but not cost-shared. Non-cost-shared BMP’s, essential for the performance and maintenance of cost-shared BMP’s shall be required as a condition of the RCWP contract.
(c) The participant is responsible for compliance with all other applicable Federal, State, and local laws that deal with the participant’s nonpoint source water quality problems, such as the treatment, storage, and disposal of hazardous waste. BMP’s required for compliance may be cost shared.
(d) It is recognized that the participants’ water-quality plans upon which the RCWP contracts are to be based may include conservation measures other than those related to water quality improvement. These measures are not eligible for cost sharing under this program. The installation of such conservation measures will not be required as a condition of the RCWP contract and will not be shown in the time schedules for implementing BMP’s.
(e) Time schedules for implementing BMP’s are to be provided in the participant’s water quality plan. The time schedule is to establish the length of the contract within the 5 to 10 year period established by law.
(f) The Natural Resources Conservation Service will certify as to the technical adequacy of the water-quality plan.
(g) The soil conservation districts are to review and approve all water-quality plans and modifications.
§ 634.24 Cost sharing.
(a) The portion of BMP cost (including labor) to be cost shared shall be that part which the Secretary determines is necessary and appropriate. The value of land upon which BMP’s are applied, or the participant’s water rights, cannot be considered a part of the participant’s share of the cost.
(b) The administering agency, in consultation with the county ASC committee(s), soil conservation district(s), and designated management agency will annually set maximum individual BMP cost-share levels for the project area. However, the Federal share of the cost of the contract cannot exceed 50 percent unless a variance has been granted.
(c) Recommended variances exceeding the 50 percent level must be in the public interest and based on the following criteria:
(1) The main benefits to be derived from measures are related to improving offsite water quality, and
(2) The matching share requirements would place a burden on the landowner or operator which would probably prevent him or her from participating in the program.
(d) BMP’s to be cost shared must have a positive effect on water quality by reducing the amount of agricultural nonpoint source pollutants that enter a stream or lake.
(e) Cost sharing is not to be made available for:
(1) Measures installed primarily for bringing additional land into crop production, including but not limited to land clearing and brush removal;
(2) Measures installed primarily for increasing production on existing cropland, including but not limited to bedding, field ditches, open drains, and tile drains;
(3) Measures having flood protection as the primary purpose, including but not limited to open channels, clearing and snagging, and obstruction removal;
(4) Structural measures authorized for installation under Pub. L. 83-566.
(f) The Federal cost-share level is not to be reduced by the contribution of a State or subdivision thereof. Total payments from Federal, State, and local sources for a BMP may not exceed the total cost of that BMP.
§ 634.25 Contracting.
(a) To participate in RCWP, a landowner or operator must enter into a contract in which he or she agrees to apply his or her water-quality plan. Any person who controls, or shares control, of the farm, ranch, or other land for the proposed contract period (5 to 10 years) must sign the contract.
(b) Cost-sharing payments cannot be provided for any measure that is initiated before the contract is approved by the administering agency.
(c) The participant must furnish satisfactory evidence of his or her control of the farm, ranch, or other land. The administering agency is to determine the acceptability of the evidence and maintain current ownership evidence in the contract file.
(d) RCWP contracts shall include the basic contract document, special provisions as needed, the participant’s water-quality plan, schedule of operations, and any other data necessary.
(e) NRCS or its designee shall approve the technical adequacy of the RCWP contract and obtain the required signature of the participants. The NRCS or its designee will provide the contract to the administering agency for certification of fund availability and for execution.
(f) Participants shall install best management practices according to the specifications that are applicable at the time measures are installed.
(g) NRCS will provide technical assistance to participants for installing BMPs. The State Conservationist, NRCS, or its designee may enter into contracts with qualified soil conservation districts or others to provide technical assistance.
(h) The RCWP contract is to require BMPs to be operated and maintained by the participant at no cost to that administering agency.
(i) The contract period is to be not less than 5 and not more than 10 years. A contract is to extend for at least 1 year after the application of the last cost-shared BMPs. All contract items are to be accomplished prior to contract expiration.
(j) A land owner or operator may enter into a contract jointly (pooling ageement) with other land owners or operators to solve mutual water quality problems. Each participant must enter into an RCWP contract to treat water quality problems not covered by the joint arrangement.
(k) Participants may use all available sources of assistance to accomplish their water-quality objectives. They are responsible for:
(1) Accomplishing the water-quality plan;
(2) Keeping the administering agency informed of their current mailing address;
(3) Obtaining, having in hand, and maintaining any required permits and landrights necessary to perform the planned work;
(4) Applying or arranging for the application of BMPs, as scheduled in the plan, according to approved standards and specifications;
(5) The operation and maintenance of BMPs installed during the contract period; and
(6) Obtaining the authorities, rights, easements, or other approvals necessary to maintain BMPs in keeping with applicable laws and regulations.
(l) Unless otherwise approved by the Administrator, NRCS, and Administrator, EPA, the administering agency shall not enter into any new RCWP contracts after five (5) years of elapsed time from the date when RCWP funds are first made available to begin the project.
(m) Contracts may be terminated due to hardship by mutual agreement if the administering agency and the State Conservationist, NRCS, determine that such action would be in the public interest.
§ 634.26 Contract modifications.
(a) The administering agency may modify contracts previously entered into if it is determined to be desirable to carry out the purposes of the program, facilitate the practical administration thereof, or to accomplish equitable treatment with respect to other conservation, land-use, or water-quality programs.
(b) Requirements of active contracts may be waived or modified by the administering agency only if such waiver or modification is specifically provided for in these regulations. NRCS concurrence in modifications is necessary when modifications involve a technical aspect of the participant’s water-quality plan. A contract may be modified only if it is determined that such modifications are desirable to carry out purposes of the program or to facilitate the program’s practical administration.
(c) Contracts may be modified to add, delete, substitute, or reinstall best management practices when:
(1) The installed measure failed to achieve the desired results through no fault of the participant,
(2) The installed measure deteriorated because of conditions beyond the control of the participant, or
(3) Another BMP is substituted that will achieve the desired results.
(d) Contract modifications are not required when items of work are accomplished prior to scheduled completion or within 1 year following the year of scheduled completion.
(e) If, during the contract period, all or part of the right and interest in the land is transferred by sale or other transfer action, the contract is terminated on the land unit that was transferred and the participant having control over such land:
(1) Forfeits all right to any future cost-share payments on the transferred land unit, and
(2) Must refund with interest all cost-share payments that have been made on the transferred land unit unless the new land owner or operator becomes a party to the contract, except that where it is determined by the administering agency, with the approval of the State conservationist, NRCS, that the established BMPs will provide water quality benefits for the design life of the BMP, the payment may be retained.
(f) If the new land owner or operator becomes a party to the contract:
(1) Payment which has been earned, but not made to the participant who applied the BMPs and had control prior to the transfer, can be made,
(2) Such land owner or operator is to assume all obligations of the previous participant on the transferred land unit,
(3) The contract with the new participant is to remain in effect with the original terms and conditions, and
(4) The contract is to be modified in writing to show the changes caused by the transfer. If the modification is not acceptable to the administering agency, the provisions of paragraphs (e) (1) and (2) of this section apply.
(g) The transfer of all or part of a land unit by a participant does not affect the rights and obligations of other participants who have signed the contract.
(a) General. Participants are to obtain or contract for materials or services as needed to install BMPs. Federal Cost-share payments are to be made by the administering agency upon certification by the District Conservationist, NRCS, or its designee, that the BMPs, or an identifiable unit thereof, have been properly carried out and meet the appropriate standards and specifications.
(b) Payment maximum. The maximum total Federal cost-share payment to a participant shall be limited to $50,000. Exceptions to this limit may be made by the administering agency with concurrence of the Administrator, NRCS, upon recommedation of the NRCWCC, where it determines that the main benefits to be derived are essential for meeting the water quality objectives in the project area.
(c) Basis for cost-share payment. (1) Cost-share payments are to be made by the administering agency at the cost-share percentage and by one of the following methods designated by the administering agency and set out in the contract:
(i) Average cost, or
(ii) Actual cost not to exceed average cost.
(2) If the average cost at the time of starting the installation of a BMP or identifiable unit is less than the costs specified in the contract, payment is to be at the lower rate. If the costs at the start of installation are higher, payment may be made at the higher rate. A modification will be necessary if the higher cost results in a significant increase in the total cost-share obligation. Cost-share payment is not to be made until the modification reflecting the increase is approved.
(d) Average cost development. Average costs are to be developed by the administering agency for each project using cost data from the local area. These costs should be reviewed by the SRCWCC for consistency with average costs in other USDA programs. The average cost list is to be updated annually by the administering agency.
(e) Application for payment. Cost-share payments can be made by the administering agency after a participant has carried out a BMP or an identifiable unit of a BMP. Application for payment must be submitted to the administering agency, be certified by the NRCS or its designee, and be supported by such cost receipts as are required by the administering agency. It is the participant’s responsibility to apply for payments.
(f) Authorizations for payments to suppliers. (1) The contract may authorize that part or all of the Federal cost share for a BMP or an identifiable unit be made directly to suppliers of materials or services. The materials or services must be delivered or performed before payment is made.
(2) Federal cost shares will not be in excess of the cost share attributable to the material or service used or not in excess of the cost share for all identifiable units as may be requested by the participant.
(g) Material inspection and analysis. When authorizations for payments to suppliers are specified, the administering agency, its representatives, or the Government reserve the right to inspect, sample, and analyze materials or services prior to their use.
(h) Assignments, set-offs, and claims. (1) A State or local administering agency may allow the assignment of payments to the extent provided by State law. When ASCS is designated as the administering agency, assignments by any participant who may be entitled to cost-share payment under the program are prohibited unless they are made in accordance with the provisions of section 203, Title 31, U.S.C., as amended, and section 15, Title 41, U.S.C., as amended.
(2) If any participant to whom compensation is payable under RCWP is indebted to the United States and such indebtedness is listed on the county register of indebtedness maintained by the County ASC committee, the compensation due the participant must be used (set-off) to reduce that idebtedness. Indebtedness to USDA is to be given first consideration. Deductions for setoffs involving a nonresident alien shall be made as provided by 26 U.S.C. 871. Setoffs made pursuant to this section are not to deprive the participant of any right to contest the justness of the indebtedness involved, either by administrative appeal or by legal action.
(3) Any cost-share payment due any participant shall be allowed without deduction of claims for advances except as provided for above and without regard to any claim or lien against any crop, or proceeds thereof, in favor of the participant or any other creditor.
(i) Access to land unit and records. Any authorized administering agency, or NRCS employees or agents, shall have the right of access at reasonable times to land under application or contract, and the right to examine any program records to ascertain the accuracy of any representations made in the application or contract. This is limited to the right to furnish technical assistance and to inspect work performed under the contract.
(j) Suspension of payments. No cost-share payments will be made pending a decision on whether or not a contract violation has occurred.
(k) Ineligible payments. The filing of requests for payment for BMP’s not carried out, or for BMP’s carried out in such a manner that they do not meet contract specifications, constitutes a violation of the contract.
(a) The participant may, prior to execution of the contract, request that the administering agency review or reconsider criteria being used in developing his or her contract. Such review or reconsideration may include the eligibility of BMP’s which had not been approved for application in the project area, cost-sharing levels for BMP’s, priorities for developing water quality plans, and standards and specifications.
(1) If verbal agreement is not reached, the participant may make a written request within 30 days after receiving notice of the decision of his or her verbal request.
(2) The administering agency shall have 30 days in which to make a decision and notify the participant in writing.
(3) The decision of the administering agency shall be final.
(b) If, after the contract has been executed, the participant and the administering agency are unable to reach written agreement relative on matters which are not related to contract violations, the participant may request and receive a review by the appeals board. The administering agency will:
(1) Notify the participant, in writing, of the date the appeals board will consider the appeal.
(2) Within 30 days after receiving the administering agency’s notice, the participant may file a request to appear and present oral and other evidence. If the participant does not request an appearance, the administering agency appeals board will decide the dispute on the evidence available to them, including statements or briefs of the authorized representatives of the soil conservation district and NRCS. The administering agency shall notify the participants of the appeals board’s decision in writing. There shall be no further administrative appeal of this decision.
(c) Filing of documents. A document is considered filed when it is received in the office of the person or agency concerned.
§ 634.29 Violations.
(a) Actions causing violations. The following actions constitute violation of a contract by a participant:
(1) Knowingly or negligently damaging or causing BMP’s to become impaired.
(2) Adopting a land use or practice during the contract period which tends to defeat the purposes of the program.
(3) Failing to comply with the terms of the contract.
(4) Filing a false claim.
(5) Misusing authorizations for payment.
(b) Contract termination as a result of violations. (1) By signing a contract, the participant agrees to forfeit all rights to further cost-sharing payments under a contract and to refund all cost-share payments received, with interest, if the administering agency, with the concurrence of the State Conservationist, NRCS, determines that:
(i) There was a violation of the contract during the time the participant had control of the land; and
(ii) The violation was of such a nature as to warrant termination of the contract.
(2) The participant shall be obligated to refund all cost-share payments and all cost shares paid under authorizations, with interest, at the rates established by the Secretary of the Treasury pursuant to Pub. L. 92-41, 85 Stat. 97.
(c) Payment adjustments and refunds resulting from violations. (1) By signing a contract, the participant agrees to refund cost-share payments received under the contract or to accept payment adjustments if the administering agency determines and the State Conservationist, NRCS, concurs that:
(i) There was a violation of the contract during the time the participant had control of the land; and
(ii) The nature of the violation does not warrant termination of the contract.
(2) Payment adjustments may include decreasing the rate of cost share, or deleting from the contract a cost-share commitment, or withholding cost-share payments earned but not paid. The participant who signs the contract may be obligated to refund cost-share payments.
§ 634.30 Appeals in USDA administered projects.
The participant in a USDA-administered RCWP project may appeal decisions of the administering agency in accordance with part 614 of this title.
§ 634.31 Appeals of contract violations.
(a) Scope. This section prescribes the regulations dealing with contract violations. The Administrator, NRCS, reserves the right to revise or supplement any of the provisions of this section at any time if the action does not adversely affect the participant, or if the participant has been officially notified before this action is taken.
(b) Determination by administering agency. Upon notification that a contract violation may have occurred, the administering agency:
(1) Determines that a violation did not occur or that the violation was of such a nature that no further action is to be taken; or
(2) Determines that a violation did occur and the participant agrees to accept a written penalty of forfeiture, refund, payment adjustment, or termination. If no agreement is reached, further action is to be taken.
(c) Notice of possible violation. (1) When the administering agency is notified that a contract violation may have occurred and the matter is not resolved under § 634.31(b)(1) it shall notify, in writing, each participant who signed the contract of the alleged violation. This notice setting forth the alleged violation may be personally delivered or sent by certified or registered mail. A participant is considered to have received the notice at the time of personal receipt acknowledged in writing, at the time of delivery of a certified or registered letter, or at the time of the return of a refused certified or registered letter.
(2) The notice shall give the participant an opportunity to appear at a hearing before an appeals board. The participant’s request for a hearing shall be submitted in writing, and must be received by the appeals board within 30 days after receipt of the notice. The participant shall be notified in writing by the appeals board of the time, date, and place for the hearing. The participant shall have no right to a hearing if he does not file a written request for a hearing, or if he or his representative does not appear at the appointed time, unless the appeals board, at its discretion, permits an appearance. A request for a hearing filed by a participant shall be considered to be a request by all participants who signed the contract.
(d) Hearing. The appeals board shall conduct an open hearing to obtain the facts about the alleged violation. The appeals board shall limit the hearing to relevant facts and evidence, and shall not be bound by the strict rules of evidence. Witnesses may be sworn in at the discretion of the appeals board.
(1) The participant or his or her representative shall be given full opportunity to present oral or documentary evidence about the alleged violation. Likewise, the administering agency may submit statements and evidence. Individuals not otherwise represented at the hearing may, at the discretion of the appeals board, be permitted to give information or evidence. The appeals board, at its discretion, may permit witnesses to be cross-examined.
(2) The appeals board shall make a record of the hearing. A summary of the testimony may be made if both the participant and the appeals board agree. A transcript of the hearing shall be made if requested by either the appeals board or the participant within 10 days prior to the hearing. If a transcript is requested by the participant, the participant may be assessed the cost of a copy of the transcript.
(3) The appeals board shall, after a reasonable period of time, close the hearing if the participant or his or her representative is not present at the scheduled time. The appeals board may, at its discretion, accept information and evidence submitted by others present for the hearing.
(4) The appeals board shall furnish the administering agency and the State Conservationist, NRCS, with a written report setting forth their findings, conclusions, and recommendations. The report shall include the summary of testimony or transcript made of the hearing and any other information which would aid the administering agency in reaching a decision.
(e) Decision by the administering agency. The administering agency shall make a decision within 30 days on the basis of the appeals board report, recommendations of soil conservation district board, if any, and any other information available, including if applicable, the amount of the forfeiture, refund, or payment adjustment. The decision shall state whether the violation is of such a nature as to warrant termination of the contract. The administering agency shall notify, in writing, each participant who signed the contract of its decision. The administering agency may authorize or require the reopening of any hearing before the appeals board for any reason at any time before their decision. The administering agency’s decision shall be final.
(1) If the decision provides for termination of the contract, it shall state that the contract is terminated and that all rights to further cost-share payments under the contract are forfeited and that all cost-share payments received under the contract shall be refunded with interest. The decision is to state the amount of refund and method of payment.
(2) If the decision does not provide for termination of the contract, the participant may be required to make a refund of cost-share payments or to accept payment adjustments. The decision shall state the amount and justification for refunds of cost-share payments or payment adjustments.
Subpart D – Financial Management
§ 634.40 Financial management.
(a)(1) Finance and accounting will be in conformance with Office of Management & Budget Circular A-102, (Rev.); U.S. Department of Health, Education & Welfare Brochure OASC-10, Federal Management Circular FMC 74-4, “Cost Principles Applicable to Grants and Contracts with State and Local Government”; Department of the Treasury, Department Circular No. 1075 (4th Rev.), “Withdrawal of Cash from the Treasury for Advances under Federal Grant and other Programs”; Office of Management & Budget Circular No. A-34, “Instruction on Budget Execution”; U.S. Treasury Requirements Manual for Guidance of Departments and Agencies; and General Accounting Office Policy & Procedures Manual for Guidance of Federal Agencies.
(2) Administering agency RCWP grants will be funded under Letter-of-Credit serviced by the U.S. Treasury Regional Disbursing Office (RCO), subject to the terms and conditions of the grant agreement or by NRCS approved advance/reimbursement financing agreements.
(3) The State of local administering agency shall maintain a financial management system which provides accurate and complete disclosure of the financial status of the RCWP grant in accordance with prescribed reporting requirements.
(4) The State or local administering agency shall upon request make its financial management system records available to NRCS, USDA Office of Inspector General, and the General Accounting Office.
(5) Participation in comprehensive USDA/EPA joint water quality monitoring, evaluating, and analysis will be funded according to the plan approved in § 634.50(a)(3).
(b)(1) The carrying out of RCWP will require both financial and performance reporting to the Natural Resources Conservation Service by participating USDA and State or local agencies.
(2) USDA participating agencies shall furnish NRCS with reports prescribed by the U.S. Treasury Department; Office of Management and Budget; Administrative Regulations of the U.S. Department of Agriculture; and other reports required by law, regulation, or agreement.
(3) State or local administering agencies shall furnish financial status reports to NRCS on a quarterly basis as required by the grant agreement. The administering agency is also to provide an audit report upon request. The audit report is to be prepared in sufficient detail to allow NRCS to determine that funds have been used in compliance with applicable laws, regulations, and the grant agreement.
Subpart E – Monitoring and Evaluation
§ 634.50 Program and project monitoring and evaluation.
(a) Comprehensive USDA/EPA joint water quality monitoring, evaluation, and analysis. (1) Representative RCWP project areas will be selected to evaluate the improvement in water quality in the project area and to make projections on a nationwide basis. Water-quality monitoring, evaluation, and analysis will be conducted to evaluate the overall cost and effectiveness of projects and BMPs to provide information on the impact of the program on improved water quality and for general RCWP program management.
(2) Monitoring, evaluation, and analysis is a joint USDA/EPA responsibility. Subject to appropriation of funds, the Administrator, NRCS, and EPA are jointly to select the project areas to be monitored and evaluated based on a list of project areas recommended by the NRCWCC.
(3) The Administrator, NRCS, and Administrator, EPA, are jointly to determine the criteria to be used for comprehensive water-quality monitoring, evaluation, and analysis in the selected project areas. A monitoring and evaluation plan is to be developed and agreed to by NRCS and EPA prior to initiating a project selected for monitoring and evaluation. The State water-quality agency and other Federal, State, and local agencies will be involved in the development of the plan for water-quality evaluation. The involvement of concerned agencies in implementing the plan will be determined at the time the plan is prepared.
(4) The project areas selected for detailed analysis are to be representative of agricultural and silvicultural nonpoint source pollution problems, categories of agriculture and silvicutural nonpoint source pollutants, agricultural enterprises, and BMPs used in the RCWP.
(5) Preference in the selection of project areas for comprehensive evaluation is to be given to those project areas for which long-term baseline information exists on land use, hydrologic data, and water quality.
(6) Monitoring and evaluation of selected project areas is to begin sufficiently in advance of the installation of BMPs to document, in a statistically satisfactory manner, existing land-use practices and baseline water-quality problems.
(7) The water quality monitoring and evaluation plan will provide sufficient basic information to adequately describe the land use, hydrologic water quality relationship. As a minimum, the plan will contain the following components:
(i) Chemical and physical water quality monitoring,
(ii) Biological monitoring,
(iii) Appropriate hydrologic data,
(iv) Soils properties and characteristics, topographic information,
(v) Land use and farm inventory.
(b) Program and project evaluation. (1) There will be a continuing evaluation of the Rural Clean Water Program to measure its effectiveness and for each project for which cost-sharing funds are provided.
(2) Program and project evaluations will be conducted under the direction of the Assistant Secretary for Conservation, Research and Education, USDA, the Director of Economics, Policy Analysis, and Budget, USDA; and the Assistant Administrator for Water and Waste Management, EPA; or their representatives working through NRCWCC.
(3) Evaluative reports for the program and each project area will be submitted annually to the Secretary of Agriculture and the Administrator, EPA.
(c) Funding. (1) Research oriented activities will be from sources other than RCWP.
(2) Funding for program and project monitoring and evaluation will be provided through RCWP and other authorizations.
PART 635 – EQUITABLE RELIEF FROM INELIGIBILITY
§ 635.1 Definitions and abbreviations.
The following terms apply to this part:
Appeal rights means the right of the participant to appeal a decision to the National Appeals Division (NAD) pursuant to part 614 of this chapter.
Chief means the Chief of the Natural Resources Conservation Service or a person with delegated authority to act for the Chief.
Covered program means a conservation program administered by NRCS.
Equitable relief means an action described in § 635.5 of this part.
Natural Resources Conservation Service (NRCS) means an agency of the U.S. Department of Agriculture which has responsibility for administering covered programs, including those using the funds, facilities, and authorities of the Commodity Credit Corporation (CCC).
OGC means the Office of the General Counsel of the U.S. Department of Agriculture.
Participant means a participant in a covered program.
Secretary means the Secretary of U.S. Department of Agriculture.
State means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the United States.
State Conservationist means the NRCS employee authorized to direct and supervise NRCS activities in a State or the State Conservationist’s designee.
§ 635.2 Applicability.
This part applies to all covered programs administered by the Natural Resources Conservation Service, except for the Highly Erodible Land and Wetland Conservation provisions of Title XII, subtitles B and C of the Food Security Act of 1985, as amended, (16 U.S.C. 3811 et seq.). Administration of this part shall be under the supervision of the Chief, except that such authority shall not limit the exercise of authority by State Conservationists of the Natural Resources Conservation Service provided in § 635.6 of this part.
§ 635.3 Reliance on incorrect actions or information.
The Chief may grant equitable relief to any participant that NRCS determines is not in compliance with the requirements, terms and conditions of a covered program, and therefore ineligible for a payment, or other benefit, if the participant –
(a) Acting in good faith, relied on action and advice from an NRCS employee or representative of USDA to their detriment;
(b) Did not know or have sufficient reason to know that the action or advice upon which they relied would be detrimental; and
(c) Did not act in reliance on their own misunderstanding or misinterpretation of the program provisions, notices, or information.
§ 635.4 Failure to fully comply.
The Chief may grant equitable relief to any participant that NRCS determines is not in full compliance with the requirements, terms and conditions of a covered program, and therefore ineligible for a payment, or other benefit, if the participant –
(a) Made a good faith effort to comply fully with the requirements; and
(b) Rendered substantial performance.
§ 635.5 Forms of relief.
(a) The Chief may authorize a participant in a covered program to:
(1) Retain payments or other benefits received under the covered program;
(2) Continue to receive payments and other benefits under the covered program;
(3) Continue to participate, in whole or in part, under any contract executed under the covered program;
(4) Re-enroll all or part of the land covered by the program; and
(5) Receive such other equitable relief as determined to be appropriate.
(b) As a condition of receiving relief under this part, the participant may be required to remedy their failure to meet the program requirement or mitigate its effects.
§ 635.6 Equitable relief by State Conservationists.
(a) State Conservationists’ Authority. State Conservationists have the authority to grant requests for equitable relief under this section when –
(1) The program matter with respect to which the relief is sought is a program matter in a covered program operated within the authorized jurisdiction of the State Conservationist;
(2) The total amount of relief (including payments and other benefits) that will be provided to the participant under this section during the fiscal year is less than $20,000;
(3) The total amount of such relief that has been previously provided to the participant using this section in the fiscal year, as calculated in paragraph (a)(2) of this section, is not more than $5,000;
(4) The total amount of payments and benefits of any kind for which relief is provided to similarly situated participants by a State Conservationist in a fiscal year, is not more than $1,000,000.
(b) Additional limits on authority. The authority provided under this section does not extend to the administration of:
(1) Payment limitations under part 1400 of this title;
(2) Payment limitations under a conservation program administered by the Secretary; or
(3) The highly erodible land and wetland conservation requirements under subtitles B or C of Title XII of the Food Security Act of 1985 (16 U.S.C. 3811 et seq.).
(c) Concurrence by the Office of the General Counsel. Relief shall only be made under this part after consultation with, and concurrence by, the Office of General Counsel.
(d) Secretary’s reversal authority. A decision made under this part by the State Conservationist may be reversed only by the Secretary, who may not delegate that authority.
(e) Relation to other authorities. The authority provided under this section is in addition to any other applicable authority that may allow relief.
§ 635.7 Procedures for granting equitable relief.
(a) The Chief or State Conservationist may initiate a request for equitable relief for a participant that meets the requirement of this part.
(b) Participants may request equitable relief from the Chief or the State Conservationist as provided in §§ 635.3 and 635.4 of this part.
(c) Only a participant directly affected by the non-compliance with the covered program requirements is eligible for equitable relief under this part.
(d) Requests by a participant for equitable relief must be made in writing, no later than 30 calendar days from the date of receipt of the notification of non-compliance with the requirements of the covered conservation program.
(e) Requests for equitable relief must include any information necessary to determine eligibility under this part and such other information as required by NRCS to determine whether granting equitable relief is appropriate. Information needed by the agency to assess equitable relief requests will be provided and updated by applicable policy and procedure.
(f) If equitable relief is denied by the Chief or the State Conservationist, the participant will be provided with written notice of appeal rights to the National Appeals Division, pursuant to 7 CFR part 614.
PART 636 – WILDLIFE HABITAT INCENTIVE PROGRAM
§ 636.1 Applicability.
(a) The purpose of the Wildlife Habitat Incentive Program (WHIP) is to help participants develop fish and wildlife habitat on private agricultural land, nonindustrial private forest land (NIPF), and Indian land.
(b) The regulations in this part set forth the requirements for WHIP.
(c) The Chief, Natural Resources Conservation Service (NRCS), may implement WHIP in any of the 50 States, District of Columbia, Puerto Rico, Guam, the Virgin Islands of the United States, American Samoa, and the Commonwealth of the Northern Mariana Islands.
§ 636.2 Administration.
(a) The regulations in this part will be administered under the general supervision and direction of the Chief. The funds, facilities, and authorities of the Commodity Credit Corporation (CCC) are available to NRCS to carry out WHIP. Accordingly, where NRCS is mentioned in this part, it also refers to CCC’s funds, facilities, and authorities, where applicable.
(b) The State Conservationist may accept recommendations from the State Technical Committee and Tribal Conservation Advisory Council (for tribal land) in the implementation of the program and in establishing program direction for WHIP in the applicable State or tribal land. The State Conservationist has the authority to accept or reject the State Technical Committee and the Tribal Conservation Advisory Council’s (for tribal land) recommendation; however, the State Conservationist will give strong consideration to the State Technical Committee and the Tribal Conservation Advisory Council’s recommendation.
(c) NRCS may enter into agreements with Federal and State agencies, Indian tribes, conservation districts, local units of government, public and private organizations, and individuals to assist with program implementation, including the provision of technical assistance. NRCS may make payments pursuant to said agreements for program implementation and for other goals consistent with the program provided for in this part.
(d) NRCS will provide the public with notice of opportunities to apply for participation in the program.
(e) No delegation in this part to lower organizational levels will preclude the Chief, or designee, from determining any issues arising under this part or from reversing or modifying any determination made under this part.
§ 636.3 Definitions.
The following definitions will apply to this part, and all documents issued in accordance with this part, unless specified otherwise:
Agricultural lands means cropland, grassland, rangeland, pastureland, and other land determined by NRCS to be suitable for fish and wildlife habitat development on which agricultural and forest-related products or livestock are or have the potential to be produced. Agricultural lands may include cropped woodland, wetlands, waterways, streams, incidental areas included in the agricultural operation, and other types of land used for or have the potential to be used for production.
Applicant means a person, legal entity, joint operation, or Indian tribe that has an interest in agricultural land, NIPF, Indian land, or other lands identified in 636.4(c)4, who has requested in writing to participate in WHIP.
At-risk species means any plant or animal species listed as threatened or endangered; proposed or candidate for listing under the Endangered Species Act (ESA); a species listed as threatened or endangered under State law or tribal law on tribal land; State or tribal land species of conservation concern; or other plant or animal species or community, as determined by the State Conservationist, with advice from the State Technical Committee and Tribal Conservation Advisory Council (for tribal land), that has undergone, or likely to undergo, population decline and may become imperiled without direct intervention.
Beginning farmer or rancher means an individual or entity who:
(1) Has not operated a farm or ranch, or who has operated a farm or ranch for not more than 10 consecutive years. This requirement applies to all members of an entity, who will materially and substantially participate in the operation of the farm or ranch.
(2) In the case of a cost-share agreement with an individual, individually, or with the immediate family, material and substantial participation requires that the individual provide substantial day-to-day labor and management of the farm or ranch consistent with the practices in the county or State where the farm is located.
(3) In the case of a cost-share agreement with an entity or joint operation, all members must materially and substantially participate in the operation of the farm or ranch. Material and substantial participation requires that each of the members provide some amount of the management, or labor and management necessary for day-to-day activities, such that if each of the members did not provide these inputs, operation of the farm or ranch would be seriously impaired.
Chief means the Chief of NRCS or designee.
Conservation activities means conservation systems, practices, or management measures needed to address a resource concern or improve environmental quality through the treatment of natural resources, and includes structural, vegetative, and management activities, as determined by NRCS.
Conservation district means any district or unit of State, tribal, or local government formed under State, tribal, or territorial law for the express purpose of developing and carrying out a local soil and water conservation program. Such district or unit of government may be referred to as a conservation district, soil conservation district, soil and water conservation district, resource conservation district, natural resource district, land conservation committee, or similar name.
Conservation practice means one or more conservation improvements and activities, including structural practices, land management practices, vegetative practices, forest management, and other improvements that benefit the eligible land and achieve program purposes. Approved conservation practices are listed in the NRCS Field Office Technical Guide (FOTG).
Cost-share agreement means a financial assistance document that specifies the rights and obligations of any participant accepted into the program. A WHIP cost-share agreement is a binding agreement for the transfer of assistance from the Department of Agriculture (USDA) to the participant to share in the costs of applying conservation activities.
Cost-share payment means the payments under the WHIP cost-share agreement to develop fish and wildlife habitat or accomplish other goals consistent with the program provided for in this part.
Designated conservationist means an NRCS employee whom the State Conservationist has designated as responsible for WHIP administration in a specific area.
Field Office Technical Guide means the official local NRCS source of resource information and interpretations of guidelines, criteria, and requirements for planning and applying conservation practices and conservation management systems. It contains detailed information on the conservation of soil, water, air, plant, and animal resources applicable to the local area for which it is prepared.
Habitat development means the conservation activities implemented to establish, improve, protect, enhance, or restore the conditions of the land for the specific purpose of improving conditions for fish and wildlife.
Historically underserved producer means an eligible person, joint operation, legal entity, or Indian tribe who is a beginning farmer or rancher, socially disadvantaged farmer or rancher, limited resource farmer or rancher, or NIPF landowner who meets the beginning, socially disadvantaged, or limited resource qualifications set forth in § 636.3.
Indian land means:
(1) Land held in trust by the United States for individual Indians or Indian tribes, or
(2) Land, the title to which is held by individual Indians or Indian tribes subject to Federal restrictions against alienation or encumbrance, or
(3) Land which is subject to rights of use, occupancy, and benefit of certain Indian tribes, or
(4) Land held in fee title by an Indian, Indian family, or Indian tribe.
Indian tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) that is eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
Joint operation means, as defined in 7 CFR part 1400, a general partnership, joint venture, or other similar business organization in which the members are jointly and severally liable for the obligations of the organization.
Legal entity means, as defined in 7 CFR part 1400, an entity created under Federal or State law that:
(1) Owns land or an agricultural commodity, product, or livestock; or
(2) Produces an agricultural commodity, product, or livestock.
Lifespan means the period of time during which a conservation practice is to be operated and maintained for the intended purpose.
Limited resource farmer or rancher means:
(1) A person with direct or indirect gross farm sales of not more than $142,000 in each of the previous 2 years (this is the amount for 2010, and adjusted for inflation using Prices Paid by Farmer Index as compiled by National Agricultural Statistical Service); and
(2) Has a total household income at or below the national poverty level for a family of four, or less than 50 percent of county median household income in each of the previous 2 years (to be determined annually using the Department of Commerce Data).
Liquidated damages means a sum of money stipulated in the WHIP cost-share agreement that the participant agrees to pay NRCS if the participant fails to adequately complete the terms of the cost-share agreement. The sum represents an estimate of the technical assistance expenses incurred to service the agreement, and reflects the difficulties of proof of loss and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy.
Livestock means all animals produced on farms and ranches, as determined by the Chief.
Natural Resources Conservation Service is an agency of USDA, which has the responsibility for administering WHIP using the funds, facilities, and authorities of the CCC.
Nonindustrial private forest land means rural land, as determined by the Secretary, that has existing tree cover or is suitable for growing trees and is owned by any nonindustrial private individual, group, association, corporation, Indian tribe, or other private legal entity that has definitive decisionmaking authority over the land.
Operation and maintenance means work performed by the participant to keep the applied conservation activities functioning for the intended purpose during the conservation practice lifespan. Operation includes the administration, management, and performance of non-maintenance actions needed to keep the completed activity functioning as intended. Maintenance includes work to prevent deterioration of the practice, repairing damage, or replacement of the practice to its original condition if one or more components fail.
Operation and maintenance agreement means the document that, in conjunction with the WHIP plan of operations, specifies the operation and maintenance (O&M) responsibilities of the participants for conservation activities implemented with WHIP assistance.
Participant means a person, legal entity, joint operation, or Indian tribe that is receiving payment or is responsible for implementing the terms and conditions of a WHIP cost-share agreement.
Person means, as defined in 7 CFR part 1400, an individual, natural person and does not include a legal entity.
Producer means, as defined in 7 CFR part 1400, a person, legal entity, joint operation, or Indian tribe who has an interest in the agricultural operation or who is engaged in agricultural production or forestry management.
Resource concern means a specific natural resource problem that represents a significant concern in a State or region, and is likely to be addressed successfully through the implementation of the conservation activities by participants.
Secretary means the Secretary of USDA.
Socially disadvantaged farmer or rancher means a farmer or rancher who has been subjected to racial or ethnic prejudices because of their identity as a member of a group without regard to their individual qualities. Those groups include African Americans, American Indians or Alaskan Natives, Hispanics, and Asians or Pacific Islanders.
State Conservationist means the NRCS employee authorized to implement WHIP and direct and supervise NRCS activities in a State, Caribbean Area, or the Pacific Islands Area.
State Technical Committee means a committee established by the Secretary in a State pursuant to 16 U.S.C. 3861.
Technical assistance means technical expertise, information, and tools necessary for the conservation of natural resources on land active in agricultural, forestry, or related uses. The term includes the following:
(1) Technical services provided directly to farmers, ranchers, and other eligible entities, such as conservation planning, technical consultation, and assistance with design and implementation of conservation practices; and
(2) Technical infrastructure, including activities, processes, tools, and agency functions needed to support delivery of technical services, such as technical standards, resource inventories, training, data, technology, monitoring, and effects analyses.
Technical service provider means an individual, entity, Indian tribe, or public agency either:
(1) Certified by NRCS and placed on the approved list to provide technical services to participants; or
(2) Selected by the Department to assist the Department in the implementation of conservation programs covered by this part through a procurement contract, contribution agreement, or cooperative agreement with the Department.
Tribal Conservation Advisory Council means a committee established by a State Conservationist to implement consultation as defined in General Manual 410 Part 405.
WHIP plan of operations means the document that identifies the location and timing of conservation activities that the participant agrees to implement on eligible land in order to develop fish and wildlife habitat and provide environmental benefits. The WHIP plan of operations is a part of the WHIP cost-share agreement.
Wildlife means non-domesticated birds, fishes, reptiles, amphibians, invertebrates, and mammals.
Wildlife habitat means the aquatic and terrestrial environments required for fish and wildlife to complete their life cycles, providing air, food, cover, water, and spatial requirements.
§ 636.4 Program requirements.
(a) To participate in WHIP, an applicant must:
(1) Be in compliance with the highly erodible and wetland conservation provisions found in 7 CFR part 12;
(2) Be in compliance with the terms of all other USDA-administered conservation program contracts to which the participant is a party;
(3) Develop and agree to comply with a WHIP plan of operations and O&M agreement, as described in § 636.8;
(4) Enter into a cost-share agreement for the development of fish and wildlife habitat as described in § 636.9;
(5) Provide NRCS with written evidence of ownership or legal control of land for the term of the proposed cost-share agreement, including the O&M agreement. An exception may be made by the Chief in the case of land allotted by the Bureau of Indian Affairs (BIA) or Indian land where there is sufficient assurance of control;
(6) Agree to provide all information to NRCS determined to be necessary to assess the merits of a proposed project and to monitor cost-share agreement compliance;
(7) Agree to grant to NRCS or its representatives access to the land for purposes related to application, assessment, monitoring, enforcement, verification of certifications, or other actions required to implement this part;
(8) Provide a list of all members of the legal entity and embedded entities along with members’ tax identification numbers and percentage interest in the entity. Where applicable, American Indians, Alaska Natives, and Pacific Islanders may use another unique identification number for each individual eligible for payment;
(9) With regard to cost-share agreements with individual Indians or Indians represented by the BIA, payments exceeding the payment limitation may be made to the tribal participant if a BIA or tribal official certifies in writing that no one individual, directly or indirectly, will receive more than the payment limitation. The BIA or tribal entity must also provide annually, a listing of individuals and payments made, by tax identification number or other unique identification number, during the previous year for calculation of overall payment limitations. The tribal entity must also produce, at the request of NRCS, proof of payments made to the person or legal entity that incurred costs related to conservation activity implementation;
(10) Supply information, as required by NRCS, to determine eligibility for the program including, but not limited to, information to verify the applicant’s status as a limited resource farmer or rancher or beginning farmer or rancher and payment eligibility as established by 7 CFR part 1400, Adjusted Gross Income (AGI); and
(11) With regard to any participant that utilizes a unique identification number as an alternative to a tax identification number, the participant will utilize only that identifier for any and all other WHIP cost-share agreements to which the participant is a party. Violators will be considered to have provided fraudulent representation and are subject to § 636.13.
(b) Eligible land includes:
(1) Private agricultural land;
(2) NIPF;
(3) Indian land; and
(4) Trust land owned in fee title by a State, including an agency or subdivision of a State, when such trust land is held under a long-term lease by a person or nongovernmental entity and when the Chief determines that (i) by the nature of the lease, such land is tantamount to private agricultural land; (ii) the duration of the lease is at least the length of any WHIP agreement; and (iii) no funds under the WHIP program are paid to a governmental entity.
(c) Ineligible land. NRCS will not provide cost-share assistance with respect to land:
(1) Enrolled in a program where fish and wildlife habitat objectives have been sufficiently achieved, as determined by NRCS;
(2) With onsite or offsite conditions which NRCS determines would undermine the benefits of the habitat development or otherwise reduce its value;
(3) On which habitat for threatened or endangered species, as defined in section 3 of the ESA, 16 U.S.C. 1532, would be adversely affected; or
(4) That is owned in fee title by an agency of the United States, other than:
(i) Land held in trust for Indian tribes, and
(ii) Lands owned in fee title by a State, including an agency or subdivision of a State or a unit of government except as provided in § 636.4(b)(4).
§ 636.5 National priorities.
(a) The following national priorities will be used in WHIP implementation:
(1) Promote the restoration of declining or important native fish and wildlife habitats;
(2) Protect, restore, develop, or enhance fish and wildlife habitat to benefit at-risk species;
(3) Reduce the impacts of invasive species on fish and wildlife habitats;
(4) Protect, restore, develop, or enhance declining or important aquatic wildlife species’ habitats; and
(5) Protect, restore, develop, or enhance important migration and other movement corridors for wildlife.
(b) NRCS, with advice of other Federal agencies, will undertake periodic reviews of the national priorities and the effects of program delivery at the State, tribal, and local levels to adapt the program to address emerging resource issues. NRCS will:
(1) Use the national priorities to guide the allocation of WHIP funds to the State offices;
(2) Use the national priorities in conjunction with State, tribal, and local priorities to assist with prioritization and selection of WHIP applications; and
(3) Periodically review and update the national priorities utilizing input from the public, Indian tribes, and affected stakeholders to ensure that the program continues to address priority resource concerns.
§ 636.6 Establishing priority for enrollment in WHIP.
(a) NRCS, in consultation with Federal and State agencies, tribal, and conservation partners, may identify priorities for enrollment in WHIP that will complement the goals and objectives of relevant fish and wildlife conservation initiatives at the State, regional, tribal land, or national levels. In response to national, tribal, regional, or State fish and wildlife habitat concerns, the Chief may focus program implementation in any given year to specific geographic areas or to address specific habitat development needs.
(b) The State Conservationist, with recommendations from the State Technical Committee and Tribal Conservation Advisory Council (for tribal land), may give priority to WHIP projects that will address unique habitats or special geographic areas identified in the State. Subsequent cost-share agreement offers that would complement previous cost-share agreements due to geographic proximity of the lands involved or other relationships may receive priority consideration for participation.
(c) NRCS will evaluate the applications and make enrollment decisions based on the fish and wildlife habitat need using some or all of the following criteria:
(1) Contribution to resolving an identified habitat concern of national, tribal, regional, or State importance including at-risk species;
(2) Relationship to any established wildlife or conservation priority areas;
(3) Duration of benefits to be obtained from the habitat development practices;
(4) Self-sustaining nature of the habitat development practices;
(5) Availability of other partnership matching funds or reduced funding request by the person applying for participation;
(6) Estimated costs of fish and wildlife habitat development activities;
(7) Other factors determined appropriate by NRCS to meet the objectives of the program; and
(8) Willingness of the applicant to complete all conservation improvements during the first 2 years of the WHIP cost-share agreement.
(a) NRCS may share the cost with a participant for implementing the conservation activities as provided in the WHIP plan of operations that is a component of the WHIP cost-share agreement:
(1) Except as provided in paragraph (a)(2) of this section and in § 636.9(c), NRCS will offer to pay no more than 75 percent of the costs to develop fish and wildlife habitat. The cost-share payment to a participant will be reduced proportionately below 75 percent to the extent that direct Federal financial assistance is provided to the participant from sources other than NRCS, except for certain cases that merit additional cost-share assistance to achieve the intended goals of the program, as determined by the State Conservationist.
(2) Historically underserved producers, as defined in § 636.3, and Indian tribes may receive the applicable payment rate and an additional rate that is not less than 25 percent above the applicable rate, provided that this increase does not exceed 90 percent of the estimated costs associated with WHIP plan of operations implementation.
(b) Cost-share payments may be made only upon a determination by NRCS that a conservation activity or an identifiable component of a conservation activity has been established in compliance with appropriate standards and specifications.
(c) Payments will not be made for a conservation activity that was:
(1) Applied prior to application for the program; or
(2) Initiated or implemented prior to cost-share agreement approval, unless a waiver was granted by the State Conservationist or designated conservationist prior to implementation.
(d) NRCS, in consultation with the State Technical Committee, will identify and provide public notice of the conservation activities eligible for payment under the program.
(e) Cost-share payments may be made for the establishment and installation of additional eligible conservation activities, or the maintenance or replacement of an eligible conservation activity, but only if NRCS determines the conservation activity is needed to meet the objectives of the program, or that the failure of the original project was due to reasons beyond the control of the participant.
(f) Payments made or attributed to a participant, directly or indirectly, may not exceed, in the aggregate, $50,000 per year.
(g) Eligibility for payment in accordance with 7 CFR part 1400, subpart G, average AGI limitation, will be determined prior to cost-share agreement approval.
(h) Subject to fund availability, the payment rates identified in a WHIP contract may be adjusted by NRCS to reflect increased costs.
(i) A participant will not be eligible for payments for conservation activities on eligible land if the participant receives payments or other benefits for the same activity on the same land under any other conservation program administered by USDA.
(j) Before NRCS will approve and issue final payment, the participant must certify that the conservation activity has been completed in accordance with the cost-share agreement, and NRCS or an approved Technical Service Provider (TSP) must certify that the activity has been carried out in accordance with the applicable FOTG.
(k) NRCS, for a fiscal year, may use up to 25 percent of WHIP funds to carry out cost-share agreements described in § 636.9(c).
§ 636.8 WHIP plan of operations.
(a) As a condition of participation, the participant develops a WHIP plan of operations with the assistance of NRCS or other public or private natural resource professionals who are approved by NRCS. A WHIP plan of operations encompasses the parcel of land where habitat will be established, improved, protected, enhanced, or restored. The WHIP plan of operations will be approved by NRCS and address at least one of the following as determined by NRCS:
(1) Fish and wildlife habitat conditions that are of concern to the participant;
(2) Fish and wildlife habitat concerns identified in State, regional, tribal land, or national conservation initiatives, as referenced in § 636.6(a); or
(3) Fish and wildlife habitat concerns identified in an approved area-wide plan that addresses the wildlife resource habitat concern.
(b) The WHIP plan of operations forms the basis for the WHIP cost-share agreement and will be attached and included as part of the cost-share agreement, along with the O&M agreement. The WHIP plan of operations includes a schedule for implementation and maintenance of the conservation activities, as determined by NRCS.
(c) The WHIP plan of operations may be modified in accordance with § 636.10.
(d) All conservation activities in the WHIP plan of operations must be approved by NRCS and developed and carried out in accordance with the applicable FOTG.
(e) The participant is responsible for the implementation of the WHIP plan of operations.
(a) To apply for WHIP cost-share assistance, a person, tribe, or legal entity must submit an application for participation at a USDA Service Center to an NRCS representative.
(b) A WHIP cost-share agreement will:
(1) Incorporate the WHIP plan of operations;
(2) Be for a time period agreed to by the participant and NRCS, with a minimum duration of one year after the completion of conservation activities identified in the WHIP plan of operations and a maximum of 10 years, except for agreements entered into under paragraph (c) of this section;
(3) Include all provisions as required by law or statute;
(4) Include any participant reporting and recordkeeping requirements to determine compliance with the cost-share agreement and program;
(5) Be signed by the participant;
(6) Specify payment limits described in § 636.7(f) including any additional payment limitation associated with determinations made under § 636.7(g);
(7) Include an O&M agreement that describes the O&M for each conservation activity and the agency expectation that WHIP-funded conservation activities will be operated and maintained for their expected lifespan; and
(8) Include any other provision determined necessary or appropriate by the NRCS representative.
(c) Notwithstanding any limitation of this part, NRCS may enter into a long-term cost-share agreement that:
(1) Is for a term of at least 15 years;
(2) Protects and restores essential plant or animal habitat, as determined by NRCS; and
(3) Provides cost-share payments of no more than 90 percent of the cost of implementing the WHIP plan of operations to develop fish and wildlife habitat.
§ 636.10 Modifications.
(a) The participant and NRCS may modify a cost-share agreement if both parties agree to the modification. The WHIP plan of operations is revised in accordance with NRCS requirements, and the agreement is approved by the designated conservationist.
(b) Any modifications made under this section must meet WHIP program objectives and must be in compliance with this part.
(c) In the event implementation of a conservation activity fails through no fault of the participant, the State Conservationist may modify the cost-share agreement in order to issue payments to re-implement the activity, at the rates established in accordance with § 636.7, provided such payments do not exceed the payment limitation requirements as set forth in § 636.7.
(d) Where circumstances beyond the participant’s control or when it is in the public interest, such as matters of health or safety, the State Conservationist may independently or by mutual agreement with the parties modify or terminate the cost-share agreement as provided for in § 636.12.
(a) A participant is responsible for notifying NRCS when he or she anticipates the voluntary or involuntary loss of control of the land covered by a WHIP cost-share agreement during the term of the agreement.
(b) The participant and NRCS may agree to transfer a cost-share agreement to another potential participant. The transferee must be determined by NRCS to be eligible to participate in WHIP and must assume full responsibility under the cost-share agreement.
(c) With respect to any and all payments owed to participants who wish to transfer ownership or control of land subject to a cost-share agreement, the division of payment will be determined by the original party and that party’s successor. In the event of a dispute or claim on the distribution of cost-share payments, NRCS may withhold payments without the accrual of interest pending a settlement or adjudication on the rights to the funds.
(d) If new participants are not willing or not eligible to assume the responsibilities of an existing WHIP cost-share agreement, including the O&M agreement, and the participant fails to implement the cost-share agreement, then NRCS will terminate the agreement and may require that all cost-share payments be forfeited, refunded, or both, with applicable interest in accordance with § 636.12. Participants may be subject to liquidated damages in accordance with § 636.12.
(a) The State Conservationist may, independently or by mutual agreement with the parties to the cost-share agreement, terminate the cost-share agreement where:
(1) The parties to the cost-share agreement are unable to comply with the terms of the cost-share agreement as the result of conditions beyond their control;
(2) Termination of the cost-share agreement would, as determined by the State Conservationist, be in the public interest; or
(3) A participant fails to correct a violation of a cost-share agreement within the period provided by NRCS in accordance with § 636.13.
(b) If NRCS terminates a cost-share agreement, in accordance with the provisions of paragraphs (a)(1) and (a)(2) of this section the State Conservationist may allow the participant to retain a portion of any payments received appropriate to the effort the participant has made to comply with the contract.
(1) NRCS may require a participant to provide only a partial refund of the payments received if a previously implemented conservation activity can function independently, and is not adversely affected by the violation or the absence of other conservation activities that would have been implemented under the cost-share agreement; and
(2) The State Conservationist will have the option to waive all or part of the liquidated damages assessed, depending upon the circumstances of the case.
(c) When making termination decisions, NRCS may reduce the amount of money owed by the participant by a proportion that reflects:
(1) The good faith effort of the participant to comply with the cost-share agreement; or
(2) The existence of hardships beyond the participant’s control that have prevented compliance. If a participant claims hardship, that claim must be documented and cannot have existed when the applicant applied for participation in the program.
§ 636.13 Violations and remedies.
(a) If NRCS determines that a participant is in violation of a cost-share agreement, NRCS will give the parties to the cost-share agreement notice of the violation and a minimum of 60 days to correct the violation and comply with the terms of the cost-share agreement and attachments thereto.
(b) If the participant fails to correct the violation of a cost-share agreement within the period provided by NRCS under paragraph (a) of this section, NRCS may terminate the agreement and require the participant to refund all or part of any of the funds issued under that cost-share agreement, plus interest, and may assess liquidated damages as indicated in the cost-share agreement appendix, as well as require the participant to forfeit all rights to any future payment under the agreement.
(c) If NRCS terminates a cost-share agreement due to breach of contract, the participant will forfeit all rights to future payments under the agreement, may be required to pay liquidated damages in an amount determined by the State Conservationist in accordance with the terms of the agreement, and will refund all or part of the payments received, plus interest. Participants violating WHIP cost-share agreements may be determined ineligible for future NRCS-administered conservation program funding.
§ 636.14 Misrepresentation and scheme or device.
(a) A participant who is determined to have erroneously represented any fact affecting a program determination made in accordance with this part, will not be entitled to cost-share agreement payments and must refund to NRCS all payments and pay liquidated damages, plus interest, as determined by NRCS.
(b) A participant will refund to NRCS all payments, plus interest, as determined by NRCS, with respect to all NRCS cost-share agreements to which they are a party if they are determined to have knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose of the program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination.
(c) Other NRCS cost-share agreements where this person is a participant may be terminated.
§ 636.15 Offsets and assignments.
(a) Except as provided in paragraph (b) of this section, any payment or portion thereof to any person or legal entity will be made without regard to questions of title under State law and without regard to any claim or lien against the land, or proceeds thereof, in favor of the owner or any other creditor except agencies of the United States Government. The regulations governing offsets and withholdings found at 7 CFR part 1403 of this title will be applicable to cost-share agreement payments.
(b) WHIP participants may assign any payments in accordance with 7 CFR part 1404.
§ 636.16 Appeals.
(a) Any participant may obtain reconsideration and review of determinations affecting participation in this program in accordance with 7 CFR parts 11 and 614, except as provided in paragraph (b) of this section.
(b) In accordance with the provisions of the Department of Agriculture Reorganization Act of 1994, Public Law 103-354 (7 U.S.C. 6901), the following decisions are not appealable:
(1) Payment rates, payment limits, and cost-share percentages;
(2) The designation of approved fish and wildlife priority areas, habitats, or activities;
(3) NRCS program funding decisions;
(4) Eligible conservation activities; and
(5) Other matters of general applicability.
(c) Before a participant may seek judicial review of any action taken under this part, the participant must exhaust all administrative appeal procedures set forth in paragraph (a) of this section.
§ 636.17 Compliance with regulatory measures.
(a) Participants who implement the WHIP plan of operations will be responsible for obtaining the authorities, rights, easements, permits, or other approvals necessary for the implementation, operation, and maintenance of the conservation activities in keeping with applicable laws and regulations. The requirement for the participant to obtain necessary permits is included in the terms and conditions of the contract appendix.
(b) Participants will be responsible for compliance with all laws and for all effects or actions resulting from the participants’ performance under the cost-share agreement.
§ 636.18 Technical services provided by qualified personnel not affiliated with USDA.
(a) NRCS may use the services of qualified TSPs in performing its responsibilities for technical assistance.
(b) Participants may use technical services from qualified personnel of other Federal, State, and local agencies, Indian tribes, or individuals who are certified as TSPs by NRCS.
(c) Technical services provided by qualified personnel not affiliated with USDA may include, but are not limited to, conservation planning; conservation practice survey, layout, design, installation, and certification; and related technical services as defined in 7 CFR part 652.
(d) NRCS retains approval authority over certification of work done by non-NRCS personnel for the purpose of approving WHIP payments.
§ 636.19 Access to operating unit.
As a condition of program participation, any authorized NRCS representative will have the right to enter an agricultural operation or tract for the purposes of determining eligibility and for ascertaining the accuracy of any representations related to cost-share agreements and performance. Access will include the right to provide technical assistance; determine eligibility; inspect any work undertaken under the cost-share agreements, including the WHIP plan of operations and O&M agreement; and collect information necessary to evaluate the habitat development performance specified in the cost-share agreements. The NRCS representative will make a reasonable effort to contact the participant prior to the exercising of this provision.
§ 636.20 Equitable relief.
(a) If a participant relied upon the advice or action of any authorized NRCS representative and did not know, or have reason to know, that the advice or action was improper or erroneous, NRCS may grant relief in accordance with 7 CFR part 635. Where a participant believes that detrimental reliance on the advice or action of a NRCS representative resulted in an ineligibility or program violation, the participant may request equitable relief under 7 CFR 635.3. The financial or technical liability for any action by a participant that was taken based on the advice of a NRCS certified non-USDA TSP is the responsibility of the certified TSP and will not be assumed by NRCS when NRCS authorizes payment.
(b) If during the term of a WHIP cost-share agreement a participant has been found in violation of a provision of the cost-share agreement, the O&M agreement, or any document incorporated by reference through failure to fully comply with that provision, the participant may be eligible for equitable relief under 7 CFR 635.4.
§ 636.21 Environmental services credits for conservation improvements.
USDA recognizes that environmental benefits will be achieved by implementing conservation activities funded through WHIP, and that environmental credits may be gained as a result of implementing activities compatible with the purposes of a WHIP cost-share agreement. NRCS asserts no direct or indirect interest on any such credits. However, NRCS retains the authority to ensure that program purposes are met and the requirements for WHIP funded improvements are met and maintained consistent with §§ 636.8 and 636.9. Where activities required under an environmental credit agreement may affect land covered under a WHIP cost-share agreement, participants are highly encouraged to request a compatibility assessment from NRCS prior to entering into such agreements. The WHIP cost-share agreement may be modified, in accordance with policies outlined in § 636.10, provided the modification meets WHIP purposes and is in compliance with this part.
SUBCHAPTER E [RESERVED]
SUBCHAPTER F – SUPPORT ACTIVITIES
PART 650 – COMPLIANCE WITH NEPA
Subpart A – Procedures for NRCS-Assisted Programs
§ 650.1 Purpose.
(a) This rule prescribes procedures by which NRCS is to implement the provisions of NEPA. The Natural Resources Conservation Service recognizes NEPA as the national charter for protection, restoration, and enhancement of the human environment. NEPA establishes policy, sets goals (Section 101), and provides means (Section 102) for carrying out this policy.
(b) The procedures included in this rule supplement CEQ’s NEPA regulations, 40 CFR parts 1500-1508. CEQ regulations that need no additional elaboration to address NRCS-assisted actions are not repeated in this rule, although the regulations are cited as references. The procedures include some overlap with CEQ regulations. This is done to highlight items of importance for NRCS. This does not supersede the existing body of NEPA regulations.
(c) These procedures provide that –
(1) Environmental information is to be available to citizens before decisions are made about actions that significantly affect the human environment;
(2) NRCS-assisted actions are to be supported to the extent possible by accurate scientific analyses that are technically acceptable to NRCS;
(3) NRCS-prepared NEPA documents are to be available for public scrutiny; and
(4) Documents are to concentrate on the issues that are timely and significant to the action in question rather than amassing needless detail.
(d) Procedures for implementing NEPA are designed to ensure that environmental consequences are considered in decisionmaking. They allow NRCS to assist individuals and nonfederal public entities to take actions that protect, enhance, and restore environmental quality.
(e) These procedures make possible the early identification of actions that have significant effects on the human environment to avoid delays in decisionmaking.
§ 650.2 Applicability.
This rule applies to all NRCS-assisted programs including the uninstalled parts of approved projects that are not covered by environmental documents prepared under previous rules for compliance with NEPA. It is effective on the date of publication of the final rule. NRCS is to consult with CEQ in the manner prescribed by 40 CFR 1506.11 if it is necessary to take emergency actions.
§ 650.3 Policy.
(a) NRCS mission. The NRCS mission is to provide assistance that will allow use and management of ecological, cultural, natural, physical, social, and economic resources by striving for a balance between use, management, conservation, and preservation of the Nation’s natural resource base. The NRCS mission is reemphasized and expanded to carry out the mandate of section 101(b) of NEPA, within other legislative constraints, in all its programs of Federal assistance. NRCS will continue to improve and coordinate its plans, functions, programs, and recommendations on resource use so that Americans, as stewards of the environment for succeeding generations –
(1) Can maintain safe, healthful, productive, and esthetically and culturally pleasing surroundings that support diversity of individual choices; and
(2) Are encouraged to attain the widest range of beneficial uses of soil, water, and related resources without degradation to the environment, risk to health or safety, or other undesirable and unintended consequences.
(b) NRCS environmental policy. NRCS is to administer Federal assistance within the following overall environmental policies:
(1) Provide assistance to Americans that will motivate them to maintain equilibrium among their ecological, cultural, natural, physical, social, and economic resources by striving for a balance between conserving and preserving the Nation’s natural resource base.
(2) Provide technical and financial assistance through a systematic interdisciplinary approach to planning and decisionmaking to insure a balance between the natural, physical, and social sciences.
(3) Consider environmental quality equal to economic, social, and other factors in decisionmaking.
(4) Insure that plans satisfy identified needs and at the same time minimize adverse effects of planned actions on the human environment through interdisciplinary planning before providing technical and financial assistance.
(5) Counsel with highly qualified and experienced specialists from within and outside NRCS in many technical fields as needed.
(6) Encourage broad public participation in defining environmental quality objectives and needs.
(7) Identify and make provisions for detailed survey, recovery, protection, or preservation of unique cultural resources that otherwise may be irrevocably lost or destroyed by NRCS-assisted project actions, as required by Historic Preservation legislation and/or Executive Order.
(8) Encourage local sponsors to review with interested publics the operation and maintenance programs of completed projects to insure that environmental quality is not degraded.
(9) Advocate the retention of important farmlands and forestlands, prime rangeland, wetlands, or other lands designated by State or local governments. Whenever proposed conversions are caused or encouraged by actions or programs of a Federal agency, licensed by or require approval by a Federal agency, or are inconsistent with local or State government plans, provisions are to be sought to insure that such lands are not irreversibly converted to other uses unless other national interests override the importance of preservation or otherwise outweigh the environmental benefits derived from their protection. In addition, the preservation of farmland in general provides the benefits of open space, protection of scenery, wildlife habitat, and in some cases, recreation opportunities and controls on urban sprawl.
(10) Advocate actions that reduce the risk of flood loss; minimize effects of floods on human safety, health, and welfare; and restore and preserve the natural and beneficial functions and values of flood plains.
(11) Advocate and assist in the reclamation of abandoned surface-mined lands and in planning for the extraction of coal and other nonrenewable resources to facilitate restoration of the land to its prior productivity as mining is completed.
(12) Advocate the protection of valuable wetlands, threatened and endangered animal and plant species and their habitats, and designated ecosystems.
(13) Advocate the conservation of natural and manmade scenic resources to insure that NRCS-assisted programs or activities protect and enhance the visual quality of the landscape.
(14) Advocate and assist in actions to preserve and enhance the quality of the Nation’s waters.
§ 650.4 Definition of terms.
Definitions of the following terms or phrases appear in 40 CFR part 1508, CEQ regulations. These terms are important in the understanding and implementation of this rule. These definitions are not repeated in the interest of reducing duplication:
(a) Channel realignment. Channel realignment includes the construction of a new channel or a new alignment and may include the clearing, snagging, widening, and/or deepening of the existing channel. (Channel Modification Guidelines, 43 FR 8276).
(b) Environmental assessment (EA). (40 CFR 1508.9)
(1) An environmental assessment is a concise public document for which a Federal agency is responsible that –
(i) Briefly provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.
(ii) Aids an agency’s compliance with the Act when no environmental impact statement is necessary.
(iii) Facilitates preparation of an environmental impact statement when one is necessary.
(2) An environmental assessment includes brief discussions of the need for the proposal, alternatives as required by section of the environmental impacts of the proposed action and alternatives, and a list of agencies and persons consulted.
(c) Environmental evaluation. The environmental evaluation (EE) (formerly referred to by NRCS as an environmental assessment) is the part of planning that inventories and estimates the potential effects on the human environment of alternative solutions to resource problems. A wide range of environmental data together with social and economic information is considered in determining whether a proposed action is a major Federal action significantly affecting the human environment. The environmental evaluation for a program, regulation, or individual action is used to determine the need for an environmental assessment or an environmental impact statement. It also aids in the consideration of alternatives and in the identification of available resources.
(d) Federally-assisted actions. These actions are planned and carried out by individuals, groups, or local units of government largely on nonfederal land with technical and/or financial assistance provided by NRCS.
(e) Interdisciplinary planning. NRCS uses an interdisciplinary environmental evaluation and planning approach in which specialists and groups having different technical expertise act as a team to jointly evaluate existing and future environmental quality. The interdisciplinary group considers structure and function of natural resource systems, complexity of problems, and the economic, social, and environmental effects of alternative actions. Public participation is an essential part of effective interdisciplinary planning. Even if an NRCS employee provides direct assistance to an individual land user, the basic data used is a result of interdisciplinary development of guide and planning criteria.
(f) Nonproject actions. Nonproject actions consist of technical and/or financial assistance provided to an individual, group, or local unit of government by NRCS primarily through a cooperative agreement with a local conservation district, such as land treatment recommended in the Conservation Operations, Great Plains Conservation, Rural Abandoned Mine, and Rural Clean Water Programs. These actions may include consultations, advice, engineering, and other technical assistance that land users usually cannot accomplish by themselves. Nonproject technical and/or financial assistance may result in the land user installing field terraces, waterways, field leveling, onfarm drainage systems, farm ponds, pasture management, conservation tillage, critical area stablization and other conservation practices.
(g) Notice of intent (NOI) (40 CFR 1508.22). A notice of intent is a brief statement inviting public reaction to the decision by the responsible Federal official to prepare an EIS for a major Federal action. The notice of intent is to be published in the
(h) Project actions. A project action is a formally planned undertaking that is carried out within a specified area by sponsors for the benefit of the general public. Project sponsors are units of government having the legal authority and resources to install, operate, and/or maintain works of improvement.
(i) Record of Decision. (ROD) (40 CFR 1505.2). A record of decision is a concise written rationale by the RFO regarding implementation of a proposed action requiring an environmental impact statement. This was previously defined by NRCS as a Statement of Findings (SOF).
(j) Responsible Federal official (RFO). The NRCS Administrator is the responsible Federal official (RFO) for compliance with NEPA regarding proposed legislation, programs, legislative reports, regulations, and program EIS’s. NRCS state conservationists (STC’s) are the RFO’s for compliance with the provisions of NEPA in other NRCS-assisted actions.
(k) Significantly. (40 CFR 1508.27) “Significantly” as used in NEPA requires considerations of both context and intensity:
(1) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, for a site-specific action, significance usually depends on the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.
(2) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action.
(i) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.
(ii) The degree to which the proposed action affects public health or safety.
(iii) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
(iv) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
(v) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
(vi) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
(vii) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
(viii) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
(ix) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973 as amended.
(x) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.
(l) Finding of no significant impact (FNSI). (40 CFR 1508.13) “Finding of No Significant Impact” means a document by a Federal agency briefly presenting the reasons why an action not otherwise excluded (§ 1508.4) will not have a significant effect on the human environment, and an environmental impact statement therefore will not be prepared. It shall include the environmental assessment or a summary of it and shall note any other environmental documents related to it (§ 1501.7(a)(5)). If the assessment is included, the finding need not repeat any of the discussion in the assessment but may incorporate it by reference.
§ 650.5 Environmental evaluation in planning.
(a) General. Environmental evaluation (EE) integrates environmental concerns throughout the planning, installation, and operation of NRCS-assisted projects. The EE applies to all assistance provided by NRCS, but planning intensity, public involvement, and documentation of actions vary according to the scope of the action. NRCS begins consideration of environmental concerns when information gathered during the environmental evaluation is used:
(1) To identify environmental concerns that may be affected, gather baseline data, and predict effects of alternative courses of actions;
(2) To provide data to applicants for use in establishing objectives commensurate with the scope and complexity of the proposed action;
(3) To assist in the development of alternative courses of action; (40 CFR 1502.14). In NRCS-assisted project actions, nonstructural, water conservation, and other alternatives that are in keeping with the Water Resources Council’s Principles and Standards are considered, if appropriate.
(4) To perform other related investigations and analyses as needed, including economic evaluation, engineering investigations, etc.
(5) To assist in the development of detailed plans for implementation and operation and maintenance.
(b) Procedures. NRCS’s Guide for Environmental Assessment issued in March 1977 and published in the
(c) Decision points. Figure 1 illustrates the decision points for compliance with NEPA in NRCS decisionmaking.
§ 650.6 Categorical exclusions.
(a) Some NRCS programs or parts of programs do not normally create significant individual or cumulative impacts on the human environment. Therefore, an EA or EIS is not needed. These are data gathering and interpretation programs and include:
(1) Soil Survey – 7 CFR part 611;
(2) Snow Survey and Water Supply Forecasts – 7 CFR part 612;
(3) Plant Materials for Conservation – 7 CFR part 613;
(4) Inventory and Monitoring – Catalog of Federal Domestic Assistance – 10.908; and
(5) River Basin Studies under section 6 of Pub. L. 83-566 as amended – 7 CFR part 621.
(b) When any new action is planned under the programs identified in paragraph (a) of this section, the EE performed by the RFO is to identify extraordinary circumstances that might lead to significant individual or cumulative impacts. Actions that have potential for significant impacts on the human environment are not categorically excluded.
(c)(1) The NRCS restoration and conservation actions and activities identified in paragraph (d) of this section are eligible for categorical exclusion and require the RFO to document a determination that a categorical exclusion applies. Agency personnel will use the EE review process detailed in § 650.5 to evaluate proposed activities for extraordinary circumstances and document the determination that the categorical exclusion applies. The extraordinary circumstances address the significance criteria provided in 40 CFR 1508.27.
(2) The extraordinary circumstances identified in paragraph (c)(1) of this section include:
(i) The proposed action cannot cause significant effects on public health or safety.
(ii) The proposed action cannot significantly affect unique characteristics of the geographic area such as proximity to historic properties or cultural resources, park lands, prime farmlands, floodplains, wetlands, wild and scenic rivers, or ecologically critical areas.
(iii) The effects of the proposed action on the quality of the human environment cannot be highly controversial.
(iv) The proposed action cannot have highly uncertain effects, including potential unique or unknown risks on the human environment.
(v) The proposed action cannot include activities or conservation practices that establish a potential precedent for future actions with significant impacts.
(vi) The proposed action is known to have or reasonably cannot be expected to have potentially significant environment impacts to the quality of the human environment either individually or cumulatively over time.
(vii) The proposed action cannot cause or promote the introduction of invasive species or have a significant adverse effect on any of the following special environmental concerns not previously identified in paragraph (c)(2)(B) of this section, such as: endangered and threatened species, environmental justice communities as defined in Executive Order 12898, wetlands, other waters of the United States, wild and scenic rivers, air quality, migratory birds, and bald and golden eagles.
(viii) The proposed action will not violate Federal or other applicable law and requirements for the protection of the environment.
(3) In the absence of any extraordinary circumstances as determined through NRCS’ EE review process, the activities will be able to proceed without preparation of an EA or EIS. Where extraordinary circumstances are determined to exist, the categorical exclusion will not apply, and the appropriate documentation for compliance with NEPA will be prepared. Prior to determining that a proposed action is categorically excluded under paragraph (d) of this section, the proposed action must:
(i) Be designed to mitigate soil erosion, sedimentation, and downstream flooding;
(ii) Require disturbed areas to be vegetated with adapted species that are neither invasive nor noxious;
(iii) Be based on current Federal principals of natural stream dynamics and processes, such as those presented in the Federal Interagency Stream Corridor Restoration Working Group document, “Stream Corridor Restoration, Principles, Processes, and Practices;”
(iv) Incorporate the applicable NRCS conservation practice standards as found in the Field Office Technical Guide;
(v) Not require substantial dredging, excavation, or placement of fill; and
(vi) Not involve a significant risk of exposure to toxic or hazardous substances.
(d) The use of the following categorical exclusions for a proposed action does not waive NRCS compliance with any applicable legal requirement including, but not limited to, the National Historical Preservation Act or the Endangered Species Act. The following categorical exclusions are available for application to proposed actions provided the conditions described in paragraph (c) of this section are met:
(1) Planting appropriate herbaceous and woody vegetation, which does not include noxious weeds or invasive plants, on disturbed sites to restore and maintain the sites ecological functions and services;
(2) Removing dikes and associated appurtenances (such as culverts, pipes, valves, gates, and fencing) to allow waters to access floodplains to the extent that existed prior to the installation of such dikes and associated appurtenances;
(3) Plugging and filling excavated drainage ditches to allow hydrologic conditions to return to pre-drainage conditions to the extent practicable;
(4) Replacing and repairing existing culverts, grade stabilization, and water control structures and other small structures that were damaged by natural disasters where there is no new depth required and only minimal dredging, excavation, or placement of fill is required;
(5) Restoring the natural topographic features of agricultural fields that were altered by farming and ranching activities for the purpose of restoring ecological processes;
(6) Removing or relocating residential, commercial, and other public and private buildings and associated structures constructed in the 100-year floodplain or within the breach inundation area of an existing dam or other flood control structure in order to restore natural hydrologic conditions of inundation or saturation, vegetation, or reduce hazards posed to public safety;
(7) Removing storm debris and sediment following a natural disaster where there is a continuing and eminent threat to public health or safety, property, and natural and cultural resources and removal is necessary to restore lands to pre-disaster conditions to the extent practicable. Excavation will not exceed the pre-disaster condition;
(8) Stabilizing stream banks and associated structures to reduce erosion through bioengineering techniques following a natural disaster to restore pre-disaster conditions to the extent practicable, e.g., utilization of living and nonliving plant materials in combination with natural and synthetic support materials, such as rocks, rip-rap, geo-textiles, for slope stabilization, erosion reduction, and vegetative establishment and establishment of appropriate plant communities (bank shaping and planting, brush mattresses, log, root wad, and boulder stabilization methods);
(9) Repairing or maintenance of existing small structures or improvements (including structures and improvements utilized to restore disturbed or altered wetland, riparian, in stream, or native habitat conditions). Examples of such activities include the repair or stabilization of existing stream crossings for livestock or human passage, levees, culverts, berms, dikes, and associated appurtenances;
(10) Constructing small structures or improvements for the restoration of wetland, riparian, in stream, or native habitats. Examples of activities include installation of fences and construction of small berms, dikes, and associated water control structures;
(11) Restoring an ecosystem, fish and wildlife habitat, biotic community, or population of living resources to a determinable pre-impact condition;
(12) Repairing or maintenance of existing constructed fish passageways, such as fish ladders or spawning areas impacted by natural disasters or human alteration;
(13) Repairing, maintaining, or installing fish screens to existing structures;
(14) Repairing or maintaining principal spillways and appurtenances associated with existing serviceable dams, originally constructed to NRCS standards, in order to meet current safety standards. Work will be confined to the existing footprint of the dam, and no major change in reservoir or downstream operations will result;
(15) Repairing or improving (deepening/widening/armoring) existing auxiliary/emergency spillways associated with dams, originally constructed to NRCS standards, in order to meet current safety standards. Work will be confined to the dam or abutment areas, and no major change in reservoir or downstream operation will result;
(16) Repairing embankment slope failures on structures, originally built to NRCS standards, where the work is confined to the embankment or abutment areas;
(17) Increasing the freeboard (which is the height from the auxiliary (emergency) spillway crest to the top of embankment) of an existing dam or dike, originally built to NRCS standards, by raising the top elevation in order to meet current safety and performance standards. The purpose of the safety standard and associated work is to ensure that during extreme rainfall events, flows are confined to the auxiliary/emergency spillway so that the existing structure is not overtopped which may result in a catastrophic failure. Elevating the top of the dam will not result in an increase to lake or stream levels. Work will be confined to the existing dam and abutment areas, and no major change in reservoir operations will result. Examples of work may include the addition of fill material such as earth or gravel or placement of parapet walls;
(18) Modifying existing residential, commercial, and other public and private buildings to prevent flood damages, such as elevating structures or sealing basements to comply with current State safety standards and Federal performance standards;
(19) Undertaking minor agricultural practices to maintain and restore ecological conditions in floodplains after a natural disaster or on lands impacted by human alteration. Examples of these practices include: mowing, haying, grazing, fencing, off-stream watering facilities, and invasive species control which are undertaken when fish and wildlife are not breeding, nesting, rearing young, or during other sensitive timeframes;
(20) Implementing soil control measures on existing agricultural lands, such as grade stabilization structures (pipe drops), sediment basins, terraces, grassed waterways, filter strips, riparian forest buffer, and critical area planting; and
(21) Implementing water conservation activities on existing agricultural lands, such as minor irrigation land leveling, irrigation water conveyance (pipelines), irrigation water control structures, and various management practices.
§ 650.7 When to prepare an EIS.
The following are categories of NRCS action used to determine whether or not an EIS is to be prepared.
(a) An EIS is required for:
(1) Projects that include stream channel realignment or work to modify channel capacity by deepening or widening where significant aquatic or wildlife habitat exists. The EE will determine if the channel supports significant aquatic or wildlife habitat;
(2) Projects requiring Congressional action;
(3) Broad Federal assistance programs administered by NRCS when the environmental evaluation indicates there may be significant cumulative impacts on the human environment (§ 650.7(e)); and
(4) Other major Federal actions that are determined after environmental evaluation to affect significantly the quality of the human environment (§ 650.7(b)). If it is difficult to determine whether there is a significant impact on the human environment, it may be necessary to complete the EE and prepare an EA in order to decide if an EIS is required.
(b) The RFO is to determine the need for an EIS for each action, program, or regulation. An environmental evaluation, using a systematic interdisciplinary analysis and evaluation of data and information responding to the five provisions of Section 102(2)(C) of NEPA, will assist the RFO in deciding if the action requires the preparation of an EIS. In analyzing and evaluating environmental concerns, the RFO will answer the following questions:
(1) Environmental impact. Will the proposed action significantly affect the quality of the human environment (40 CFR 1508.14)? For example, will it significantly alter or destroy valuable wetlands, important farmlands, cultural resources, or threatened and endangered species? Will it affect social values, water quality, fish and wildlife habitats, or wilderness and scenic areas?
(2) Adverse environmental effects that cannot be avoided. What are the important environmental amenities that would be lost if the proposed action were implemented?
(3) Alternatives. Are there alternatives that would achieve the planning objectives but avoid adverse environmental effects?
(4) Short-term uses versus long-term productivity. Will the proposed actions, in combination with other actions, sacrifice the enhancement of significant long-term productivity as a tradeoff for short-term uses?
(5) Commitment of resources. Will the proposed action irreversibly and irretrievably commit the use of resources such as important farmlands, wetlands, and fish and wildlife habitat?
(c) Criteria for determining the need for a program EIS:
(1) A program EIS is required if the environmental evaluation reveals that actions carried out under the program have individually insignificant but cumulatively significant environmental impacts.
(2) A project EIS, in lieu of a program EIS, is required if the environmental evaluation reveals that actions carried out under the program will have both individually and cumulatively significant environmental impacts. (7 CFR Parts 620 through 623 and 640 through 643).
(d) The RFO, through the process of tiering, is to determine if a site-specific EA or EIS is required for an individually significant action that is included in a program EIS.
§ 650.8 When to prepare an environmental assessment (EA).
An environmental assessment (EA) is to be prepared for:
(a) Land and water resource projects that are not included in § 650.7(a) (1) through (4) for which State and local units of government receive Federal technical and financial assistance from NRCS (7 CFR parts 620 through 623; and 640 through 643); and
(b) Other actions that the EE reveals may be a major Federal action significantly affecting the quality of the human environment.
(c) Criteria for determining the need for a program EA:
(1) A program EA is to be prepared when NRCS has determined, based on the environmental evaluation, that a program EIS is not required and the program and actions to implement the program are not categorically excluded; and
(2) A program EA may also be prepared to aid in NRCS decision-making and to aid in compliance with NEPA.
(d) The RFO, through the process of tiering, is to determine if a site-specific EA or EIS is required for an action that is included in a program EA or EIS.
§ 650.9 NEPA and interagency planning.
(a) Lead agency. (1) NRCS is to be the lead agency for actions under programs it administers. If the actions affect more than one State, the NRCS Administrator is to designate one NRCS state conservationist as the RFO.
(2) NRCS normally takes the role of lead agency in actions that share program responsibilities among USDA agencies if NRCS provides the majority of funds for the actions. If the lead agency role is in question, the role of NRCS and other USDA agencies is to be determined by the USDA Environmental Coordinator, Office of Environmental Quality Activities.
(3) If NRCS and Federal agencies outside USDA cannot agree on which will be the lead agency and which will be the cooperating agencies, the procedures in 40 CFR 1501.5(e) are to be followed.
(4) NRCS, as lead agency, is to coordinate the participation of all concerned agencies in developing the EIS according to the provisions of 40 CFR 1501.6(a).
(b) Cooperating agencies. (1) NRCS is to request, as appropriate, the assistance of cooperating agencies in preparing the environmental evaluation. This assistance will broaden the expertise in the planning and help to avoid future conflict. NRCS is to request assistance in determining the scope of issues to be addressed and identifying the significant issues related to a proposed action from Federal agencies that have jurisdiction by law or special expertise.
(2) NRCS is to act as a cooperating agency if requested. NRCS may request to be designated as a cooperating agency if proposed actions may affect areas of NRCS expertise, such as prime farmlands, soils, erosion control, and agricultural sources of nonpoint pollution. NRCS, as a cooperating agency, is to comply with the requirements of 40 CFR 1501.6(b) to the extent possible depending on funds, personnel, and priority. If insufficient funds or other resources prevent NRCS from participating fully as a cooperating agency, NRCS is to request the lead agency to provide funds or other resources which will allow full participation.
(c) Scoping. See 40 CFR 1501.7 for a definition of scoping.
(1) NRCS is to use scoping to identify and categorize significant environmental issues in its environmental evaluation. Formalized scoping is used to insure that an analytical EIS can be prepared that will reduce paperwork and avoid delay. Scoping allows NRCS to obtain the assistance and consultation of affected agencies that have special expertise or legal jurisdiction in the proposed action. If early environmental evaluation identifies a need for an EIS, NRCS is to publish a notice of intent (NOI) to prepare an EIS. The NOI is to request the assistance of all interested agencies, groups, and persons in determining the scope of the evaluation of the proposed action.
(2) Normally a scoping meeting is held and Federal, State, or local agencies that have special expertise or legal jurisdiction in resource values that may be significantly affected are requested to participate. The scoping meeting will identify agencies that may become cooperating agencies.
(3) In the scoping meeting, the range of actions, alternatives, and impacts to be evaluated and included in the EIS as defined in (40 CFR 1508.25) are to be determined. Tiering (40 CFR 1508.28) may be used to define the relation of the proposed statement to other statements.
(4) Periodic meetings of the cooperating agencies are to be held at important decisionmaking points to provide timely interagency, interdisciplinary participation.
(5) Scoping is to include the items listed in 40 CFR 1501.7(a) and may also include any of the activities in 40 CFR 1501.7(b). Appropriate, timely requests and notification are to be made to promote public participation in scoping in accordance with paragraph (d) of this section.
(6) The RFO through the scoping process will set time and page limits as prescribed in 40 CFR 1501.8. Time and page limits are established by NRCS in consultation with sponsors and others according to the projected availability of resources. The RFO is to make the applicant aware of the possible need for revising time and page limits because of changes in resources.
(d) Public participation – (1) General. Public participation activities begin early in the EE and are to be appropriate to the proposed action. For example, extensive public participation activities are required in the implementation of new programs and project actions, but limited public participation is appropriate for nonproject technical and financial assistance programs on nonfederal land.
(2) Early public involvement. The public is to be invited and encouraged to participate in the early stages of planning, including the consideration of the potential effects of NRCS-assisted actions on significant environmental resources such as wetlands, flood plains, cultural values, endangered species, important farmland.
(3) Project activities. The following are general considerations for providing opportunities for public participation:
(i) Identification of interested public. The interested public consisting of but not limited to individuals, groups, organizations, and government agencies are to be identified, sought out, and encouraged to participate in and contribute to interdisciplinary planning and environmental evaluation.
(ii) Public notices. (40 CFR 1506.6) If the effects of an action are primarily of local concern, notice of each public meeting or hearing should be: Submitted to State and areawide clearinghouses pursuant to OMB Circular A-95 (revised); submitted to Indian tribes if they are interested; published in local newspapers; distributed through other local media; provided to potentially interested community organizations including small business associations; published in newsletters that may be expected to reach potentially interested persons; mailed directly to owners and occupants of nearby or affected property; and posted onsite and offsite in the area where the action is to be located.
(iii) State statutes. If official action by the local units of government cooperating in the proposal is governed by State statute, the public notice and mailing requirement of the statute is to be followed. If the effects of an action are of national concern, notice is to be published in the
(iv) Public meetings. The RFO, after consultation with the sponsors, is to determine when public meetings or hearings are to be held. Public meetings may be in the form of a workshop, tour, open house, etc. Public involvement will include early discussion of flood-plain management and protection of wetlands, where appropriate. Environmental information is to be presented and discussed along with other appropriate information. To the extent practical, pertinent information should be made available before the meetings.
(v) Documentation. The RFO is to maintain a reviewable record of public participation in the environmental evaluation process.
(4) Nonproject activities. Public participation in the planning and application of conservation practices with individual land users is accomplished primarily through conservation districts. These districts are governed by boards of supervisors directors, commissioners, etc., who are elected and/or appointed to insure that soil, water, related resources, and environmental qualities in the district are maintained and improved. The public is to be encouraged to participate in the development of long-range district programs and district annual plans. The district keeps the public informed through public meetings, district newsletters, news stories, radio and television programs, and annual reports.
§ 650.10 Adoption of an EIS prepared by a cooperating agency.
(a) If NRCS adopts an EIS prepared by another Federal or State agency, the RFO is to review the document to insure that it meets the requirements of the CEQ regulations and NRCS-NEPA procedures.
(b) If the actions included in the EIS are substantially the same as those proposed by NRCS, the RFO is to recirculate the EIS as “final.” The final EIS is to include an appropriate explanation of the action. If these actions are not substantially the same, the EIS is to be supplemented and recirculated as a draft EIS. The RFO is to inform the preparing agency of the proposed action.
(c) If the adopted EIS is not final, if it is the subject of a referral under 40 CFR part 1504, or if the statement’s adequacy is in litigation, the RFO is to include an appropriate explanation in the EIS.
(d) The RFO is to take appropriate action to inform the public and appropriate agencies of the proposed action.
§ 650.11 Environmental documents.
(a) NRCS is to use the following documents in compliance with NEPA (see § 650.4):
(1) Environmental assessments (EA)
(2) Environmental impact statements (EIS)
(3) Notice of intent (NOI)
(4) Finding of no significant impact (FNSI)
(5) Record of decision (ROD)
(b) The format and content of each document is to be appropriate to the action being considered and consistent with the CEQ regulations.
(1) To reduce duplication, NRCS may combine environmental documents with other planning documents of the same proposal, as appropriate. For example, NRCS, in consultation with CEQ and the office of the Secretary of Agriculture, has determined that each EIS is to satisfy the requirements for a regulatory impact analysis as required by Executive Order 12044. This may necessitate modifying the recommended CEQ format. If documents are combined, the RFO is to include the information and sections required by the CEQ regulations (40 CFR 1502.10). The environmental impact statement should indicate those considerations, including factors not related to environmental quality, that are likely to be relevant to a decision.
(2) The RFO is to establish the format and content of each document giving full consideration to the guidance and requirements of the CEQ regulations. The NRCS technical service center director is to provide guidance and concurrence on the format and content if the NRCS state conservationist is the RFO. The results of scoping are to determine the content of the EA or the EIS and the amount of detail needed to analyze the impacts.
(3) In addition to the minimum requirements of the CEQ regulations (40 CFR 1502.10), environmental assessments and environmental impact statements are to include –
(i) A brief description of public participation activities of agencies, groups, and individuals during the environmental evaluation;
(ii) A description of the hazard potential of each alternative, including an explanation of the rationale for dam classification and the risk of dam failure from overtopping for other causes;
(iii) Information identifying any approved regional plans for water resource management in the study area (40 CFR 1506.2(d)) and a statement on whether the proposed project is consistent with such plans;
(iv) All Federal permits, licenses, and other entitlements that must be obtained (40 CFR 1502.25(b)); and
(v) A brief description of major environmental problems, conflicts, and disagreements among groups and agencies and how they were resolved. Unresolved conflicts and the NRCS’s proposal for resolving the disagreements before the project is implemented are to be summarized.
(4) Letters of comment and responses. (40 CFR 1503.4, 1502.9(b)) Letters of comment that were received and the responses to these comments are to appended to the final EIS. Opposing views and other substantive comments that were not adequately discussed in the draft EIS are to be incorporated in the final EIS.
(5) Appendix. The RFO may use an appendix to an EA or EIS. If an appendix is too voluminous to be circulated with the EIS, the RFO is to make it available on request. If an appendix is included it is to –
(i) Meet the requirements of 40 CFR 1502.18;
(ii) Identify any methodologies used (40 CFR 1502.24) and make explicit reference to other sources relied on for conclusions; and
(iii) Briefly describe the relationship between the benefit-cost analysis and any analyses of unquantified environmental impacts, values, and amenities. “For purposes of complying with the Act, the weighing of the merits or drawbacks of the various alternatives need not be displayed in a monetary cost benefit and should not be when these are important qualitative considerations.” (40 CFR 1502.23).
§ 650.12 NRCS decisionmaking.
(a) General. The purpose of these procedures is to insure that environmental information is provided to decision makers in a timely manner. The NEPA process is a part of NRCS decisionmaking. The RFO is to insure that the policies and purposes of NEPA and CEQ regulations are complied with in NRCS decisionmaking by:
(1) Including in all decision documents and supporting environmental documents a discussion of all alternatives considered in the decision. Alternatives to be considered in reaching a decision will be available to the public.
(2) Submitting relevant environmental documents, comments, and responses with other decision documents through the review process.
(3) Including in the record of formal rulemaking or adjudicatory proceedings relevent environmental documents, comments and responses.
(4) Providing for pre- and post-project monitoring (40 CFR 1505.2(c), 1505.3) and evaluation in representative projects to insure that planning and evaluation procedures are performed according to sound criteria.
(b) Decision points in NRCS-assisted projects. NRCS administers programs that may have a significant effect on the human environment. Program procedures incorporate provisions for compliance with NEPA and for providing environmental information to the public, other agencies, and decision makers in a timely manner. NRCS provides technical and financial assistance for projects under the Watershed Protection and Flood Prevention and the Resource Conservation and Development (RC&D) programs. These usually require the preparation of project EA’s or EIS’s. The major decisionmaking points and their relation to NEPA compliance are as follows:
(1) For Watershed Protection and Flood Prevention projects:
(i) Application for assistance by the sponsoring local organization (SLO).
(ii) A preauthorization report identifying goals, alternatives, and effects of alternatives (including environmental impacts) prepared by the RFO and submitted to the applicant for decision. It is circulated to local, State, and Federal agencies and public comment is solicited. A decision is made to stop planning assistance or to develop a watershed plan.
(iii) Granting of planning authorization by the Administrator. The RFO must provide an evaluation of the potential environmental impacts to obtain the authorization.
(iv) A watershed agreement between the SLO and NRCS. The agreement is based on a completed watershed plan and associated environmental documents, which have been adequately reviewed within NRCS.
(v) A project agreement between the SLO and the RFO executed after the NEPA process is complete and the watershed plan has been approved and final plans and specifications have been developed.
(2) For RC&D measure plans:
(i) A request for assistance (measure proposal) is reviewed by the RC&D council to insure that the proposal is in accordance with the RC&D area plan. The proposal is then referred to NRCS.
(ii) A preliminary report is prepared by the RFO to identify goals, alternatives, and effects (including environmental impacts). The report is submitted to the sponsor for review. The sponsor may then apply to NRCS for planning assistance for measures considered in the preliminary report.
(iii) An authorization for planning assistance is granted by the RFO.
(iv) The RC&D measure plan is signed by the applicant and the RFO after the preparation and review of the measure plan and environmental documents.
(v) A project agreement is signed between the applicant and the RFO after the NEPA process is complete, the measure plan has been approved, and final plans and specifications have been prepared.
(c) Environmental Impact Statement (EIS) and Record of decision The RFO is to prepare a concise record of decision (ROD) for actions requiring an EIS. The record of decision is to be prepared and signed by the RFO following the 30-day administrative action period initiated by the EPA’s publication of the notice of availability of the final EIS in the
(d) Environmental Assessments and Finding of No Significant Impact (FNSI) – (1) EA’s. If the EA indicates that the proposed action is not a major Federal action significantly affecting the quality of the human environment, the RFO is to prepare a finding of no significant impact (FNSI).
(2) Availability of the FNSI (40 CFR 1501.4(e)(2)). In accordance with CEQ regulations at 40 CFR 1501.4(e)(2), NRCS shall make the EA/FNSI available for public review for thirty days in the following instances: The proposed action is, or closely similar to, one which normally requires the preparation of an EIS as defined by NRCS NEPA implementing regulations at § 650.7, or the nature of the action is one without precedent. When availability for public review for thirty days is not required, NRCS will involve the public in the preparation of the EA/FONSI and make the EA/FONSI available for public review in accordance with CEQ regulations at 40 CFR 1501.4(b) and 1506.6.
(e) Changes in actions. When it appears that a project or other action needs to be changed, the RFO will perform an environmental evaluation of the authorized action to determine whether a supplemental NEPA analysis is necessary before making a change.
§ 650.13 Review and comment.
In addition to the requirements of 40 CFR 1503, 1506.10 and 1506.11, NRCS will take the following steps in distributing EIS’s for review and comment:
(a) Draft EIS’s. Five copies of the draft EIS are to be filed by the RFO with the Office of Environmental Review, A-104, Environmental Protection Agency (EPA), Washington, D.C. At the same time, the RFO is to send copies of the draft EIS to the following:
(1) Other Federal agencies. The regional office of EPA and other agencies that have jurisdiction by law or special expertise with respect to any environmental effect, other Federal agencies (including appropriate field and regional offices), and affected Indian tribes.
(2) State and local agencies. OMB Circular No. A-95 (Revised), through its system of State and areawide clearinghouses, provides a means for obtaining the views of State and local environmental agencies that can assist in the preparation and review of EIS’s
(3) Organizations, groups, and individuals. A copy of the draft EIS is to be sent to the appropriate official of each organization or group and each individual of the interested public (§ 650.9(d)(3)(i)) and to others as requested. A charge may be made for multiple copy requests.
(b) Time period for comment. The time period for review ends 45 days after the date EPA publishes the notice of public availability of the draft in the
(c) News releases. In addition to the notice of availability published in the
(d) Revising a draft EIS. If significant changes in the proposed action are made as a result of comments on the draft EIS, a revised draft EIS may be necessary. The revised draft EIS is to be recirculated for comment in the same manner as a draft EIS.
(e) Final EIS’s. After the review period for the draft EIS, the RFO is to prepare a final EIS, making adjustments where necessary by taking into consideration and responding to significant comments and opposing viewpoints received on the draft EIS. The following steps are to be taken in filing and distributing the final EIS:
(1) Letters of comment are to be appended to the final EIS. If numerous repetitive responses are received, summaries of the repetitive comments and a list of the groups or individuals who commented may be appended in lieu of the actual letter.
(2) The RFO is to send five copies of the final EIS to EPA’s Office of Environmental Review, and a copy of the final EIS to each State and Federal agency, organization, group, and individual who commented on the draft EIS. Single copy requests for copies of the final EIS will be provided without charge. A charge may be made for multiple copy requests.
(3) During the 30-day administrative action period noted in § 650.12(c), NRCS will make its final EIS available to the public (40 CFR 1506.10).
(f) Supplements to EIS’s. (1) If NRCS determines that it is necessary to clarify or amplify a point of concern raised after the final EIS is filed, appropriate clarification or amplification is to be sent to EPA with information copies furnished to those who received copies of the final EIS. The waiting periods do not apply.
(2) If the RFO determines that the final EIS or supplement to the original EIS previously filed becomes inadequate because of a major change in the plan for the proposed action that significantly affects the quality of the human environment, a new EIS is to be prepared, filed, and distributed as described in this section.
Subpart B – Related Environmental Concerns
§ 650.20 Reviewing and commenting on EIS’s prepared by other agencies.
(a) NRCS employees assigned to review and comment on EIS’s prepared by other agencies are to be familiar with NRCS policies and guidelines contained in this part, and NEPA.
(b) EIS’s received for review by NRCS for which NRCS has expertise or interest shall be responded to promptly. Comments are to be objective with the intent to offer suggestions to help minimize adverse impacts of the proposed action to ensure the health and welfare of the agricultural community. Comments are to be based on knowledge readily available. Field office technical guides, soil surveys, field investigation reports, and other resource data and reference materials developed by NRCS and other agencies should be used and cited. It is not intended that special surveys or investigations be conducted to acquire additional information for use in preparing comments.
(c) The NRCS reviewer should consider the following kinds of concerns – (1) The suitability or limitations of the soils for the proposed action. Would an alternative route, location, or layout minimize land use problems and adverse environmental impacts?
(2) Provisions for control of erosion and management of water during construction. Are there resources downstream that would be affected by sediment from the construction area, and does the statement provide for adequate control measures? Will lack of erosion control cause air pollution? Is the stockpiling of topsoil for future use considered in the EIS?
(3) Provisions for soil and water conservation management measures on project lands, rights-of-way, access roads, and borrow areas. Does the statement indicate that enduring soil and water practices are to be installed and maintained?
(4) The effect of water discharges from project lands or rights-of-way onto other properties. Will discharges cause erosion or flooding on other lands? Will discharges affect water quality?
(5) The effects of disruption of the natural drainage patterns and severance of private land units. Does the statement indicate that natural drainage patterns will be maintained? Will bridges, culverts, and other water control structures be located to ensure that adjacent lands are not flooded or otherwise restricted in use? Does the EIS describe the effects of severance on private land ownerships?
(6) The impact on existing soil and water conservation management systems. To what extent will conservation systems be altered, severed, or suffer blocked outlets? Will land use or cover be affected?
(7) Impacts on prime and unique farmland. Would an alternative location or route require less prime farmland? Does the EIS consider secondary effects on prime farmland? What benefits are foregone if prime farmland is taken?
(8) Impacts on ecosystems. Does the EIS describe impacts on major plant communities, and terrestrial and aquatic ecosystems?
(9) Impacts on NRCS-assisted projects. Does the statement reflect the effect of the proposed action on present or planned NRCS assisted projects?
(d) EIS’s referred to NRCS for departmental comments. EIS’s referred by the USDA Coordinator for Environmental Quality Activities to the NRCS national office may designate NRCS as the lead agency for preparing comments for USDA. In this case, the NRCS national office determines whether inputs from STC’s and other USDA agencies are needed. If so, STC’s and other USDA agencies are requested to forward comments to the Environmental Services Division fo use in preparing the USDA response.
(e) EIS’s referred to NRCS for agency comments. EIS’s received by the NRCS national office are screened by the Director, Environmental Services Division to determine which office within NRCS will prepare comments. If the proposed action is within one State, the draft EIS will be forwarded to the appropriate STC and he will reply directly to the agency requesting the comments. If the proposed action involves more than one State, one STC will be designated to forward NRCS comments directly to the agency requesting the comments. In some cases, the action may be national or regional in scope, and require inputs from several offices within NRCS. In this instance, comments will be assembled in the Environmental Services Division for preparation of a response to the agency requesting comments. A copy of each response prepared by a STC should be sent to the Director, Environmental Services Division.
(f) EIS’s sent to NRCS offices other than the national office. If a STC receives an EIS from another agency, he is to respond to the initiating agency. A copy of his comments should be sent to the Director, Environmental Services Division.
(1) EIS’s addressed to NRCS area or field offices. If an EIS is received by a field or area office of NRCS, the STC will coordinate the response.
(2) EIS’s submitted to conservation districts. NRCS may furnish needed soil, water, and related resource information to the district for their use in preparing comments.
(g) Distribution of NRCS comments on other agencies’ draft EIS’s. Five copies of review comments made by NRCS on draft EIS’s prepared by other Federal agencies are to be sent to CEQ.
(h) Third party requests for a copy of NRCS comments on another agency’s EIS will be filled after NRCS has forwarded copies of its letter of comments to CEQ.
(a) Background. The authorities and missions of NRCS, EPA, and state environmental agencies make it imperative that an effective cooperative and coordinative working relationship be developed and maintained in areas of mutual concern. These common areas include air quality, water quality, pesticides, waste recycling and disposal, environmental considerations in land use, Environmental Impact Statements (EIS’s) and environmental considerations in the conservation and development of natural resources.
(b) Policy. NRCS will work closely with EPA in accordance with the provisions of the EPA-USDA Memorandum of Understanding July 31, 1974, at all administrative levels and with related state agencies to meet statutory requirements and to achieve harmonious implementation of all actions of mutual concern directed to improving or maintaining the quality of the environment.
(c) Responsibility – (1) NRCS national office. The Deputy Administrator for Field Services is responsible for overall coordination with EPA at the national office level. The Deputy Administrator for Water Resources is responsible for contacts with EPA in relation to activities of the Water Resources Council on water and related land resource planning and for coordinating work with EPA on EIS development.
(2) Technical service center. The TSC director is responsible for contacts and coordination with EPA regional offices within the group of states served by the TSC.
(3) NRCS state office. The state conservationist is responsible for contacts and coordination with regional representatives of EPA and state environmental agencies in matters of mutual concern within his state.
(d) Coordination and implementation. (1) The NRCS national office will:
(i) Within the framework of USDA agreements and guidelines, develop agreements for undertaking specific activities or projects of national significance and mutual advantage.
(ii) Assist EPA as requested in developing EPA policy, guidelines, and standards.
(iii) Consider EPA needs in soil survey and land, inventory, and monitoring activities.
(iv) Maintain needed liaison and develop mutual guidelines with EPA on water resources work and in coordinating EIS’s.
(v) Advise EPA regarding soils, plant materials, and soil and water conservation techniques.
(vi) Establish procedures for periodic review of NRCS national standards for treatment systems and practices for agricultural pollution abatement, including wind and water erosion and sediment control, transport of pesticides, organic matter and fertilizers, and burning of residues or clearing debris.
(2) The TSC director will:
(i) Within the framework of NRCS memorandums and guidelines coordinate with the EPA regional administrator(s) the development of needed agreements for undertaking specific activities or projects of multistate significance and mutual advantage.
(3) The state conservationist will:
(i) Obtain early input of EPA and interested state and local environmental agencies in the planning process for projects or measures within the state impacting on the environment.
(ii) Coordinate preparations of NRCS practice standards and procedures for agricultural pollution abatement within the state with EPA and related state agencies.
(iii) Encourage the development of a coordinated review and approval process within the state with EPA and appropriate state and local agencies including conservation districts for actions of mutual concern.
(iv) Attempt to resolve all EPA areas of concern on NRCS assisted project-type actions within the state before a final EIS is prepared.
§ 650.22 Rare, threatened, and endangered species of plants and animals.
(a) Background. (1) A variety of plant and animal species of the United States are so reduced in numbers that they are threatened with extinction. The disappearance of any of these would be a biological, cultural, and in some instances an economic loss. Their existence contributes to scientific knowledge and understanding, and their presence adds interest and variety to life.
(2) The principal hazard to threatened and endangered species is the destruction or deterioration of their habitats by human activities such as industrialization, urbanization, agriculture, lumbering, recreation, and transportation. These activities of man will continue but the necessity of recognizing their adverse impacts and selecting alternatives that minimize or eliminate such impacts on threatened and endangered species is imperative.
(3) The Endangered Species Act of 1973 (Pub. L. 93-205, 87 Stat. 884 (16 U.S.C. 1531 et seq.)) provides a means whereby the ecosystems upon which endangered and threatened species depend may be maintained and a program for the conservation of such species. The Act also provides that, in addition to the Department of the Interior, “All other federal departments and agencies shall, in consultation with and with the assistance of the Secretary (of Interior), utilize their authorities for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected states, to be critical.” The Act also:
(i) Defines endangered species as any species in danger of extinction throughout all or a significant portion of its range and threatened species as any species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act uses the category “threatened.” The term “rare” is not used.
(ii) Further defines species as including any subspecies of fish or wildlife or plants and any other group of fish and wildlife of the same species or smaller taxa in common spatial arrangements that interbreed when mature.
(iii) Provides for the Secretary of the Interior to enter into cooperative agreements with states for the purpose of implementing state programs for the conservation of endangered and threatened fish and wildlife. This assistance may include financial grants.
(iv) Provides national lists of endangered and threatened animal and plant species to be maintained by the Secretary of the Interior and published in the
(b) Policy. The Act gives NRCS additional direction for participation in the conservation and protection of endangered and threatened species. As the principal federal agency concerned with land use planning of privately owned rural land and with professional conservation employees headquartered in almost every county, NRCS is uniquely capable of playing a vital role. Additional training will be provided as needed to meet NRCS responsibilities. NRCS will assist in the conservation of threatened and endangered species and consistent with legal requirements avoid or prevent activities detrimental to such species. NRCS concern for these species will not be limited to those listed by the Secretary of the Interior and published in the
(c) Responsibility – (1) NRCS national office. The Administrator will arrange for consultation and coordination of NRCS national office activities with the U.S. Fish and Wildlife Service, other federal agencies, and national organizations.
(2) Technical service center. The TSC director will, within the group of states served by the TSC arrange for consultation and coordination with regional representatives of the U.S. Fish and Wildlife Service, other Federal agencies, and national and regional organizations.
(3) NRCS state office. The state conservationist will arrange for consultation and coordination with the state fish and game or conservation agency, other state agencies, state organizations and foundations, conservation districts, and state representatives of federal agencies and national organizations.
(d) Coordination and implementation. (1) The NRCS national office will:
(i) Within the framework of national legislation, USDA agreements, and NRCS objectives, develop NRCS policies and directives for guiding agency efforts that will protect threatened and endangered species and for avoiding actions that jeopardize the continued existence of such species and their critical habitats.
(ii) Maintain needed liaison and develop mutual understanding with the U.S. Fish and Wildlife Service and other concerned federal agencies.
(iii) Establish procedures for periodic review of NRCS participation in the national effort to conserve these species.
(2) The TSC director will: (i) Within the framework of NRCS policies and guidelines, arrange for needed liaison and understanding with regional counterparts of other federal agencies within the group of states served by the TSC and keep state conservationists informed of developments within such states.
(ii) Provide guidance and assistance to state conservationists in carrying out NRCS policies and guidelines.
(3) The state conservationist will develop procedures to establish working relationships with other concerned federal agencies, state fish and wildlife or conservation agencies, conservation districts, concerned scientists in state university systems and natural history museums, and other informed persons and organizations to offer assistance in:
(i) Preparing or maintaining lists of the state’s threatened and endangered species.
(ii) Determining the geographic occurrence of endangered and threatened species, the nature of their habitat, and that portion of the habitat that is critical to the survival, maintenance, or increase of these species.
(iii) Discussing the kinds of measures important to preserve their habitat.
(iv) A monitoring program that would obtain advanced warning of actions or conditions that could further endanger these species, thereby enabling NRCS and others to take appropriate protective action.
(v) Assisting recovery teams, as appropriate, in preparing species recovery plans of those endangered and threatened species included in Federal lists.
(4) The state conservationist will also:
(i) Keep NRCS area and field offices informed of species listed as being threatened or endangered, geographic area in which they are found, and information such as their numbers, preferred habitat, and critical factors.
(ii) Review the status of threatened and endangered species each December and send a report of the review to the Administrator.
(5) NRCS district conservationists within the geographic range of threatened and endangered species will examine conservation district programs and NRCS operations to evaluate their effects on these species, and recommend to district officials and the state conservationist any action needed for their protection.
(6) NRCS field employees within the geographic range of threatened and endangered species will be continually alert to conditions, actions, or trends that may adversely affect the welfare of these species and report adverse situations to the state conservationist.
§ 650.23 Natural areas.
(a) Background. (1) Natural areas are defined as land or water units where natural conditions are maintained insofar as possible. Natural conditions usually result from allowing ordinary physical and biological processes to operate with a minimum of human intervention. Manipulations may be required on natural areas to maintain or restore features that the areas were established to protect.
(2) Natural areas may be designated areas of Federal, non-Federal government, or privately controlled land. Designation may be formal as provided for under federal regulations for areas of federal land to be administered as natural areas or by foundations or conservation organizations specifically created to acquire and maintain natural areas. Designation may be informal in the case of private landowners who designate a specific area as a natural area and manage it accordingly. Several professional societies concerned with renewable natural resources encourage establishment of natural areas withdrawn from economic uses and recognition of natural areas maintained and managed in economic enterprises.
(3) Natural areas are established and maintained for a variety of purposes including:
(i) Furthering science and education. Natural areas provide sites for research and outdoor classrooms for study of plant and animal communities in environments with particular ecological conditions.
(ii) Monitoring the surrounding environment. Natural areas serve as gauges against which to evaluate changes in land use, vegetation, animal life, air quality, or other environmental values.
(iii) Providing recreation attractions. Natural areas are valued by many people for their scenic, wild, and undisturbed character but must be protected, as needed, to prevent disturbance or alteration of the resources.
(iv) Preserving unique values. Natural areas may be established to protect scenic, biologic, geologic, or paleontologic features.
(v) Serving as a genetic base for native plants and animals. Natural areas may be established to preserve examples of land and water ecosystems with their full range of genetic diversity of native plants and animals including threatened and endangered species.
(b) Policy. NRCS will recognize natural areas, if so dedicated, as a land use, and will support the designation of appropriate natural areas.
(c) Responsibility – (1) NRCS national office. The Administrator will designate a member of the national office staff to act as NRCS representative on the Federal Committee for Ecological Preserves and to provide appropriate liaison with other federal agencies and non-Federal groups concerned with natural areas.
(2) Technical service center. The TSC director will designate a TSC plant sciences discipline leader to provide leadership, appropriate liaison, and assistance on natural areas to NRCS state offices.
(3) NRCS state office. The state conservationist will designate an appropriate NRCS representative to work with other agencies and groups, and will coordinate assistance on natural areas needed by area and field offices.
(d) Coordination and implementation. (1) NRCS technical assistance will be furnished to representatives of administering agencies, foundations, groups, and individuals when requested through conservation districts. Conservation district officers will be encouraged to recognize appropriate natural areas concepts and programs and to participate in them.
(2) NRCS employees will report to state conservationists abuses and potential or actual damages to natural areas that may be found in the course of ordinary business.
(3) NRCS will cooperate with professional societies, groups, and individuals in locating areas suitable for and needed as natural areas.
(4) NRCS employees providing technical assistance to land users must inform them about the impact their decisions may have on adjacent or nearby natural areas. Land users will be encouraged to consult with concerned agencies, societies, and individuals to arrive at mutually satisfactory land use and treatment.
(5) Recommended classification systems for characterizing areas designated as ecological preserves or as natural areas are contained in the following publications:
(6) The NRCS published National List of Scientific Plant Names will be used when scientific names or name symbols are needed for automatic data processing.
§ 650.24 Scenic beauty (visual resource).
(a) Background. Contributions to scenic beauty are a normal product of NRCS work. Strip-cropping, field borders, field windbreaks, and ponds are examples. Emphasis is given to those soil and water conservation measures that contribute to a productive and efficient agriculture and increase the attractiveness of rural America and are in line with goals and objectives of conservation districts. This is best accomplished by considering the landscape visual resource when providing planning assistance to individual landowners, groups, units of government, and watershed and resource conservation development project sponsors. NRCS responsibilities in recreation also offer opportunities to develop the scenic beauty of the rural landscape. Department of Agriculture Secretary’s Memorandum 1695, May 28, 1970, “Protecting and Improving The Quality of the Environment,” includes scenic beauty as an objective of the Department’s programs.
(b) Policy. NRCS will:
(1) Provide technical assistance with full consideration of alternative management and development systems that preserve scenic beauty or improve the visual resource;
(2) Emphasize the application of conservation practices having scenic beauty or visual resource values particularly in waste management systems; field borders, field windbreaks, wetland management, access roads, critical area treatment; design and management of ponds, stream margins, odd areas, and farmsteads; siting or positioning of structures and buildings to be in harmony with the landscape while reducing the potential for erosion; using native and other adaptable plants for conservation which enhance scenic beauty and create variety while linking beauty with utility;
(3) Promote personal pride in landowners in the installation, maintenance, and appearance of conservation practices and their properties;
(4) Select suitable areas for waste products and use of screens to hide “eyesore” areas, and
(5) Encourage conservation districts to include practices which promote scenic beauty in their annual and long-range programs.
(c) Responsibility. The Natural Resources Conservation Service will provide technical assistance through conservation districts to landowners, operators, communities, and state and local governments in developing programs relating to scenic beauty.
(1) NRCS national office. The Administrator will:
(i) Assign appropriate NRCS national office leadership to insure that enhancement of scenic beauty is included in national information, policy, guidelines, standards, guides to specifications for conservation practices without impairing basic soil and water conservation functions.
(ii) Emphasize in plant material center management and in plant materials functions that locating and evaluating plants for forage, erosion control, and recreation or wildlife uses be carried out with full attention to visual resource value.
(2) NRCS state office. The state conservationist will:
(i) Assign appropriate staff member(s) to provide leadership in carrying out scenic beauty policy and procedure within the state.
(ii) Develop and keep current a landscape management plan to improve and maintain the appearance of all real properties under NRCS control, and provide appropriate assistance to owners and managers of properties leased or rented by NRCS.
(iii) Give emphasis to preserving scenic beauty and contributing to the visual resource in the NRCS information program whenever opportunities exist.
(d) Coordination and implementation. (1) The governing body of each conservation district will be encouraged to revise or update its district program to appropriately provide for beautification of the countryside through applicable land use changes and effective soil and water conservation treatment.
(2) In providing assistance to watershed and resource conservation and development project sponsors and other resource planning groups for soil, water, and related resources, emphasis will be given to measures that preserve natural beauty or contribute to the quality of the visual resource.
(3) Local organizations and groups interested in scenic beauty will be contacted and consulted for cooperation in and coordination with NRCS and conservation district efforts.
§ 650.25 Flood-plain management.
Through proper planning, flood plains can be managed to reduce the threat to human life, health, and property in ways that are environmentally sensitive. Most flood plains are valuable for maintaining agricultural and forest products for food and fiber, fish and wildlife habitat, temporary floodwater storage, park and recreation areas, and for maintaining and improving environmental values. NRCS technical and financial assistance is provided to land users primarily on non-Federal land through local conservation districts and other State and local agencies. Through its programs, NRCS encourages sound flood-plain management decisions by land users.
(a) Policy – (1) General. NRCS provides leadership and takes action, where practicable, to conserve, preserve, and restore existing natural and beneficial values in base (100-year) flood plains as part of technical and financial assistance in the programs it administers. In addition, 500-year flood plains are taken into account where there are “critical actions” such as schools, hospitals, nursing homes, utilities, and facilities producing or storing volatile, toxic, or water-reactive materials.
(2) Technical assistance. NRCS provides leadership, through consultation and advice to conservation districts and land users, in the wise use, conservation, and preservation of all land, including flood plains. Handbooks, manuals, and internal memoranda set forth specific planning criteria for addressing flood-plain management in NRCS-assisted programs. The general procedures and guidelines in this part comply with Executive Order (E.O.) 11988, Floodplain Management, dated May 24, 1977, and are consistent with the Water Resources Council’s Unified National Program for Floodplain Management.
(3) Compatible land uses. The NRCS Administrator has determined that providing technical and financial assistance for the following land uses is compatible with E.O. 11988:
(i) Agricultural flood plains that have been used for producing food, feed, forage, fiber, or oilseed for at least 3 of the 5 years before the request for assistance; and
(ii) Agricultural production in accordance with official State or designated area water-quality plans.
(4) Nonproject technical and financial assistance programs. The NRCS Administrator has determined that NRCS may not provide technical and financial assistance to land users if the results of such assisted actions are likely to have significant adverse effects on existing natural and beneficial values in the base flood plain and if NRCS determines that there are practicable alternatives outside the base flood plain. NRCS will make a case-by-case decision on whether to limit assistance whenever a land user proposes converting existing agricultural land to a significantly more intensive agricultural use that could have significant adverse effects on the natural and beneficial values or increase flood risk in the base flood plain. NRCS will carefully evaluate the potential extent of the adverse effects and any increased flood risk.
(5) Project technical and financial assistance programs. In planning and installing land and water resource conservation projects, NRCS will avoid to the extent possible the long and short-term adverse effects of the occupancy and modification of base flood plains. In addition, NRCS also will avoid direct or indirect support of development in the base flood plain wherever there is a practicable alternative. As such, the environmental evaluation required for each project action (§ 650.5 of this part) will include alternatives to avoid adverse effects and incompatible development in base flood plains. Public participation in planning is described in § 650.6 of this part and will comply with section 2(a)(4) of E.O. 11988. Flood-plain management requires the integration of these concerns into NRCS’s National Environmental Policy Act (NEPA) process for project assistance programs as described in Section 650 of this part.
(6) Real property and facilities under NRCS ownership or control. NRCS owns or controls about 30 properties that are used primarily for the evaluation and development of plant materials for erosion control and fish and wildlife habitat plantings (7 CFR Part 613, Plant Materials Centers, 16 U.S.C. 590 a-e, f, and 7 U.S.C. 1010-1011). If NRCS real properties or facilities are located in the base flood plain, NRCS will require an environmental evaluation when new structures and facilities or major modifications are proposed. If it is determined that the only practicable alternative for siting the proposed action may adversely affect the base flood plain, NRCS will design or modify its action to minimize potential harm to or within the flood plain and will prepare and circulate a notice explaining why the action is proposed to be located in the base flood plain. Department of Housing and Urban Development (HUD) flood insurance maps, other available maps, information, or an onsite analysis will be used to determine whether the proposed NRCS action is in the base flood plain. Public participation in the action will be the same as described in § 650.6 of this part.
(b) Responsibility. NRCS provides technical and financial assistance to land users primarily through conservation districts, special purpose districts, and other State or local subdivisions of State government. Acceptance of this assistance is voluntary on the part of the land user. NRCS does not have authority to make land use decisions on non-Federal land. NRCS provides the land user with technical flood hazard data and information on flood-plain natural values. NRCS informs the land user how alternative land use decisions may affect the aquatic and terrestial ecosystems, human safety, property, and public welfare. Alternatives to flood-plain occupancy, modification, and development are discussed onsite with the land user by NRCS.
(1) NRCS National Office. (§ 600.2 of this part). The NRCS Administrator, state conservationist, and district conservationist are the responsible Federal officials in NRCS for implementing the policies expressed in these rules. Any deviation from these rules must be approved by the Administrator. The Deputy Administrator for Programs has authority to oversee the application of policy in NRCS programs. Oversight assistance to state conservationists for flood-plain management will be provided by the NRCS technical service centers (§ 600.3 of this part).
(2) NRCS state offices. (§ 600.4 of this part). Each state conservationist is the responsible Federal official in all NRCS-assisted programs administered within the State. He or she is also responsible for administering the plant materials centers within the State. The state conservationist will assign a staff person who has basic knowledge of landforms, soils, water, and related plant and animal ecosystems to provide technical oversight to ensure that assistance to land users and project sponsors on the wise use, conservation, and preservation of flood plains is compatible with national policy. For NRCS-assisted project actions, the staff person assigned by the state conservationist will consult with the local jurisdictions, sponsoring local organizations, and land users, on the basis of an environmental evaluation, to determine what constitutes significant adverse effects or incompatible development in the base flood plain. The state conservationist is to prepare and circulate a written notice for NRCS-assisted actions for which the only practicable alternative requires siting in a base flood plain and may result in adverse effects or incompatible development. The NRCS NEPA process will be used to integrate flood-plain management into project planning and consultations on land use decisions by land users and project sponsors.
(3) NRCS field offices. The district conservationist (§ 600.6 of this part) is delegated the responsibility for providing technical assistance and approving financial assistance to land users in nonproject actions, where applicable, and for deciding what constitutes an adverse effect or incompatible development of a base flood plain. This assistance will be based on official NRCS policy, rules, guidelines, and procedures in NRCS handbooks, manuals, memoranda, etc. For NRCS-assisted nonproject actions, the district conservationist, on the basis of the environmental evaluation, will advise recipients of technical and financial assistance about what constitutes a significant adverse effect or incompatible development in the base flood plain.
(c) Coordination and implementation. All planning by NRCS staffs is interdisciplinary and encompasses the six NEPA policy statements, the WRC Principles and Standards, and an equivalent of the eight-step decisionmaking process in the WRC’s February 1978 Floodplain Management Guidelines. NRCS internal handbooks, manuals, and memoranda provide detailed information and guidance for NRCS planning and environmental evaluation.
(1) Steps for nonproject technical and financial assistance programs. (i) NRCS assistance programs are voluntary and are carried out through local conservation districts (State entities) primarily on non-Federal, privately owned lands.
(ii) After the land user decides the type, extent, and location of the intended action for which assistance is sought, the district conservationist will determine if the intended action is in the base flood plain by using HUD flood insurance maps, and other available maps and information or by making an onsite determination of the approximate level of the 100-year flood if maps or other usable information are lacking.
(iii) If the district conservationist determines that the land user’s proposed location is outside the base flood plain, and would not cause potential harm within the base flood plain, NRCS will continue to provide assistance, as needed.
(iv) If the district conservationist determines that the land user’s proposed action is within the base flood plain and would likely result in adverse effects, incompatible development, or an increased flood hazard, it is the responsibility of the district conservationist to determine and point out to the land user alternative methods of achieving the objective, as well as alternative locations outside the base flood plain. If the alternative locations are determined to be impractical, the district conservationist will decide whether to continue providing assistance. If the decision is to terminate assistance for the proposed action, the land user and the local conservation district, if one exists, will be notified in writing about the decision.
(v) If the district conservationist decides to continue providing technical and financial assistance for a proposed action in the base flood plain, which is the only practicable alternative, NRCS may require that the proposed action be designed or modified so as to minimize potential harm to or within the flood plain. The district conservationist will prepare and circulate locally a written notice explaining why the action is proposed to be located in the base flood plain.
(2) Steps for project assistance programs. (i) NRCS project assistance to local sponsoring organizations (conservation districts and other legal entities of State government) and land users is carried out primarily on non-Federal land in response to requests for assistance. NRCS helps the local sponsoring organizations prepare a plan for implementing the needed resource measures.
(ii) NRCS uses an interdisciplinary environmental evaluation (§ 650.6 of this part) as a basis for providing recommendations and alternatives to project sponsors. Flood-plain management is an integral part of every NRCS environmental evaluation. NRCS delineates the base flood plain by using detailed HUD flood insurance maps and other available data, as appropriate, and provides recommendations to sponsors on alternatives to avoid adverse effects and incompatible development in base flood plains. NRCS will develop, as needed, detailed 100-year and 500-year flood-plain maps where there are none.
(iii) NRCS’s NEPA process (part 650 of this chapter) is used to integrate the spirit and intent of E.O. 11988 Sections 2(a) and 2(c) into agency planning and recommendations for land and water use decisions by local sponsoring organizations and land users.
(iv) NRCS will terminate assistance to a local sponsoring organization in project programs if it becomes apparent that decisions by land users and local jurisdictions concerning flood-plain management would likely result in adverse effects or incompatible development and the environmental evaluation reveals that there are practicable alternatives to the proposed project that would not cause adverse effects on the base flood plain.
(v) In carrying out the planning and installation of land and water resource conservation projects, NRCS will avoid, to the extent possible, the long-term and short-term adverse effects associated with the occupancy and modification of base flood plains. In addition, NRCS will also avoid direct or indirect support of development in the base flood plain wherever there is a practicable alternative. Where appropriate, NRCS will require design modifications to minimize harm to or within the base flood plain. NRCS will provide appropriate public notice and public participation in the continuing planning process in accordance with NRCS NEPA process.
(vi) NRCS may require the local government to adopt and enforce appropriate flood plain regulations as a condition to receiving project financial assistance.
(3) Actions on property and facilities under NRCS ownership or control. For real property and facilities owned by or under the control of NRCS, the following actions will be taken:
(i) Locate new structures, facilities, etc., outside the base flood plain if there is a practicable alternate site.
(ii) Require public participation in decisions to construct structures, facilities, etc., in flood plains that might result in adverse effects and incompatible development in such areas if no practicable alternatives exist.
(iii) New construction or rehabilitation will be in accordance with the standards and criteria of the National Flood Insurance Program and will include floodproofing and other flood protection measures as appropriate.
PART 651 [RESERVED]
PART 652 – TECHNICAL SERVICE PROVIDER ASSISTANCE
Subpart A – General Provisions
§ 652.1 Applicability.
(a) The regulations in this part set forth the policies, procedures, and requirements related to delivery of technical assistance by individuals and entities other than the Department, hereinafter referred to as technical service providers (TSPs). The Food Security Act of 1985, requires the Secretary to deliver technical assistance to eligible participants for implementation of its Title XII Programs and the conservation activities in the Agricultural Management Assistance Program, 7 U.S.C. 1524, directly, through an agreement with a third party provider, or at the option of the producer through payment to the producer for an approved third party provider. This regulation defines how a participant acquires technical service from a third party TSP, sets forth a certification and decertification process, and establishes a method to make payments for technical services.
(b) TSPs may provide technical services to eligible participants in conservation planning, education and outreach, and assistance with design and implementation of conservation practices applied on private land, Indian land, or where allowed by conservation program rules on public land.
(c) The Chief may implement this part in any of the 50 States, District of Columbia, Commonwealth of Puerto Rico, Guam, Virgin Islands, American Samoa, and the Commonwealth of the Northern Marianna Islands.
§ 652.2 Definitions.
The following definitions apply to this part and all documents issued in accordance with this part, unless specified otherwise:
Approved list means the list of individuals, private sector entities, or public agencies certified by the Natural Resources Conservation Service (NRCS) to provide technical services to a participant.
Certification means the action taken by NRCS to approve:
(1) An individual as meeting the minimum NRCS criteria for providing technical service for conservation planning or a specific conservation practice or system.
(2) An entity or public agency having an employee or employees that meet the minimum NRCS criteria for providing technical service for conservation planning or a specific conservation practice or system.
Chief means the Chief of NRCS or designee.
Conservation activity plan means the conservation practices associated with plan development as authorized under the Food, Conservation, and Energy Act of 2008 (2008 Act).
Conservation plan means a record of the client’s decisions and supporting information for treatment of a land unit or water as a result of the planning process that meets the Field Office Technical Guide quality criteria for each natural resource (soil, water, air, plants, and animals), and takes into account economic and social considerations. The plan describes the schedule of operations and activities needed to solve identified natural resource problems and takes advantage of opportunities at a conservation management system level. The needs of the client, the resources, and Federal, State, and local requirements will be met.
Conservation practice means a specified treatment, such as a structural or vegetative practice, or a land management practice that is planned and applied according to NRCS standards and specifications.
Contribution agreement means the instrument used to acquire technical services under the authority of 7 U.S.C. 6962a.
Cooperative agreement means the same as defined in the Federal Grants and Cooperative Agreement Act, 31 U.S.C. 6301 et seq.
Department means the NRCS, the Farm Service Agency, or any other agency or instrumentality of the Department of Agriculture (USDA) that is assigned responsibility for all or a part of a conservation program subject to this part.
Eligible participant means a producer, landowner, or entity that is participating in, or seeking to participate in, a conservation program covered by this rule in which the producer, landowner, or entity is otherwise eligible to participate.
Entity means a corporation, joint stock company, association, cooperative, limited partnership, limited liability partnership, limited liability company, nonprofit organization, a member of a joint venture, or a member of a similar organization.
Indian land means all lands held in trust by the United States for individual Indians or tribes, or all lands, titles to which are held by individual Indians or tribes, subject to Federal restrictions against alienation or encumbrance, or all lands which are subject to the rights of use, occupancy, and benefit of certain tribes. The term Indian land also includes land for which the title is held in fee status by Indian tribes and the United States Government-owned land under the Bureau of Indian Affairs jurisdiction.
Procurement contract means the same as the term “contract” means under the Federal Grants and Cooperative Agreement Act, 31 U.S.C. 6301 et seq.
Program contract means the document that specifies the rights and obligations of any individual or entity that has been accepted for participation in a program authorized under Title XII of the Food Security Act of 1985, or the Agricultural Management Assistance Program, authorized under 7 U.S.C. 1524.
Public agency means a unit or subdivision of Federal, State, local, or tribal government other than the Department.
Recommending organization means a professional organization, association, licensing board, or similar organization with which NRCS has entered into an agreement to recommend qualified individuals for NRCS certification as TSPs for specific technical services.
Secretary means the Secretary of the Department of Agriculture.
State Conservationist means the NRCS employee authorized to direct and supervise NRCS activities in a State, Caribbean Area, or Pacific Basin Area.
Technical service means the technical assistance provided by TSPs, including conservation planning; education and outreach; and the design, installation, and check-out of approved conservation practices.
Technical service contract means a document that specifies the rights and obligations of an eligible participant to obtain technical services from a TSP where the eligible participant will not receive financial assistance for the implementation of the practice paid for in the technical service contract through participation in a Title XII conservation program or the Agricultural Management Assistance Program, 7 U.S.C. 1524.
Technical service provider means an individual, entity, Indian Tribe, or public agency either:
(1) Certified by NRCS and placed on the approved list to provide technical services to participants; or
(2) Selected by the Department to assist the Department in the implementation of conservation programs covered by this part through a procurement contract, contribution agreement, or cooperative agreement with the Department.
Written agreement means the document that specifies the rights and obligations of any individual or entity that has been authorized by NRCS to receive conservation planning assistance without having a program contract.
§ 652.3 Administration.
(a) As provided in this part, the Department will provide technical assistance to participants directly, or at the option of the participant, through a TSP in accordance with the requirements of this part.
(b) The Chief of NRCS will direct and supervise the administration of the regulations in this part.
(c) NRCS will:
(1) Provide overall leadership and management for the development and administration of a TSP process;
(2) Consult with the Farm Service Agency and other appropriate agencies and entities concerning the availability and utilization of TSPs and the implementation of technical service;
(3) Establish policies, procedures, guidance, and criteria for certification, recertification, decertification, certification renewal, and implementation of the use of TSPs;
(4) Provide training to ensure that persons meet the certification criteria for certain technical expertise when there is a lack of training resources or market outside the agency for such technical expertise. However, any training provided by the Department will be limited to training about Department regulations, policies, procedures, processes, and business and technical tools unique to NRCS; and
(5) Establish a process for verifying information provided to NRCS under this part.
(d) The Department will not make payments under a program contract or written agreement with a participant for technical services provided by a TSP unless the TSP is certified by NRCS for the services provided and is identified on the approved list.
(e) The Department may enter into procurement contracts, contribution agreements, cooperative agreements, or other appropriate instruments to assist the Department in providing technical assistance when implementing conservation programs covered by this part. The Department will ensure that such instruments contain the qualification and performance criteria necessary to ensure quality implementation of the goals and objectives of these conservation programs; therefore, when the Department obtains assistance from a TSP in this manner, the TSP is authorized to provide technical services and receive payment even if such TSP is not certified in accordance with subpart B, nor identified on the approved list.
(f) When a participant acquires technical services from a TSP, the Department is not a party to the agreement between the participant and the TSP. To ensure that quality implementation of the goals and objectives of the conservation programs are met, the TSP must be certified by NRCS in accordance with subpart B of this part and identified on the approved list. Upon request of NRCS, TSPs are required to submit copies of all transcripts, licensing, and certification documentation.
§ 652.4 Technical service standards.
(a) All technical services provided by TSPs must meet USDA standards and specifications as set forth in Departmental manuals, handbooks, guides, and other references for soils mapping and natural resources information, conservation planning, conservation practice application, and other areas of technical assistance.
(b) The Department will only pay a participant for technical services provided in accordance with established NRCS standards, specifications, and requirements. The Department must approve all new technologies and innovative practices, including interim standards and specifications, prior to a TSP initiating technical services for those technologies and practices.
(c) A TSP must assume responsibility in writing for the particular technical services provided. Technical services provided by the TSP must:
(1) Comply with all applicable Federal, State, tribal, and local laws and requirements;
(2) Meet applicable Department standards, specifications, and program requirements;
(3) Be consistent with the particular conservation program goals and objectives for which the program contract was entered into by the Department and the participant; and
(4) Incorporate alternatives that are both cost effective and appropriate to address the resource issues. Conservation alternatives will meet the objectives for the program and participant to whom assistance is provided.
(d) TSPs are responsible for the technical services provided, including any costs, damages, claims, liabilities, and judgments arising from past, present, and future negligent or wrongful acts or omissions of the TSP in connection with the technical service provided.
(e) The Department will not be in breach of any program contract or written agreement if it fails to implement conservation plans or practices or make payment for conservation plans or practices resulting from technical services that do not meet USDA standards and specifications or are not consistent with program requirements.
(f) The participant is responsible for complying with the terms and conditions of the program contract or written agreement, which includes meeting USDA technical standards and specifications for any technical services provided by a TSP.
(g) The TSP will report conservation accomplishments associated with the technical services provided to the Department and the participant.
(h) To the extent allowed under State or tribal law, TSPs may utilize the services of subcontractors to provide specific technical services or expertise needed by the TSP, provided that the subcontractors are certified by NRCS in accordance with this part for the particular technical services to be provided and the technical services are provided in terms of their Certification Agreement. Payments will not be made for any technical services provided by uncertified subcontractors, except when such technical services are provided under the provisions of a procurement contract, cooperative agreement, or contribution agreement with the NRCS.
§ 652.5 Participant acquisition of technical services.
(a) Participants may obtain technical assistance directly from the Department or, when available, from a TSP.
(b) To acquire technical assistance directly from the Department, participants should contact their local USDA Service Center.
(c) To acquire technical services from a TSP, participants must:
(1) Enter into and comply with a program contract or a written agreement prior to acquiring technical services; and
(2) Select a certified TSP from the approved list of TSPs.
(d) The Department may approve written agreements for technical assistance prior to program participation based on available funding and natural resource priorities as identified by the State Conservationist.
(e) The technical assistance indicated in paragraph (d) may include the development of conservation plans or activity plans suitable for subsequent incorporation into a program contract.
(f) The Department may make payment to eligible participants who have a technical service contract and utilize it for technical assistance from a TSP.
(g) The Department will identify in the particular program contract or written agreement the payment provisions for TSPs hired directly by the participant.
(h) To obtain payment for technical services, participants must submit to the Department valid invoices, supporting documentation, and requests for payment. The Department will issue payment within 30 days of receiving these items. The Department may pay a participant for some or all of the costs associated with the technical services provided by a TSP hired by the participant, or upon receipt of an assignment of payment from the participant, make payment directly to the TSP.
(i) Participants must authorize in writing to the Department the disclosure of their records on file with the Department that they wish to make available to specific TSPs.
(j) Payments for technical services will be made only one time for the same technical service provided unless, as determined by the Department, the emergence of new technologies or major changes in the participant’s farming or ranching operations necessitate the need for additional technical services.
(k) The Department will not make payment for activities or services that are customarily provided at no cost by a TSP to a participant as determined by the State Conservationist.
(l) Payment rates for technical services acquired by participants.
(1) NRCS will calculate TSP payment rates for technical services using national, regional, and locally determined price data.
(2) Establishing TSP payment rates.
(i) NRCS will establish guidelines to analyze the local pricing information using a standardized method.
(ii) NRCS will establish TSP payment rates for the various categories of technical services. NRCS will determine the rates according to NRCS regional and local cost data, procurement data, and market data.
(iii) National Headquarters will review and approve State payment rates to ensure consistency where similar resource conditions and agricultural operations exist. Payment rates may vary to some degree between or within States due to differences in State laws, the cost of doing business, competition, and other variables.
(iv) National Headquarters and State levels will review payment rates annually or more frequently, as needed, and adjust the rates based upon data from existing procurement contracts, Federal cost rates, and other appropriate sources.
(v) NRCS may adjust payment rates, as needed, on a case-by-case basis in response to unusual conditions or unforeseen circumstances in delivering technical services such as highly complex technical situations, emergency conditions, serious threats to human health or the environment, or major resource limitations. In these cases, NRCS will set a case-specific TSP payment rate based on the Department’s determination of the scope, magnitude, and timeliness of the technical services needed.
§ 652.6 Department delivery of technical services.
(a) The Department may enter into a procurement contract, contribution agreement, cooperative agreement, or other appropriate instrument to assist the Department in providing technical assistance when implementing the conservation programs covered by this part.
(b) The Department may enter into a procurement contract, contribution agreement, cooperative agreement, or other appropriate instrument with TSPs to provide related technical assistance services that accelerate conservation program delivery. Related technical assistance services may include activities or services that facilitate the development, processing, or implementation of a program contract, such as recording conservation planning decisions and specifications.
(c) NRCS may enter into agreements with other agencies or with a non-Federal entity to provide technical services to eligible participants.
(d) The Department will ensure that such legal instruments contain qualification and performance criteria necessary to ensure quality implementation of these conservation programs. When the Department obtains assistance from a TSP through a procurement contract, contribution agreement, cooperative agreement, or other similar instrument, the TSP is authorized to provide technical services and receive payment even if such TSP is not certified in accordance with subpart B of this part nor identified on the approved list.
(e) The Department will implement procurement contracts, contribution agreements, cooperative agreements, and other appropriate instruments in accordance with applicable Federal acquisition or USDA Federal assistance rules and requirements for competency, quality, and selection, as appropriate. Any contract, contribution agreement, cooperative agreement, or other appropriate instrument entered into under this section will be for a minimum of one year, will not exceed 3 years in duration, and may be renewed upon mutual agreement of the parties.
(f) A TSP may not receive payment twice for the same technical service, such as once from a participant through a program contract or written agreement and then again through a separate contract or agreement made directly with the Department.
(g) The Department will, to the extent practicable, ensure that the amounts paid for technical service under this part are consistent across conservation program areas, unless specific conservation program requirements include additional tasks.
§ 652.7 Quality assurance.
(a) NRCS will review, in consultation with the Farm Service Agency, as appropriate, the quality of the technical services provided by TSPs. As a requirement of certification, TSPs must develop and maintain documentation in accordance with Departmental manuals, handbooks, and technical guidance for the technical services provided, and provide this documentation to NRCS and the participant when the particular technical service is completed. NRCS may utilize information obtained through its quality assurance process, documentation submitted by the TSP, and other relevant information in determining how to improve the quality of technical service, as well as determining whether to decertify a TSP under subpart C of this part.
(b) Upon discovery of a deficiency in the provision of technical service through its quality assurance process or other means, NRCS will, to the greatest extent practicable, send a notice to the TSP detailing the deficiency and requesting remedial action by the TSP. Failure by the TSP to promptly remedy the deficiency, or the occurrence of repeated deficiencies in providing technical services, may trigger the decertification process set forth in subpart C of this part. A failure by NRCS to identify a deficiency does not affect any action under the decertification process. TSPs are solely responsible for providing technical services that meet all NRCS standards and specifications.
Subpart B – Certification
§ 652.21 Certification criteria and requirements.
(a) To qualify for certification an individual must:
(1) Have the required technical training, education, and experience to perform the level of technical assistance for which certification is sought;
(2) Meet any applicable professional or business licensing or similar qualification standards established by State or Tribal law;
(3) Demonstrate, through documentation of training or experience, familiarity with NRCS guidelines, criteria, standards, and specifications as set forth in the applicable NRCS manuals, handbooks, field office technical guides, and supplements thereto for the planning and applying of specific conservation practices and management systems for which certification is sought; and
(4) Not be decertified in any State under subpart C of this part at the time of application for certification.
(b) To qualify for certification an entity or public agency must be authorized to provide such services in the jurisdiction and have a certified individual providing, in accordance with this part, technical services on its behalf.
(c) A technical service provider, as part of the certification by NRCS, must enter into a Certification Agreement with NRCS specifying the terms and conditions of the certification, including adherence to the requirements of this part, and acknowledging that failure to meet these requirements may result in ineligibility to receive payments from the Department, either directly or through the participant, for the technical services provided or may result in decertification.
(d) NRCS will certify Technical Service Providers for a time period specified by NRCS in the Certification Agreement, not to exceed 3 years. Decertification and Renewal of Certification is administered in accordance with § 652.26.
(e) NRCS may, pursuant to 31 U.S.C. 9701, establish and collect fees for the certification of technical service providers.
§ 652.22 Certification process for individuals.
(a) In order to be considered for certification as a technical service provider, an individual must:
(1) Submit an Application for Certification to NRCS in accordance with this section;
(2) Request certification through a recommending organization pursuant to § 652.25; or
(3) Request certification through an application submitted by a private-sector entity or public agency pursuant to § 652.23 or § 652.24, as appropriate.
(b) The application must contain the documentation demonstrating that the individual meets all requirements of paragraph (a) of § 652.21.
(c) NRCS will, within 60 days of receipt of an application, make a determination on the application submitted by an individual under paragraph (a)(1) of this section and in accordance with paragraph (a) of § 652.21. If all requirements are met, NRCS will:
(1) Enter into a Certification Agreement and certify the applicant as qualified to provide technical services for a specific practice, category, or categories of technical service;
(2) Place the applicant on the list of approved technical service providers when certified; and
(3) Make available to the public the list of approved technical service providers by practice or category of technical services.
(d) NRCS may decertify an individual in accordance with the decertification process set forth in subpart C of this part.
§ 652.23 Certification process for private-sector entities.
(a) A private sector entity that applies for certification must identify, and provide supporting documentation, that it has the requisite professional and business licensure within the jurisdiction for which it seek certification, and that it employs at least one individual, authorized to act on its behalf that:
(1) Has received certification on an individual basis in accordance with § 652.22; or
(2) Seeks certification on an individual basis as part of the private-sector entity’s certification and ensures that the requirements set forth in § 652.21(a) are contained within the private-sector entity’s application to support such certification.
(b) NRCS will determine pursuant to § 652.22 whether the individual(s) identified in the private-sector entity’s application meets the certification standards set forth in § 652.21 for the specific services the entity wishes to provide.
(c) NRCS will, within 60 days of receipt of an application, make a determination on the application submitted by an entity. If NRCS determines that all requirements for the private-sector entity and the identified individual(s) are met, NRCS will complete the actions described in paragraphs (c)(1) through (c)(3) of § 652.22.
(d) The Certification Agreement entered into with the private-sector entity shall:
(1) Identify the certified individuals who are authorized to perform technical services on behalf of and under the auspices of the entity’s certification;
(2) Require that the entity has, at all times, an individual who is a certified technical service provider authorized to act on the entity’s behalf;
(3) Require that the entity promptly provide an amended Certification Agreement to NRCS for approval when the list of certified individuals performing technical services under its auspices changes;
(4) Require that responsibility for any work performed by non-certified individuals be assumed by a certified individual who is authorized to act on the entity’s behalf; and
(5) Require that the entity be legally responsible for the work performed by any individual working under the auspices of its certification.
(e) NRCS may, in accordance with the decertification process set forth in this part, decertify the private sector entity, the certified individual(s) acting under the auspices of its certification, or both the private sector entity and the certified individual(s) acting under the auspices of its certification.
§ 652.24 Certification process for public agencies.
(a) A public agency that applies for certification must identify, and provide supporting documentation, that it has the authority within the jurisdiction within which it seeks to provide technical services and an individual or individuals authorized to act on its behalf:
(1) Has been certified as an individual in accordance with § 652.22; or
(2) Seeks certification as an individual as part of the public agency’s certification and sufficient information as set forth in § 652.21(a) is contained within the public agency’s application to support such certification.
(b) NRCS shall determine whether the individual identified in the public agency’s application meets the certification standards set forth in § 652.22.
(c) NRCS will, within 60 days of receipt of an application, make a determination on the application submitted by a public agency. If NRCS determines that all requirements for the public agency and the identified individual(s) are met, NRCS will perform the actions described in paragraph (c)(1) through (c)(3) of § 652.22. The Certification Agreement entered into with the public agency shall:
(1) Identify the certified individuals that are authorized to perform technical services on behalf of and under the auspices of the public agency’s certification;
(2) Require that the public agency have, at all times, an individual that is a certified technical service provider and is an authorized official of the public agency;
(3) Require that the public agency promptly provide to NRCS for NRCS approval an amended Certification Agreement when the list of certified individuals performing technical services under its auspices changes;
(4) Require that responsibility for any work performed by non-certified individuals be assumed by a certified individual that is authorized to act on the public agency’s behalf; and
(5) Require that the public agency be legally responsible for the work performed by any individual working under the auspices of its certification.
(d) NRCS may, in accordance with the decertification process set forth in subpart C of this part, decertify the public agency, the certified individual(s) acting under its auspices, or both the public agency and the certified individual(s) acting under its auspices.
§ 652.25 Alternative application process for individual certification.
(a) NRCS may enter into an agreement, including a memorandum of understanding or other appropriate instrument, with a recommending organization that NRCS determines has an adequate accreditation program in place to train, test, and evaluate candidates for competency in a particular area or areas of technical service delivery and whose accreditation program NRCS determines meets the certification criteria as set forth for the technical services to be provided.
(b) Recommending organizations will, pursuant to an agreement entered into with NRCS:
(1) Train, test, and evaluate candidates for competency in the area of technical service delivery;
(2) Recommend to NRCS individuals who it determines meet the NRCS certification requirements of § 652.21(a) for providing specific practices or categories of technical services;
(3) Inform the recommended individuals that they must meet the requirements of this part, including entering into a Certification Agreement with NRCS, in order to provide technical services under this part;
(4) Reassess individuals that request renewal of their certification pursuant to § 652.26 through the recommendation of the organization; and
(5) Notify NRCS of any concerns or problems that may affect the organization’s recommendation concerning the individual’s certification, recertification, certification renewal, or technical service delivery.
(c) Pursuant to an agreement with NRCS, a recommending organization may provide to the appropriate NRCS official a current list of individuals identified by the recommending organization as meeting NRCS criteria as set forth in § 652.21(a) for specific practices or categories of technical service and recommend that the NRCS official certify these individuals as technical service providers in accordance with this part.
(d) NRCS will, within 60 days, make a determination on the recommendation for certification issued by the recommending organization. If NRCS determines that all requirements for certification are met by the recommended individual(s), NRCS will perform the actions described in paragraphs (c)(1) through (c)(3) of § 652.22.
(e) NRCS may terminate an agreement with a recommending organization if concerns or problems with its accreditation program, its recommendations for certification, or other requirements under the agreement arise.
(f) NRCS may also enter into an agreement with a recommending organization that NRCS determines has an adequate accreditation program to certify individuals as technical service providers for specific practices or categories of technical service in accordance with this part.
(g) After submission of an Application for Certification under § 652.21, NRCS may certify an individual that has an appropriate specialty certification, including a sustainability specialty certification, as qualified to provide technical services for a specific practice, category, or categories of technical service.
(h) NRCS will identify, on its website, which recommending organizations or specialty certifications are recognized by NRCS as meeting NRCS quality criteria for certification of individuals under this part.
§ 652.26 Certification renewal.
(a) NRCS certifications are in effect for a time period specified by NRCS in the Certification Agreement, not to exceed 3 years and automatically expire unless they are renewed for an additional time period in accordance with this section.
(b) A technical service provider may request renewal of an NRCS certification by:
(1) Submitting a complete certification renewal application to NRCS or through a private sector entity, a public agency, or a recommending organization to NRCS at least 60 days prior to expiration of the current certification;
(2) Providing verification on the renewal form that the requirements of this part are met; and
(3) Agreeing to abide by the terms and conditions of a Certification Agreement.
(c) All certification renewals are in effect for a time period specified by NRCS in the Certification Agreement, not to exceed three years and before expiration, may be renewed for subsequent time period in accordance with this section.
Subpart C – Decertification
§ 652.31 Policy.
In order to protect the public interest, it is the policy of NRCS to maintain certification of those technical service providers who act responsibly in the provision of technical service, including meeting NRCS standards and specifications when providing technical service to participants. This section, which provides for the decertification of technical service providers, is an appropriate means to implement this policy.
§ 652.32 Causes for decertification.
A State Conservationist, in whose State a technical service provider is certified to provide technical service, may submit a Notice of Proposed Decertification to the Deputy Chief for Programs recommending decertification of the technical service provider in accordance with these provisions if the technical service provider, or someone acting on behalf of the technical service provider:
(a) Fails to meet NRCS standards and specifications in the provision of technical services;
(b) Violates the terms of the Certification Agreement, including but not limited to, a demonstrated lack of understanding of, or an unwillingness or inability to implement, NRCS standards and specifications for a particular practice for which the technical service provider is certified, or the provision of technical services for which the technical service provider is not certified;
(c) Engages in a scheme or device to defeat the purposes of this part, including, but not limited to, coercion, fraud, misrepresentation, or providing incorrect or misleading information; or
(d) Commits any other action of a serious or compelling nature as determined by NRCS that demonstrates the technical service provider’s inability to fulfill the terms of the Certification Agreement or provide technical services under this part.
§ 652.33 Notice of proposed decertification.
The State Conservationist will send by certified mail, return receipt requested, to the technical service provider proposed for decertification a written Notice of Proposed Decertification, which will contain the cause(s) for decertification, as well as any documentation supporting decertification. In cases where a private sector entity or public agency is being notified of a proposed decertification, any certified individuals working under the auspices of such organization who are also being considered for decertification will receive a separate Notice of Decertification and will be afforded separate appeal rights following the process set forth below.
§ 652.34 Opportunity to contest decertification.
To contest decertification, the technical service provider must submit in writing to the Deputy Chief for Programs, within 20 calendar days from the date of receipt of the Notice of Proposed Decertification, the reasons why the Deputy Chief for Programs should not decertify, including any mitigating factors as well as any supporting documentation.
§ 652.35 Deputy Chief of Programs decision.
Within 40 calendar days from the date of the notice of proposed decertification, the Deputy Chief for Programs will issue a written determination. If the Deputy Chief for Programs decides to decertify, the decision will set forth the reasons for decertification, the period of decertification, and the scope of decertification. If the Deputy Chief for Programs decides not to decertify the technical service provider, the technical service provider will be given written notice of that determination. The decertification determination will be based on an administrative record, which will be comprised of the Notice of Proposed Decertification and supporting documents, and if submitted, the technical service provider’s written response and supporting documentation. Both a copy of the decision and administrative record will be sent promptly by certified mail, return receipt requested, to the technical service provider.
§ 652.36 Appeal of decertification decisions.
(a) Within 20 calendar days from the date of receipt of the Deputy Chief for Program’s decertification determination, the technical service provider may appeal in writing to the NRCS Chief. The written appeal must state the reasons for appeal and any arguments in support of those reasons. If the technical service provider fails to appeal, the decision of the Deputy Chief for Programs is final.
(b) Final decision. Within 30 calendar days of receipt of the technical service provider’s written appeal, the Chief or his designee, will make a final determination, in writing, based upon the administrative record and any additional information submitted to the Chief by the technical service provider. The decision of the Chief, or his designee, is final and not subject to further administrative review. The Chief’s determination will include the reasons for decertification, the period of decertification, and the scope of decertification.
§ 652.37 Period of decertification.
The period of decertification will not exceed 3 years in duration and will be decided by the decertifying official, either the Deputy Chief for Programs or the Chief of NRCS, as applicable, based on their weighing of all relevant facts and the seriousness of the reasons for decertification, mitigating factors, if any, and the following general guidelines:
(a) For failures in the provision of technical service for which there are no mitigating factors, e.g., no remedial action by the technical service provider, a maximum period of three years decertification;
(b) For repeated failures in the provision of technical assistance for which there are mitigating factors, e.g., the technical service provider has taken remedial action to the satisfaction of NRCS, a maximum period of one to two years decertification; and
(c) For a violation of Certification Agreement terms, e.g., failure to possess technical competency for a listed practice, a period of one year or less, if the technical service provider can master such competency within a year period.
§ 652.38 Scope of decertification.
(a) When the technical service provider is a private sector entity or public agency, the decertifying official may decertify the entire organization, including all the individuals identified as authorized to provide technical services under the auspices of such organization. The decertifying official may also limit the scope of decertification, for example, to one or more specifically named individuals identified as authorized to provide technical services under the organization’s auspices or to an organizational element of such private sector entity or public agency. The scope of decertification will be set forth in the decertification determination and will be based upon the facts of each decertification action, including whether actions of particular individuals can be imputed to the larger organization.
(b) In cases where specific individuals are decertified only, an entity or public agency must file within 10 calendar days an amended Certification Agreement removing the decertified individual(s) from the Certification Agreement. In addition, the entity or public agency must demonstrate that, to the satisfaction of the Deputy Chief for Programs, the entity or public agency has taken affirmative steps to ensure that the circumstances resulting in decertification have been addressed.
§ 652.39 Mitigating factors.
In considering whether to decertify, the period of decertification, and scope of decertification, the deciding official will take into consideration any mitigating factors. Examples of mitigating factors include, but are not limited to the following:
(a) The technical service provider worked, in a timely manner, to correct any deficiencies in the provision of technical service;
(b) The technical service provider took the initiative to bring any deficiency in the provision of their technical services to the attention of NRCS and sought NRCS advice to remediate the situation; and
(c) The technical service provider took affirmative steps to prevent any failures in the provision of technical services from occurring in the future.
§ 652.40 Effect of decertification.
(a) The Department will not make payment under a program contract for the technical services of a decertified technical service provider that were provided during the period of decertification. Likewise, NRCS will not procure, or otherwise enter into an agreement for, the services of a decertified technical service provider during the period of decertification.
(b) National decertification list. NRCS shall maintain a current list of decertified technical service providers. NRCS shall remove decertified providers from the list of certified providers. Participants may not hire a decertified technical service provider. It is the participant’s responsibility to check the decertified list before hiring a technical service provider. Decertification of a technical service provider in one State decertifies the technical service provider from providing technical services under current programs in all States, the Caribbean Area, and the Pacific Basin Area.
§ 652.41 Effect of filing deadlines.
A technical service provider’s failure to meet the filing deadlines under this subpart will result in the forfeiture of appeal rights. All filings must be received by NRCS no later than the close of business (5 p.m.) the last day of the filing period.
§ 652.42 Recertification.
A decertified technical service provider may apply to be re-certified under the certification provisions of this part after the period of decertification has expired. A technical service provider may not utilize the certification renewal process in an attempt to be recertified after being decertified.
PART 653 – TECHNICAL STANDARDS
§ 653.1 General.
The Natural Resources Conservation Service (NRCS) is responsible for the technical adequacy of conservation practices installed under all NRCS programs, and those practices applied under programs administered by the Agricultural Stabilization and Conservation Service (ASCS) where NRCS has the technical responsibility. NRCS technical or financial assistance will be provided when the practices are applied according to established technical standards.
§ 653.2 Technical standards and criteria.
Technical standards and criteria have been established for all conservation practices. They provide the guidance and direction needed to assure that the practices meet the intended purpose and are of the quality needed to assure lasting for the design life. Standards and criteria are developed in consultation with universities, research institutions, and individual industrial and private firms and individuals. Research information and practical experience are used in setting standards. Changes and new technical standards and criteria are prepared in the same manner as set out above.
§ 653.3 Adaptation of technical standards.
Technical standards and criteria developed on a national basis may require special adaptation to meet local needs. These adaptations must be approved by the Administrator of the Natural Resources Conservation Service or his designee.
§ 653.4 Availability of technical standards.
Information on technical standards used by NRCS is available at field, area, or State offices of NRCS.
PART 654 – OPERATION AND MAINTENANCE
Subpart A – General
§ 654.1 Purpose and scope.
(a) This part sets forth the operation and maintenance requirements pertaining to measures installed with Natural Resources Conservation Service (NRCS) assistance. This includes measures installed under the following programs:
(1) Federal financially-assisted projects.
(i) Watershed Protection and Flood Prevention (WP&FP). See part 622 of this title.
(ii) Flood Prevention (FP). See part 623 of this title.
(iii) Specifically authorized projects.
(iv) Resource Conservation and Development (RC&D).
(2) Conservation Operations (CO).
(3) Emergency Watershed Protection (EWP). See part 624 of this title.
(4) Great Plains Conservation Program (GP). See part 631 of this title.
(b) These regulations shall apply to all Federal financially-assisted projects as set forth in subpart B for the duration of their respective operation and maintenance agreements. However, this does not relieve the sponsor(s) of any liability which may continue beyond the evaluated life of the measure under Federal, State, and local laws. Operation and maintenance agreements in effect prior to the effective date of these regulations are not affected by these regulations.
§ 654.2 Definitions.
Evaluated life. The time period for which project or measure benefits and costs have been evaluated. The evaluated life starts after the last project measure of the evaluation unit has been completed.
Landuser. Those who individually or collectively use land as owner, lessee, occupier, or by other arrangements which give them conservation planning or implementation concern and responsibility for the land involved.
Maintenance. The work and actions required to keep works of improvement in a condition to function for their intended purpose and the replacement of portions of project measures as specified in the O&M agreement.
Operation. The administration, management, and performance of services needed to insure the continued proper functioning of completed project measures.
Operation and maintenance agreement. A written agreement between the sponsor(s) and NRCS or other recipient(s) in which responsibilities and actions are established for the operation, maintenance, replacement, and inspection of project measures.
Plan of operation and maintenance. A detailed program of action to provide for performing the operation and maintenance of a specific project measure.
Project measures. An undertaking for watershed protection; flood prevention; the conservation, development, utilization, and disposal of water; the conservation and proper utilization of land; or a combination thereof. The undertaking may consist of vegetative, structural, or management measures or a combination thereof. Vegetative measures are those measures involving only seedbed preparation and/or the planting of vegetative material.
Public recreation and/or fish and wildlife facility. A project measure or part thereof which (a) creates or improves the potential for public recreational use and enjoyment, or (b) materially contributes to the preservation, production, or harvest of fish and wildlife.
Sponsor. An agency or organization with authority to provide local responsibility for a Federal financially-assisted local project under a program administered by NRCS.
State Conservationist. The NRCS officer responsible for NRCS activities within a particular State, the Commonwealth of Puerto Rico, or the U.S. Virgin Islands.
Structural measures. Structural measures are those measures that are excavated or constructed with concrete, earth, masonry, metal, rock, or other materials, and associated vegetation.
Subpart B – Federal Financially-Assisted Projects
§ 654.10 Operation and maintenance agreement.
A duly authorized official of the sponsor(s) must execute an O&M agreement with NRCS prior to NRCS furnishing financial assistance.
§ 654.11 Sponsor(s)’ responsibility.
(a) On non-Federal land, sponsor(s) are responsible for financing and performing without cost to the Federal Government, needed operation and maintenance (O&M) of project measures installed with Federal financial assistance.
(b) The Federal agency administering Federal land involving project measures is responsible either for performing or requiring the performance of O&M on land administered by that agency. If project measures benefit both Federal and non-Federal land or interests, the O&M may be performed by the Federal agency, the sponsor(s), or both as mutually agreed by the Federal agency, sponsor(s), and NRCS. If O&M of project measures is performed by mutual agreement, the cost of O&M may be shared by the Federal agency and sponsor(s) as agreed.
(c) The sponsor(s) shall obtain NRCS approval before modifying a project measure of changing land use to fulfill a different purpose.
§ 654.12 Financing operations and maintenance.
Sources of funds needed to operate and maintain project measures for the duration of the O&M agreement shall be identified in the watershed or RC&D measure plan.
§ 654.13 Designating responsibility for operation and maintenance.
Those organizations or agencies responsible for the O&M of each project measure shall be identified in the watershed or RC&D measure plan.
§ 654.14 Duration of sponsor(s)’ responsibility.
(a) Sponsor(s)’ responsibility for O&M of a completed project measure begins when a part of all of the contract installing such measure is completed and accepted from the contractor. If the installation of the project measure is performed by force account, division of work, or performance of work methods, the sponsor(s)’ O&M responsibilities begin on the date the work or portion thereof is completed as determined by NRCS, except for completed work located on Federal lands which are subject to special-use permits. The O&M agreement shall specify that O&M will continue through: (1) The evaluated life of the project, or (2) the evaluated life of measures that are economically evaluated as a unit, or (3) the useful life of cost-shared measures that are for land conservation or land utilization. The sponsor(s)’ duties and liabilities for the measures under other Federal and State laws are not affected by the expiration of the O&M agreement.
(b) For project measures being installed in segments, the sponsor(s) shall be responsible for O&M of completed and accepted segments. However, the NRCS may share in the cost of repairing damages to a completed segment when the damage is attributed to the continuation of work on uncompleted segments of the measure or when due to the fact that the measure was only partially completed.
§ 654.15 Operation and maintenance.
Sponsor(s) are to operate and maintain completed project measures in:
(a) Compliance with applicable Federal, State, and local laws, regulations, and ordinances.
(b) Compliance with any applicable conditions set forth in the instruments by which the landrights were acquired for installing, operating, and maintaining the project measures.
(c) A manner that will not significantly degrade the environment and will permit project measures to serve the purpose for which they were installed as set forth in the watershed or RC&D measure plan.
(d) Compliance with the time frames and O&M work items established in the plan of O&M and inspection reports.
(e) Accordance with agreements with NRCS on admission charges and user fees for public recreation and/or fish and wildlife facility. Admission or user fees shall be charged only as necessary to produce revenues required to amortize the sponsor(s)’ share of installation costs and to provide adequate O&M for that portion of the project measures pertaining to public recreation and/or fish and wildlife facility. Sponsor(s)’ admission or user fee charges require prior NRCS approval throughout the life of the O&M agreement.
(f) Accordance with the schedule for withdrawal of water in water impounding structures as specified in the watershed or RC&D measure plan or other legal documents.
(g) A manner consistent with the project objectives.
§ 654.16 Property management.
Sponsor(s) are to:
(a) Use real property acquired in whole or in part with Federal funds as long as needed for the purpose for which it was acquired and in accordance with the O&M agreement. If real property acquired in whole or in part with Federal funds is no longer needed for the purpose for which it was acquired, the sponsor(s) shall obtain NRCS approval for future use or disposition.
(b) Use nonexpendable personal property acquired in whole or in part with Federal funds as long as needed for the purpose for which it was acquired in accordance with the rules governing Federal grant property (34 CFR part 256).
(c) Establish, adopt, and comply with a property management system which meets the standards governing Federal grant property.
§ 654.17 Inspection.
(a) Sponsor(s) are to make periodic and special inspections of installed project measures as provided in the plan of O&M. For structural measures, inspections are to be made at least annually and after each major storm or occurrence of any unusual condition that might adversely affect the project measures. At the discretion of the State Conservationist, NRCS may assist sponsor(s) with their inspections. NRCS or land-administering agencies may make independent inspections at any time during the period covered by the O&M agreement.
(b) Sponsor(s) are to maintain a written record of each inspection and furnish NRCS and land-administering agencies a copy of that record. The record should indentify items inspected, O&M work that may be needed, a time frame to do the work, and the date of the inspection. The NRCS and land-administering agencies will provide the sponsor(s) a copy of a similar record of independent inspections.
(c) The sponsor(s) shall perform the O&M work listed as needed in the inspection reports within the time frame established for each item of work. Failure to perform O&M work will be considered a violation of the O&M agreement and will be handled in accordance with § 654.20.
(d) Sponsor(s) are to maintain a written record of work performed which is listed in the inspection report and a record of other significant O&M activity. The record will identify the measure, item of work, cost of performance, and date completed.
(e) Sponsor(s)’ records relative to the project shall be made available to NRCS for examination.
§ 654.18 Natural Resources Conservation Service responsibility.
The Natural Resources Conservation Service will assist the sponsor(s) in developing a watershed or RC&D measure plan which includes a description of O&M work and estimated cost, assist in the preparation of O&M agreements and plans of O&M, enter into O&M agreements with the sponsor(s), and notify the sponsor(s) of observed failures to comply with the O&M agreement.
§ 654.19 Plan of operation and maintenance.
(a) The plan for O&M shall be incorporated into and made a part of the O&M agreement. A separate plan of O&M shall be prepared for each project measure that is expected to a have a unique O&M need. Two or more measures with similar O&M needs may be included in a single plan for O&M.
(b) The plan of O&M shall include the known and anticipated items of O&M, an explanation of how the O&M activities may be carried out, a general time frame for making O&M inspections and for completing the needed O&M work, and the records and reports deemed appropriate by the sponsor(s) and NRCS.
§ 654.20 Violations of operation and maintenance agreement.
(a) The State Conservationist shall investigate alleged sponsor violations of the O&M agreement. If the State Conservationist determines that a violation has occurred that may prevent the project measure from functioning as intended, create a health or safety hazard, or prevent the accrual of project benefits, he shall provide sponsor(s) written notification.
(b) If the sponsor(s) fail to comply with the O&M agreement or fail to take corrective action, NRCS may notify authorities having appropriate jurisdiction, withhold further assistance to the project, require the sponsor(s) to reimburse the government for the NRCS share of the cost of the project, and/or pursue other action authorized by the O&M agreement or law.
Subpart C – Conservation Operations
§ 654.30 Responsibility for operation and maintenance.
The land user is responsible for O&M of soil and water conservation measures installed with NRCS assistance provided through soil, water, and other conservation districts.
§ 654.31 Performing operation and maintenance.
The method of performing O&M is to be at the option of the land user. The NRCS, working through districts, will furnish information and technical assistance as needed and requested to the extent NRCS resources permit.
Subpart D – Emergency Watershed Protection
§ 654.40 Responsibility for operation and maintenance.
(a) Non-Federal lands. The need for an O&M agreement will be determined by the State Conservationist. Where an O&M agreement is necessary, the sponsor(s) will provide the O&M and adopt standards for Federal grant property (34 CFR part 256). Where no O&M agreement is necessary, other arrangements will be made for complying with Federal property management.
(b) Federal lands. The Federal agency administering the Federal land is responsible for operating and maintaining emergency measures installed on Federal land.
§ 654.41 Performance of operation and maintenance.
(a) Arrangement. O&M is a prerequisite for approval of Federal emergency assistance when:
(1) The emergency measure needs to be operated and maintained in order to serve its intended purpose, or
(2) The emergency measure needs to be operated and maintained to insure that it will not become hazardous.
(b) Time of operation and maintenance. The sponsor(s)’ obligations for O&M begin when the measure is installed and extend for the duration of the time required for the emergency measure to serve the purpose for which it is installed.
(c) Performance. Operation and maintenance is to be performed in a manner that will protect the environment and otherwise comply with NRCS, State, and local requirements. The method of performing O&M is at the option of the sponsor(s).
Subpart E – Great Plains Conservation Program
§ 654.50 Responsibility for operation and maintenance.
Responsibility for practices under the Great Plains Conservation Program are contained in § 631.10 of this chapter.
PART 655 [RESERVED]
PART 656 – PROCEDURES FOR THE PROTECTION OF ARCHEOLOGICAL AND HISTORICAL PROPERTIES ENCOUNTERED IN NRCS-ASSISTED PROGRAMS
§ 656.1 Purpose.
This part prescribes Natural Resources Conservation Service (NRCS) policy, procedures, and guidelines for the implementation of archeological and historical laws and appropriate executive orders for administering NRCS programs.
§ 656.2 Archeological and historical laws and Executive orders applicable to NRCS-assisted programs.
(a) The Act of June 27, 1960, relating to the preservation of historical and archeological data, Pub. L. 86-523, 74 Stat. 220, as amended May 24, 1974; Pub. L. 93-291, 88 Stat. 174 (16 U.S.C. 469 et seq.), provides for the preservation of historical and archeological materials or data, including relics and specimens, that might otherwise be lost or destroyed as a result of any Federal or federally-assisted or licensed project, activity, or program.
(b) The National Historic Preservation Act, Pub. L. 89-665, 80 Stat. 915, as amended, (16 U.S.C. 470 et seq.), authorizes the Secretary of the Interior to maintain and expand a National Register of Historic Places (NRHP), including historic districts, sites, buildings, structures, and objects that are significant in American history, architecture, archeology, and culture. This law also establishes the Advisory Council on Historic Preservation (ACHP), to be appointed by the President. Section 106 of this Act (16 U.S.C. 470f), requires that prior to the approval of any Federal or federally-assisted or licensed undertaking, the Federal agency shall afford the ACHP a reasonable opportunity to comment, if properties listed in or eligible for listing in NRHP are affected.
(c) Executive Order 11593 (36 FR 8921, 3 CFR 1971 Comp. P. 154), Protection and Enhancement of the Cultural Environment, provides that the Federal government shall furnish leadership in preserving, restoring, and maintaining the historical and cultural environment of the nation, and that Federal agencies shall administer the cultural properties under their control in a spirit of stewardship and trusteeship for future generations; initiate measures necessary to direct their policies, plans, and programs in such a way that federally owned sites, structures, and objects of historical, architectural, or archeological significance are preserved, restored, and maintained. Section 1(3) directs that agencies institute procedures to assure that Federal plans and programs contribute to the preservation and enhancement of non-federally owned sites, structures, and objects of historical, architectural, or archeological significance in consultation with the ACHP.
§ 656.3 Policy.
(a) NRCS recognizes that significant historical, archeological, and architectural resources are an important part of our national heritage, the protection of which requires careful consideration in this agency’s project planning and implementation process.
(b) NRCS will take reasonable precautions to avoid damaging any significant historic, cultural, or natural aspects of our national heritage and will work with the National Park Service (NPS) and the Advisory Council on Historic Preservation (ACHP) in identifying and seeking to avoid or mitigate adverse effects of NRCS-assisted projects on the Nation’s significant cultural resources. The procedures contained in this part have been developed to comply with sections 1(3) and 2(c) of Executive Order 11593.
§§ 656.4-656.9 [Reserved]
PART 657 – PRIME AND UNIQUE FARMLANDS
Subpart A – Important Farmlands Inventory
§ 657.1 Purpose.
NRCS is concerned about any action that tends to impair the productive capacity of American agriculture. The Nation needs to know the extent and location of the best land for producing food, feed, fiber forage, and oilseed crops. In addition to prime and unique farmlands, farmlands that are of statewide and local importance for producing these crops also need to be identified.
§ 657.2 Policy.
It is NRCS policy to make and keep current an inventory of the prime farmland and unique farmland of the Nation. This inventory is to be carried out in cooperation with other interested agencies at the National, State, and local levels of government. The objective of the inventory is to identify the extent and location of important rural lands needed to produce food, feed, fiber, forage, and oilseed crops.
§ 657.3 Applicability.
Inventories made under this memorandum do not constitute a designation of any land area to a specific land use. Such designations are the responsibility of appropriate local and State officials.
§ 657.4 NRCS responsibilities.
(a) State Conservationist. Each NRCS State Conservationist is to:
(1) Provide leadership for inventories of important farmlands for the State, county, or other subdivision of the State. Each is to work with appropriate agencies of State government and others to establish priorities for making these inventories.
(2) Identify the soil mapping units within the State that qualify as prime. In doing this, State Conservationists, in consultation with the cooperators of the National Cooperative Soil Survey, have the flexibility to make local deviation from the permeability criterion or to be more restrictive for other specific criteria in order to assure the most accurate identification of prime farmlands for a State. Each is to invite representatives of the Governor’s office, agencies of the State government, and others to identify farmlands of statewide importance and unique farmlands that are to be inventoried within the framework of this memorandum.
(3) Prepare a statewide list of:
(i) Soil mapping units that meet the criteria for prime farmland;
(ii) Soil mapping units that are farmlands of statewide importance if the criteria used were based on soil information; and
(iii) Specific high-value food and fiber crops that are grown and, when combined with other favorable factors, qualify lands to meet the criteria for unique farmlands. Copies are to be furnished to NRCS Field Offices and to National Soil Survey Center. (see 7 CFR 600.2(c), 600.6)
(4) Coordinate soil mapping units that qualify as prime farmlands with adjacent States, including Major Land Resource Area Offices (see 7 CFR 600.4, 600.7) responsible for the soil series. Since farmlands of statewide importance and unique farmlands are designated by others at the State level, the soil mapping units and areas identified need not be coordinated among States.
(5) Instruct NRCS District Conservationists to arrange local review of lands identified as prime, unique, and additional farmlands of statewide importance by Conservation Districts and representatives of local agencies. This review is to determine if additional farmland should be identified to meet local decisionmaking needs.
(6) Make and publish each important farmland inventory on a base map of national map accuracy at an intermediate scale of 1:50,000 or 1:100,000. State Conservationists who need base maps of other scales are to submit their requests with justification to the Chief for consideration.
(b) National Soil Survey Center. The National Soil Survey Center is to provide requested technical assistance to State Conservationists and Major Land Resource Area Offices in inventorying prime and unique farmlands (see 7 CFR 600.2(c)(1), 600.4, 600.7). This includes reviewing statewide lists of soil mapping units that meet the criteria for prime farmlands and resolving coordination problems that may occur among States for specific soil series or soil mapping units.
(c) National Office. The Deputy Chief for Soil Survey and Resource Assessment (see 7 CFR 600.2(b)(3)) is to provide national leadership in preparing guidelines for inventorying prime farmlands and for national statistics and reports of prime farmlands.
§ 657.5 Identification of important farmlands.
(a) Prime farmlands – (1) General. Prime farmland is land that has the best combination of physical and chemical characteristics for producing food, feed, forage, fiber, and oilseed crops, and is also available for these uses (the land could be cropland, pastureland, rangeland, forest land, or other land, but not urban built-up land or water). It has the soil quality, growing season, and moisture supply needed to economically produce sustained high yields of crops when treated and managed, including water management, according to acceptable farming methods. In general, prime farmlands have an adequate and dependable water supply from precipitation or irrigation, a favorable temperature and growing season, acceptable acidity or alkalinity, acceptable salt and sodium content, and few or no rocks. They are permeable to water and air. Prime farmlands are not excessively erodible or saturated with water for a long period of time, and they either do not flood frequently or are protected from flooding. Examples of soils that qualify as prime farmland are Palouse silt loam, 0 to 7 percent slopes; Brookston silty clay loam, drained; and Tama silty clay loam, 0 to 5 percent slopes.
(2) Specific criteria. Prime farmlands meet all the following criteria: Terms used in this section are defined in USDA publications: “Soil Taxonomy, Agriculture Handbook 436”; “Soil Survey Manual, Agriculture Handbook 18”; “Rainfall-erosion Losses From Cropland, Agriculture Handbook 282”; “Wind Erosion Forces in the United States and Their Use in Predicting Soil Loss, Agriculture Handbook 346”; and “Saline and Alkali Soils, Agriculture Handbook 60.”
(i) The soils have:
(A) Aquic, udic, ustic, or xeric moisture regimes and sufficient available water capacity within a depth of 40 inches (1 meter), or in the root zone (root zone is the part of the soil that is penetrated or can be penetrated by plant roots) if the root zone is less than 40 inches deep, to produce the commonly grown cultivated crops (cultivated crops include, but are not limited to, grain, forage, fiber, oilseed, sugar beets, sugarcane, vegetables, tobacco, orchard, vineyard, and bush fruit crops) adapted to the region in 7 or more years out of 10; or
(B) Xeric or ustic moisture regimes in which the available water capacity is limited, but the area has a developed irrigation water supply that is dependable (a dependable water supply is one in which enough water is available for irrigation in 8 out of 10 years for the crops commonly grown) and of adequate quality; or,
(C) Aridic or torric moisture regimes and the area has a developed irrigation water supply that is dependable and of adequate quality; and,
(ii) The soils have a temperature regime that is frigid, mesic, thermic, or hyperthermic (pergelic and cryic regimes are excluded). These are soils that, at a depth of 20 inches (50 cm), have a mean annual temperature higher than 32 °F (0 °C). In addition, the mean summer temperature at this depth in soils with an O horizon is higher than 47 °F (8 °C); in soils that have no O horizon, the mean summer temperature is higher than 59 °F (15 °C); and,
(iii) The soils have a pH between 4.5 and 8.4 in all horizons within a depth of 40 inches (1 meter) or in the root zone if the root zone is less than 40 inches deep; and,
(iv) The soils either have no water table or have a water table that is maintained at a sufficient depth during the cropping season to allow cultivated crops common to the area to be grown; and,
(v) The soils can be managed so that, in all horizons within a depth of 40 inches (1 meter) or in the root zone if the root zone is less than 40 inches deep, during part of each year the conductivity of the saturation extract is less than 4 mmhos/cm and the exchangeable sodium percentage (ESP) is less than 15; and,
(vi) The soils are not flooded frequently during the growing season (less often than once in 2 years); and,
(vii) The product of K (erodibility factor) × percent slope is less than 2.0, and the product of I (soils erodibility) × C (climatic factor) does not exceed 60; and
(viii) The soils have a permeability rate of at least 0.06 inch (0.15 cm) per hour in the upper 20 inches (50 cm) and the mean annual soil temperature at a depth of 20 inches (50 cm) is less than 59 °F (15 °C); the permeability rate is not a limiting factor if the mean annual soil temperature is 59 °F (15 °C) or higher; and,
(ix) Less than 10 percent of the surface layer (upper 6 inches) in these soils consists of rock fragments coarser than 3 inches (7.6 cm).
(b) Unique farmland – (1) General. Unique farmland is land other than prime farmland that is used for the production of specific high value food and fiber crops. It has the special combination of soil quality, location, growing season, and moisture supply needed to economically produce sustained high quality and/or high yields of a specific crop when treated and managed according to acceptable farming methods. Examples of such crops are citrus, tree nuts, olives, cranberries, fruit, and vegetables.
(2) Specific characteristics of unique farmland. (i) Is used for a specific high-value food or fiber crop; (ii) Has a moisture supply that is adequate for the specific crop; the supply is from stored moisture, precipitation, or a developed-irrigation system; (iii) Combines favorable factors of soil quality, growing season, temperature, humidity, air drainage, elevation, aspect, or other conditions, such a nearness to market, that favor the growth of a specific food or fiber crop.
(c) Additional farmland of statewide importance. This is land, in addition to prime and unique farmlands, that is of statewide importance for the production of food, feed, fiber, forage, and oil seed crops. Criteria for defining and delineating this land are to be determined by the appropriate State agency or agencies. Generally, additional farmlands of statewide importance include those that are nearly prime farmland and that economically produce high yields of crops when treated and managed according to acceptable farming methods. Some may produce as high a yield as prime farmlands if conditions are favorable. In some States, additional farmlands of statewide importance may include tracts of land that have been designated for agriculture by State law.
(d) Additional farmland of local importance. In some local areas there is concern for certain additional farmlands for the production of food, feed, fiber, forage, and oilseed crops, even though these lands are not identified as having national or statewide importance. Where appropriate, these lands are to be identified by the local agency or agencies concerned. In places, additional farmlands of local importance may include tracts of land that have been designated for agriculture by local ordinance.
PART 658 – FARMLAND PROTECTION POLICY ACT
§ 658.1 Purpose.
This part sets out the criteria developed by the Secretary of Agriculture, in cooperation with other Federal agencies, pursuant to section 1541(a) of the Farmland Protection Policy Act (FPPA or the Act) 7 U.S.C. 4202(a). As required by section 1541(b) of the Act, 7 U.S.C. 4202(b), Federal agencies are (a) to use the criteria to identify and take into account the adverse effects of their programs on the preservation of farmland, (b) to consider alternative actions, as appropriate, that could lessen adverse effects, and (c) to ensure that their programs, to the extent practicable, are compatible with State and units of local government and private programs and policies to protect farmland. Guidelines to assist agencies in using the criteria are included in this part. The Department of Agriculture (hereinafter USDA) may make available to States, units of local government, individuals, organizations, and other units of the Federal Government, information useful in restoring, maintaining, and improving the quantity and quality of farmland.
§ 658.2 Definitions.
(a) Farmland means prime or unique farmlands as defined in section 1540(c)(1) of the Act or farmland that is determined by the appropriate state or unit of local government agency or agencies with concurrence of the Secretary to be farmland of statewide of local importance. “Farmland” does not include land already in or committed to urban development or water storage. Farmland “already in” urban development or water storage includes all such land with a density of 30 structures per 40-acre area. Farmland already in urban development also includes lands identified as “urbanized area” (UA) on the Census Bureau Map, or as urban area mapped with a “tint overprint” on the USGS topographical maps, or as “urban-built-up” on the USDA Important Farmland Maps. Areas shown as white on the USDA Important Farmland Maps are not “farmland” and, therefore, are not subject to the Act. Farmland “committed to urban development or water storage” includes all such land that receives a combined score of 160 points or less from the land evaluation and site assessment criteria.
(b) Federal agency means a department, agency, independent commission, or other unit of the Federal Government.
(c) Federal program means those activities or responsibilities of a Federal agency that involve undertaking, financing, or assisting construction or improvement projects or acquiring, managing, or disposing of Federal lands and facilities.
(1) The term “Federal program” does not include:
(i) Federal permitting, licensing, or rate approval programs for activities on private or non-Federal lands; and
(ii) Construction or improvement projects that were beyond the planning stage and were in either the active design or construction state on August 4, 1984.
(2) For the purposes of this section, a project is considered to be “beyond the planning stage and in either the active design or construction state on August 4, 1984” if, on or before that date, actual construction of the project had commenced or:
(i) Acquisition of land or easements for the project had occurred or all required Federal agency planning documents and steps were completed and accepted, endorsed, or approved by the appropriate agency;
(ii) A final environmental impact statement was filed with the Environmental Protection Agency or an environmental assessment was completed and a finding of no significant impact was executed by the appropriate agency official; and
(iii) The engineering or architectural design had begun or such services had been secured by contract. The phrase “undertaking, financing, or assisting construction or improvement projects” includes providing loan guarantees or loan insurance for such projects and includes the acquisition, management and disposal of land or facilities that a Federal agency obtains as the result of foreclosure or other actions taken under a loan or other financial assistance provided by the agency directly and specifically for that property. For the purposes of this section, the phrase “acquiring, managing, or disposing of Federal lands and facilities” refers to lands and facilities that are acquired, managed, or used by a Federal agency specifically in support of a Federal activity or program, such as national parks, national forests, or military bases, and does not refer to lands and facilities that are acquired by a Federal agency as the incidental result of actions by the agency that give the agency temporary custody or ownership of the lands or facilities, such as acquisition pursuant to a lien for delinquent taxes, the exercise of conservatorship or receivership authority, or the exercise of civil or criminal law enforcement forfeiture or seizure authority.
(d) State or local government policies or programs to protect farmland include: Zoning to protect farmland; agricultural land protection provisions of a comprehensive land use plan which has been adopted or reviewed in its entirety by the unit of local government in whose jurisdiction it is operative within 10 years preceding proposed implementation of the particular Federal program; completed purchase or acquisition of development rights; completed purchase or acquisition of conservation easements; prescribed procedures for assessing agricultural viability of sites proposed for conversion; completed agricultural districting and capital investments to protect farmland.
(e) Private programs to protect farmland means programs for the protection of farmland which are pursuant to and consistent with State and local government policies or programs to protect farmland of the affected State and unit of local government, but which are operated by a nonprofit corporation, foundation, association, conservancy, district, or other not-for-profit organization existing under State or Federal laws. Private programs to protect farmland may include: (1) Acquiring and holding development rights in farmland and (2) facilitating the transfer of development rights of farmland.
(f) Site means the location(s) that would be converted by the proposed action(s).
(g) Unit of local government means the government of a county, municipality, town, township, village, or other unit of general government below the State level, or a combination of units of local government acting through an areawide agency under a State law or an agreement for the formulation of regional development policies and plans.
§ 658.3 Applicability and exemptions.
(a) Section 1540(b) of the Act, 7 U.S.C. 4201(b), states that the purpose of the Act is to minimize the extent to which Federal programs contribute to the unnecessary and irreversible conversion of farmland to nonagricultural uses. Conversion of farmland to nonagricultural uses does not include the construction of on-farm structures necessary for farm operations. Federal agencies can obtain assistance from USDA in determining whether a proposed location or site meets the Act’s definition of farmland. The USDA Natural Resources Conservation Service (NRCS) field office serving the area will provide the assistance. Many State or local government planning offices can also provide this assistance.
(b) Acquisition or use of farmland by a Federal agency for national defense purposes is exempted by section 1547(b) of the Act, 7 U.S.C. 4208(b).
(c) The Act and these regulations do not authorize the Federal Government in any way to regulate the use of private or non-Federal land, or in any way affect the property rights of owners of such land. In cases where either a private party or a non-Federal unit of government applies for Federal assistance to convert farmland to a nonagricultural use, the Federal agency should use the criteria set forth in this part to identify and take into account any adverse effects on farmland of the assistance requested and develop alternative actions that would avoid or mitigate such adverse effects. If, after consideration of the adverse effects and suggested alternatives, the landowners want to proceed with conversion, the Federal agency, on the basis of the analysis set forth in § 658.4 and any agency policies or procedures for implementing the Act, may provide or deny the requested assistance. Only assistance and actions that would convert farmland to nonagricultural uses are subject to this Act. Assistance and actions related to the purchase, maintenance, renovation, or replacement of existing structures and sites converted prior to the time of an application for assistance from a Federal agency, including assistance and actions related to the construction of minor new ancillary structures (such as garages or sheds), are not subject to the Act.
(d) Section 1548 of the Act, as amended, 7 U.S.C. 4209, states that the Act shall not be deemed to provide a basis for any action, either legal or equitable, by any person or class of persons challenging a Federal project, program, or other activity that may affect farmland. Neither the Act nor this rule, therefore, shall afford any basis for such an action. However, as further provided in section 1548, the governor of an affected state, where a state policy or program exists to protect farmland, may bring an action in the Federal district court of the district where a Federal program is proposed to enforce the requirements of section 1541 of the Act, 7 U.S.C. 4202, and regulations issued pursuant to that section.
§ 658.4 Guidelines for use of criteria.
As stated above and as provided in the Act, each Federal agency shall use the criteria provided in § 658.5 to identify and take into account the adverse effects of Federal programs on the protection of farmland. The agencies are to consider alternative actions, as appropriate, that could lessen such adverse effects, and assure that such Federal programs, to the extent practicable, are compatible with State, unit of local government and private programs and policies to protect farmland. The following are guidelines to assist the agencies in these tasks:
(a) An agency may determine whether or not a site is farmland as defined in § 658.2(a) or the agency may request that NRCS make such a determination. If an agency elects not to make its own determination, it should make a request to NRCS on Form AD-1006, the Farmland Conversion Impact Rating Form, available at NRCS offices, for determination of whether the site is farmland subject to the Act. If neither the entire site nor any part of it are subject to the Act, then the Act will not apply and NRCS will so notify the agency. If the site is determined by NRCS to be subject to the Act, then NRCS will measure the relative value of the site as farmland on a scale of 0 to 100 according to the information sources listed in § 658.5(a). NRCS will respond to these requests within 10 working days of their receipt except that in cases where a site visit or land evaluation system design is needed, NRCS will respond in 30 working days. In the event that NRCS fails to complete its response within the required period, if further delay would interfere with construction activities, the agency should proceed as though the site were not farmland.
(b) The Form AD 1006, returned to the agency by NRCS will also include the following incidental information: The total amount of farmable land (the land in the unit of local government’s jurisdiction that is capable of producing the commonly grown crop); the percentage of the jurisdiction that is farmland covered by the Act; the percentage of farmland in the jurisdiction that the project would convert; and the percentage of farmland in the local government’s jurisdiction with the same or higher relative value than the land that the project would convert. These statistics will not be part of the criteria scoring process, but are intended simply to furnish additional background information to Federal agencies to aid them in considering the effects of their projects on farmland.
(c) After the agency receives from NRCS the score of a site’s relative value as described in § 658.4(a) and then applies the site assessment criteria which are set forth in § 658.5 (b) and (c), the agency will assign to the site a combined score of up to 260 points, composed of up to 100 points for relative value and up to 160 points for the site assessment. With this score the agency will be able to identify the effect of its programs on farmland, and make a determination as to the suitability of the site for protection as farmland. Once this score is computed, USDA recommends:
(1) Sites with the highest combined scores be regarded as most suitable for protection under these criteria and sites with the lowest scores, as least suitable.
(2) Sites receiving a total score of less than 160 need not be given further consideration for protection and no additional sites need to be evaluated.
(3) Sites receiving scores totaling 160 or more be given increasingly higher levels of consideration for protection.
(4) When making decisions on proposed actions for sites receiving scores totaling 160 or more, agency personnel consider:
(i) Use of land that is not farmland or use of existing structures;
(ii) Alternative sites, locations and designs that would serve the proposed purpose but convert either fewer acres of farmland or other farmland that has a lower relative value;
(iii) Special siting requirements of the proposed project and the extent to which an alternative site fails to satisfy the special siting requirements as well as the originally selected site.
(d) Federal agencies may elect to assign the site assessment criteria relative weightings other than those shown in § 658.5 (b) and (c). If an agency elects to do so, USDA recommends that the agency adopt its alternative weighting system (1) through rulemaking in consultation with USDA, and (2) as a system to be used uniformly throughout the agency. USDA recommends that the weightings stated in § 658.5 (b) and (c) be used until an agency issues a final rule to change the weightings.
(e) It is advisable that evaluations and analyses of prospective farmland conversion impacts be made early in the planning process before a site or design is selected, and that, where possible, agencies make the FPPA evaluations part of the National Environmental Policy Act (NEPA) process. Under the agency’s own NEPA regulations, some categories of projects may be excluded from NEPA which may still be covered under the FPPA. Section 1540(c)(4) of the Act exempts projects that were beyond the planning stage and were in either the active design or construction state on the effective date of the Act. Section 1547(b) exempts acquisition or use of farmland for national defense purposes. There are no other exemptions of projects by category in the Act.
(f) Numerous States and units of local government are developing and adopting Land Evaluation and Site Assessment (LESA) systems to evaluate the productivity of agricultural land and its suitability for conversion to nonagricultural use. Therefore, States and units of local government may have already performed an evaluation using criteria similar to those contained in this rule applicable to Federal agencies. USDA recommends that where sites are to be evaluated within a jurisdiction having a State or local LESA system that has been approved by the governing body of such jurisdiction and has been placed on the NRCS State conservationist’s list as one which meets the purpose of the FPPA in balance with other public policy objectives, Federal agencies use that system to make the evaluation.
(g) To meet reporting requirements of section 1546 of the Act, 7 U.S.C. 4207, and for data collection purposes, after the agency has made a final decision on a project in which one or more of the alternative sites contain farmland subject to the FPPA, the agency is requested to return a copy of the Form AD-1006, which indicates the final decision of the agency, to the NRCS field office.
(h) Once a Federal agency has performed an analysis under the FPPA for the conversion of a site, that agency’s, or a second Federal agency’s determination with regard to additional assistance or actions on the same site do not require additional redundant FPPA analysis.
§ 658.5 Criteria.
This section states the criteria required by section 1541(a) of the Act, 7 U.S.C. 4202(a). The criteria were developed by the Secretary of Agriculture in cooperation with other Federal agencies. They are in two parts, (1) the land evaluation criterion, relative value, for which NRCS will provide the rating or score, and (2) the site assessment criteria, for which each Federal agency must develop its own ratings or scores. The criteria are as follows:
(a) Land Evaluation Criterion – Relative Value. The land evaluation criterion is based on information from several sources including national cooperative soil surveys or other acceptable soil surveys, NRCS field office technical guides, soil potential ratings or soil productivity ratings, land capability classifications, and important farmland determinations. Based on this information, groups of soils within a local government’s jurisdiction will be evaluated and assigned a score between 0 to 100, representing the relative value, for agricultural production, of the farmland to be converted by the project compared to other farmland in the same local government jurisdiction, This score will be the Relative Value Rating on Form AD 1006.
(b) Site Assessment Criteria. Federal agencies are to use the following criteria to assess the suitability of each proposed site or design alternative for protection as farmland along with the score from the land evaluation criterion described in § 658.5(a). Each criterion will be given a score on a scale of 0 to the maximum points shown. Conditions suggesting top, intermediate and bottom scores are indicated for each criterion. The agency would make scoring decisions in the context of each proposed site or alternative action by examining the site, the surrounding area, and the programs and policies of the State or local unit of government in which the site is located. Where one given location has more than one design alternative, each design should be considered as an alternative site. The site assessment criteria are:
(1) How much land is in nonurban use within a radius of 1.0 mile from where the project is intended?
(2) How much of the perimeter of the site borders on land in nonurban use?
(3) How much of the site has been farmed (managed for a scheduled harvest or timber activity) more than 5 of the last 10 years?
(4) Is the site subject to State or unit of local government policies or programs to protect farmland or covered by private programs to protect farmland?
(5) How close is the site to an urban built-up area?
(6) How close is the site to water lines, sewer lines and/or other local facilities and services whose capacities and design would promote nonagricultural use?
(7) Is the farm unit(s) containing the site (before the project) as large as the average-size farming unit in the county? (Average farm sizes in each county are available from the NRCS field offices in each State. Data are from the latest available Census of Agriculture, Acreage of Farm Units in Operation with $1,000 or more in sales.)
(8) If this site is chosen for the project, how much of the remaining land on the farm will become non-farmable because of interference with land patterns?
(9) Does the site have available adequate supply of farm support services and markets, i.e., farm suppliers, equipment dealers, processing and storage facilities and farmer’s markets?
(10) Does the site have substantial and well-maintained on-farm investments such as barns, other storage buildings, fruit trees and vines, field terraces, drainage, irrigation, waterways, or other soil and water conservation measures?
(11) Would the project at this site, by converting farmland to nonagricultural use, reduce the demand for farm support services so as to jeopardize the continued existence of these support services and thus, the viability of the farms remaining in the area?
(12) Is the kind and intensity of the proposed use of the site sufficiently incompatible with agriculture that it is likely to contribute to the eventual conversion of surrounding farmland to nonagricultural use?
(c) Corridor-type Site Assessment Criteria. The following criteria are to be used for projects that have a linear or corridor-type site configuration connecting two distant points, and crossing several different tracts of land. These include utility lines, highways, railroads, stream improvements, and flood control systems. Federal agencies are to assess the suitability of each corridor-type site or design alternative for protection as farmland along with the land evaluation information described in § 658.4(a). All criteria for corridor-type sites will be scored as shown in § 658.5(b) for other sites, except as noted below:
(1) Criteria 5 and 6 will not be considered.
(2) Criterion 8 will be scored on a scale of 0 to 25 points, and criterion 11 will be scored on a scale of 0 to 25 points.
§ 658.6 Technical assistance.
(a) Section 1543 of the Act, 7 U.S.C. 4204 states, “The Secretary is encouraged to provide technical assistance to any State or unit of local government, or any nonprofit organization, as determined by the Secretary, that desires to develop programs or policies to limit the conversion of productive farmland to nonagricultural uses.” In § 2.62, of 7 CFR part 2, subtitle A, NRCS is delegated leadership responsibility within USDA for the activities treated in this part.
(b) In providing assistance to States, local units of government, and nonprofit organizations, USDA will make available maps and other soils information from the national cooperative soil survey through NRCS field offices.
(c) Additional assistance, within available resources, may be obtained from local offices of other USDA agencies. The Agricultural Stabilization and Conservation Service and the Forest Service can provide aerial photographs, crop history data, and related information. A reasonable fee may be charged. In many States, the Cooperative Extension Service can provide help in understanding and identifying farmland protection issues and problems, resolving conflicts, developing alternatives, deciding on appropriate actions, and implementing those decisions.
(d) Officials of State agencies, local units of government, nonprofit organizations, or regional, area, State-level, or field offices of Federal agencies may obtain assistance by contacting the office of the NRCS State conservationist. A list of Natural Resources Conservation Service State office locations appears in appendix A, § 661.6 of this title. If further assistance is needed, requests should be made to the Assistant Secretary for Natural Resources and Environment, Office of the Secretary, Department of Agriculture, Washington, DC 20250.
§ 658.7 USDA assistance with Federal agencies’ reviews of policies and procedures.
(a) Section 1542(a) of the Act, 7 U.S.C. 4203, states, “Each department, agency, independent commission or other unit of the Federal Government, with the assistance of the Department of Agriculture, shall review current provisions of law, administrative rules and regulations, and policies and procedures applicable to it to determine whether any provision thereof will prevent such unit of the Federal Government from taking appropriate action to comply fully with the provisions of this subtitle.”
(b) Section 1542(b) of the Act, 7 U.S.C. 4203, requires, as appropriate, each department, agency, independent commission, or other unit of the Federal Government, with the assistance of the Department of Agriculture, to develop proposals for action to bring its programs, authorities, and administrative activities into conformity with the purpose and policy of the Act.
(c) USDA will provide certain assistance to other Federal agencies for the purposes specified in section 1542 of the Act, 7 U.S.C. 4203. If a Federal agency identifies or suggests changes in laws, administrative rules and regulations, policies, or procedures that may affect the agency’s compliance with the Act, USDA can advise the agency of the probable effects of the changes on the protection of farmland. To request this assistance, officials of Federal agencies should correspond with the Chief, Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 20013.
(d) To meet the reporting requirements of section 1546 of the Act, 7 U.S.C. 4207, and for data collection purposes, each Federal agency is requested to report to the Chief of the Natural Resources Conservation Service by November 15th of each year on progress made during the prior fiscal year to implement sections 1542 (a) and (b) of the Act, 7 U.S.C. 4203 (a) and (b). Until an agency fully implements those sections, the agency should continue to make the annual report, but may omit the report upon full implementation. However, an agency is requested to file an annual report for any future year in which the agency has substantially changed its process for compliance with the Act.
SUBCHAPTER G – MISCELLANEOUS
PART 660 [RESERVED]
PART 661 – PUBLIC INFORMATION AND RIGHT TO PRIVACY
Subpart A – Availability of Records and Materials
§ 661.1 General.
This part is issued in accordance with the regulations of the Secretary of Agriculture at 7 CFR 1.1 through 1.16 implementing the Freedom of Information Act, 5 U.S.C. 552. The Secretary’s regulations, as implemented by the regulations in this part, govern the availability to the public of records of the Natural Resources Conservation Service and the records for which the Natural Resources Conservation Service has custodial responsibility.
§ 661.2 Public access and copying.
Natural Resources Conservation Service will make available for public inspection and copying those materials covered by 5 U.S.C. 552(a)(2) as set out in the Secretary’s regulations.
§ 661.3 Requests for records.
Requests for records under 5 U.S.C. 552(a)(3) will be made in accordance with 7 CFR 1.3(a). The titles and mailing addresses of the officials in Natural Resources Conservation Service authorized to receive requests for records are shown in Appendix A of this subpart. Authority is hereby delegated to these officials to make determinations regarding such requests in accordance with 7 CFR 1.4(c).
§ 661.4 Appeals.
Any person whose request for records above is denied shall have the right to appeal that denial in accordance with 7 CFR 1.3(e). All appeals shall be addressed to: Administrator, Natural Resources Conservation Service, U.S. Department of Agriculture, P.O. Box 2890, Washington, DC 20013.
§ 661.5 Exempt records.
Records exempt under 5 U.S.C. 552(b) may be withheld in accordance with 7 CFR 1.11.
Subpart B – Right to Privacy
§ 661.6 General.
Natural Resources Conservation Service implementation of the Privacy Act of 1974, 5 U.S.C. 552a is contained in the regulations of the Secretary, 7 CFR 1.110 through 1.123.
Appendix A to Part 661 – Availability of Information
The following list pertaining to the availability of information are published in accordance with the requirement and pursuant to the authority of sections 552, 559 of Title 5, United States Code.
Request for examination and copying of a record or for copies of records shall be made to the Deputy Administrator for Administration, Natural Resources Conservation Service, U.S. Department of Agriculture, P.O. Box 2890, Washington, DC 20013, or to the State Conservationist in any of the listed State offices.
Only those matters pertaining to the particular State and matters of general application will be available in each State office.